CRIMINAL APPEAL NO 377 OF 2021 RAPHAEL PIUS GWESSO AND ANOTHER VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA fCORAM: LILA. 3.A.. KITUSI. 3.A.. And MASHAKA. J.A.^ CRIMINAL APPEAL NO. 377 OF 2021 RAPHAEL PIUS @ GWESSO...... 1st APPELLANT RICHARD JACOBO @ NTABINDA 2 nd APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the decision of the High Court of Tanzania at Iringa) (Matpqolo, J.) dated the 29thday of June, 2021 in Criminal Session No. 09 of 2018 JUDGMENT OF THE COURT 18th March &. 21st June, 2024 KITUSI. 3.A.: This is an appeal from convictions for murder that led to the appellants being sentenced to death by hanging. Patrick James @ Tweve, a taxi driver at Mafinga town within Mufindi District in Iringa Region, died an unnatural death on 13th September, 2016 and his body was recovered some hours later after a search. It was alleged that the appellants were the last passengers in the deceased's vehicle and were seen with him when he was still alive. Further that they made away with the deceased's motor vehicle Reg. No. 351 CWA, a Toyota Carina which he was operating as a taxi. Investigations traced the motor vehicle to Kahama town within Shinyanga Region, where the person found in possession thereof named the appellants as the people from whom he purchased it. It was not sheer luck that the motor vehicle was found at Kahama. According to Simon James Tweve (PW4) the deceased's brother, he circulated on social media the photo of the motor vehicle in question. It turned out that a certain businessman based at Mafinga was travelling from Mafinga to Mwanza via Kahama. While at Kahama on transit, he spotted the motor vehicle and called PW4 to notify him. PW4 travelled to Kahama, saw the motor vehicle and set the law enforcement machinery in motion by reporting to the police. The person who was found in possession of the motor vehicle was one Paul Samwel Ntumami (PW8). PW8 testified that the motor vehicle was sold to him by two people and that, he knows one of them being the second appellant, a familiar person who was living at Kahama. The second appellant, according to PW8, was the one who introduced the other man, the first appellant, as being his brother-in-law and the vendor of the motor 2 vehicle. PW4 testified that the police at Kahama informed him that the second appellant was a witness to the sale transaction. It was asserted that the said sellers of the car had no original Registration card, so PW8 withheld payment of Shs. 700,000/= being the balance. It was agreed that the balance would be paid upon the sellers handing to PW8 the original Registration Card for the motor vehicle. PW8 waited for the original Registration card to no avail, and eventually he got impatient and suspicion got the better of him. He reported the matter to the Police. Consequently, the police arrested the second appellant, who was easily available at Kahama and initially charged him for the offence of stealing by agent. The second appellant named the first appellant as the actual seller of the motor vehicle. But that man had gone missing. Later when PW4 turned up at Kahama Police Station and reported that the owner of the motor vehicle had been murdered, the police re­ arrested the second appellant who was on police bail and still within the township of Kahama, and booked him for murder. Btood is thicker than water, goes the adage, for PW4 took it upon himself to trace the first appellant to Dar es Salaam. The details of how he managed to do that are not very clear, but PW4 was managed to get necessary particulars sufficient to hunt down his fugitive. Using that 3 information, an acquaintance of PW4 told him he had spotted the culprit in Dar es Salaam. PW4 travelled to Dar Es Salaam and reported his mission at Magomeni police station. The police advised him to trace the culprit and if he happened to see him, he should effect his arrest with the assistance of community police. Somebody told PW4 that the first appellant is usually at Manzese Uzuri area where his wife resides. PW4 testified that he and the team that was assisting him stayed for more than a week trying to apprehend the first appellant and finally their patience paid dividends. The first appellant was finally arrested and taken back to Mafinga Police Station to answer charges of murder. Incidentally, PW3 who happened to be the deceased's brother-in- law testified that on the day before his in-law's death, he saw him with two passengers in his taxi. This happened when the deceased stopped by at PW3's residence to inquire about availability of timber, which his passengers wanted to purchase. PW3 stated that he could identify one of the two passengers who was known to him as Musoma. Musoma, it seems, was an unofficial name by which the first appellant was known by a section of the community, including PW2, his landlady. PW2 last saw the first appellant on 13th September, 2016, the same day PW3 allegedly saw him with the deceased alive. The foregoing evidence would later be the basis for the trial court concluding that the appellants were the last persons to be seen with the deceased alive, as earlier intimated. The first appellant allegedly recorded a cautioned statement at the Police Station which was admitted into evidence as Exhibit P7. The appellants were also identified by PW3 and PW8 in identification parades. The prosecution relied on that evidence to maintain that the appellants were the perpetrators of the murder. They also tendered a copy of the agreement for sale of the motor vehicle and a copy as well as the original of the Registration card of the motor vehicle. The appellants' defence mainly consisted of denials and that it was a surprise for them to be arrested in connection with the murder. They denied any involvement in the sale of the motor vehicle to PW8. The second appellant went so