CR

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA fCORAM: LILA. 3.A.. KITUSI. J.A.. And MASHAKA. J.A.l CRIMINAL APPEAL NO. 339 OF 2021 SILAVIO KAPWELA.................................................................. APPELLANT VERSUS THE REPUBLIC......................................................................RESPONDENT r (Appeal from the decision of the High Court of Tanzania at Iringa) fKente, 3.1 dated the 11th day of March, 2021 in Criminal Session No. 43 of 2017 JUDGMENT OF THE COURT 12th & 20th March, 2024 KITUSI. 3.A.: The appellant was prosecuted for murder, convicted and sentenced to death. It was alleged by the prosecution that jointly and together with another man who was later acquitted, the appellant caused the death of one Ambosise Kipingi referred to in the proceedings as his paramour or wife. It was further alleged that prior to the alleged murder, the couple had a pending misunderstanding as a result of which at one time, the appellant seriously assaulted the deceased and slashed down her growing crops. At the time of the alleged killing, the appellant is said to i have been executing orders of the village council to re-plant the deceased's crops. It was therefore quite natural, it seems, that when the deceased was found dead, the appellant was the prime suspect. The prosecution led evidence to that effect through PW1 who was Chairman of Ng'ang'ange village during the material times, as well as a confession recorded at the Police station by F. 934 D/C Legnard (PW2), and an extra judicial confessional statement recorded by PW3, a Primary Court Magistrate. The appellant gave a sworn defence, disputing the evidence adduced by PW2 and PW3 on the alleged confessions. He also raised what seems to be an alibi, by stating that throughout the times relevant to the alleged killing, he was not anywhere near the deceased because he had gone somewhere else to make timber. At the end of the day, the High Court accepted the evidence of the prosecution and dismissed the defence version as being incapable of raising any reasonable doubts. On that basis, as earlier intimated, the High Court found the appellant guilty and convicted him, with the mandatory death sentence being imposed. It found the other accused not guilty and acquitted him. 2 This appeal by the appellant initially raised five grounds of appeal for our consideration. However, at the instance of Mr. Jally Willy Mongo, learned advocate representing the appellant, only one ground was argued. This ground was raised belatedly through a supplementary memorandum of appeal, and it reads: 11The trial conducted by the trial court against your humble appellant offended section 298 (1) o f the Criminal Procedure (sic) Code [Cap. 20 R.E. 2019 now R.E. 2022] as amended " The respondent Republic was represented by Messrs Titto Ambangile Mwakalinga and Burton Mayage, learned State Attorneys. We agreed with the scheme suggested by Mr. Mongo and agreed to by learned State Attorneys, that they should address us on the supplementary memorandum of appeal first. The gist of the supplementary ground of appeal is that the summing up notes which would have been at page 75 of the record is missing.Mr. Mongo submitted that by the fact that the summing up notes are not in the record, there is no proof that the High Court summed up the evidence and law to the assessors before they gave their respective opinions. He referred us to the case of Bernadeta Bura @ Lulu v. Republic [2016] Vol. I TLR 125, that summing up must be in writing and the notes must be part of the record. The learned counsel submitted further that violation of the settled law in the cases including that of Bernadeta Bura (supra) renders the trial a nullity for having been conducted without the aid of assessors as per sections 265 and 298 (1) of the CPA. Mr. Mayage, learned State Attorney conceded to the violation of section 298 (1) of the CPA in that it is true there is no summing up notes in the record of appeal. He also agreed with Mr. Mongo that the violation reduced the proceedings into a nullity. However, Mr. Mongo and Mr. Mayage expressed different views as to the way forward. Mr. Mongo while aware that ordinarily we should have ordered a retrial, submitted that we should not make that order because the evidence by the prosecution is not good enough to prove the case against the appellant beyond reasonable doubt. He cited instances of inadequacies in the evidence for the prosecution, which we do not intend to go into at the moment. The crux of Mr. Mongo's submission against an order of retrial is that, it will provide the prosecution with an opportunity to rectify those inadequacies, to the prejudice of the appellant. 4 Mr. Mayage maintained that a retrial is the natural consequence in the event, as the instant, where summing up notes are nowhere to be traced. He cited the case of G. 2573 PC Pacificus Cleophance Simon v. Republic, Criminal Appeal No. 484 of 2016 (unreported). The learned State Attorney also referred to what he considered to be strong points in the prosecution case. Similarly, we desist from referring to those suggested strong points. To begin with, for trials which are, by law, required to be conducted with the aid of assessors like the one at hand, the importance of summing up to assessors need not be emphasized. It appreciates the fact that, for the assessors, who are lay members, to render meaningful opinions on the matter before the court, the Judge should have first directed their minds to the vital points of facts and law. See the case of Chacha Ghati @ Magige v. Republic, Criminal Appeal No. 406 of 2017 [2021] TZCA 132 (27 April, 2021), relevant at the time the alleged offence was committed, where it was held that failure of the Judge to conduct summing up properly renders the trial a nullity because it is as good as one that has been conducted without the aid of assessors. In the case cited above, summing up was conducted, only that it was improperly so conducted. When the record of appeal, as in this case, has no summing up notes at all, it becomes all too clear that it was not conducted or that there is no evidence that it was. See also the case of Omari Khalfan v. Republic, Criminal Appeal No. 107 of 2015 [2015] TZCA 533 (17 August, 2015) in which the summing up notes were "included in the record o f appeal belatedly" and found to be inadequate. See also in Limi Limbu v. Republic, Criminal Appeal No. 140 of 2016 (unreported). In the circumstances, we agree with Mr. Mongo and the learned State Attorney that the proceedings were a nullity. But we are tempted to pose the question; which part of the proceedings are null? We shall give an answer to this question immediately below. As we alluded to earlier, Mr. Mongo cautioned against the court making an order of retrial because, he submitted, the prosecution case suffers from inadequacies which render the prosecution case incapable of securing a conviction. On the other hand, Mr. Mayage has prayed for an order of retrial, insisting that the prosecution has an ace up its sleeve to net a conviction. With respect, either way, the above arguments wrongly presuppose that the entire proceedings were a nullity, but we hold a different view. Looking at the record of appeal, (page 34) three assessors were duly selected to participate in the trial and they thereafter took part throughout. Then, from page 75 to 78 the three assessors rendered very detailed opinions. We think and hold that there is nothing wrong in the proceedings from page 34 to page 75 to justify our order of nullification. The only disturbing part begins at the second half of the same page 75, where the learned Judge wrote: " Court Summing up is done to the assessors in the open court this 24* day of February, 2021" There are two anomalies here. The first relates to the mismatch on the dates. While the above order of the learned Judge and the opinions of the assessors are dated 19/02/2021 the same record suggests that the opinions were rendered on 24/02/2021. The second and graver anomaly is that the summing up notes are not there. Although in our previous decisions we have consistently ordered retrial, is it not better, we ask, to order a fresh summing up and spare the rest of the proceedings from the wrath of nullification, than to order a retrial and face the agony of tracing the witnesses? When all is considered, the only part of the proceedings we find to be a nullity is that part from page 75 of the record which relates to summing up to the end. There is nothing null in the proceedings prior to page 75 of the record. Therefore, we allow the supplementary ground of appeal, nullify those proceedings from page 75 to the end, quash the judgment and set aside the sentence. We remit the record to the High Court for it to conduct a summing up, record the opinions of the same assessors or those remaining and compose a judgment according to law. In the meantime, the appellant to remain in custody to await the resumed proceedings as ordered above. DATED at IRINGA this 19th day of March, 2024. A. S. LILA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL The Judgement delivered this 20th day of March, 2024 in presence of Mr. Jassey Mwamgiga holding brief for Mr. Jally Mongo, learned counsel for the Appellant and Mr. Sauli Makori, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the