far as stating that he has never even been to Mafinga before, implying that he could not have executed the murder there. The first appellant repudiated and retracted the confession, repeating the contention he had unsuccessfully raised earlier, that he had been tortured into signing it. 5 The three assessors, who sat with the learned Judge, unanimously returned a verdict of guilty against both appellants. The learned Judge agreed with them and convicted the appellants on the ground that they were the last persons to be seen with the deceased and offered no explanation regarding his death. Further he relied on the first appellant's cautioned statement which he said had details which were too personal to have been given by anyone other than the said first appellant, citing the case of Emmanuel Lohay 8t Another v. Republic, Criminal Appeal No. 278 of 2010 (unreported) for that. After all, reasoned the learned Judge, not every apparent violation of the provisions of the CPA would automatically lead to a fatal exclusion of the evidence in question as held in Nyerere Nyague v. Republic, Criminal Appeal No. 67 of 2010 (unreported). This was meant to resolve a complaint by the first appellant's counsel that his cautioned statement was recorded in violation of section 57 (3) (a) of the CPA. In addition, the learned Judge held that there was no suggestion as to how the appellants had been prejudiced, so the complaint was taken to be inconsequential. Another basis which found the appellants' conviction was the doctrine of recent possession. The High Court was of the view that the defence offered by the appellants in which they made flat denials, did 6 not displace an inference of guilt against them because they were in possession of the deceased's property which they sold to PW8. The case of Joseph Mkumbwa & Another v. Republic, Criminal Appeal No. 94 of 2007 (unreported) was cited. The trial court also concluded that the appellants were liars, then held that lies of an accused person may form a basis of his conviction. As already alluded to, the appellants were convicted of murder and each sentenced to the mandatory death sentence. Aggrieved by the convictions and sentences, each appellant lodged a memorandum of appeal consisting of six grounds. The said six grounds are identical, in that the first appellant's grounds are exactly a replica of the second appellant's grounds of appeal. The first ground of appeal, which we intend to deal with ahead of others, raises issue with a matter that is increasingly becoming sore; the issue of participation of assessors. It goes thus: 'The Honourable Judge erred in law and fact by failing to inform, sum up and explain to the assessors on the following important issues: a) The role and responsibility o f the assessors before commencing trial. b) The evidence adduced by the appellant during trial. c) Vital points o f law relevant to the case". Messrs. Jally Willy Mongo and Jassey Mwamgiga, learned advocates for the first and second appellants respectively, argued this ground fervently and pressed us to nullify the entire proceedings for the reason that the relevant provisions of the CPA regarding participation of assessors were fatally violated. Their submissions were in three limbs as reflected in the first ground of appeal. Mr, Mongo's initial onslaught was on the learned trial Judge's omission to explain to the assessors their duties and role, which he argued was wrong. For this, the learned counsel cited the case of Betram Nkwera @ Mhesa v. The DPP, Criminal Appeal No. 567 of 2019 (unreported). Secondly, he criticized the learned Judge for not summing up to the assessors, the substance of the evidence that was given by the first appellant. He submitted that summing up to the assessors is a mandatory requirement under section 298 (1) of the CPA. He pointed out, referring to the relevant pages of the record, that there is a detailed summing up in relation to the evidence that was given by the prosecution witnesses, but there is no similar detailed summing up 8 in relation to the evidence that was given by the appellants. He submitted that this omission affected the opinions of the assessors as reflected in the record of appeal. The third limb alleges that the learned Judge did not direct the assessors to the vital legal points in the case, and citing Betram Nkwera (supra) again argued, that such omission is fatal. The learned counsel listed down a number of vital legal points which were relied upon by the learned Judge in arriving at his decision, but which were not articulated by the Judge in the summing up. These are circumstantial evidence, corroboration, last person to be seen with the deceased, and evidential value of lies of an accused person. Mr. Mwamgiga for the second appellant associated himself with the learned submissions of Mr. Mongo regarding the nullity of the proceedings due to the irregularities in the participation of the assessors. Mr. Mongo submitted further, supported by Mr. Mwamgiga again, that if we uphold these arguments on the above ground of appeal and nullify the proceedings, we should not order a retrial because the prosecution case is so fraught of doubts that the conviction cannot be sustained. 9 Mr. Yahaya Misango, learned State Attorney who prosecuted the case for the respondent Republic, conceded to, invariably, all of the points raised by the learned counsel for the appellants in the first ground of appeal in that, first; the learned trial Judge did not explain to the assessors, their duties. He however submitted that the appellants were not prejudiced because, after all, the record is evident that the assessors performed their duties adequately. He further submitted that the error is curable under section 388 of the CPA and cited the case of Shimbi Daud @ Kulwa & 4 Others v. Republic, Criminal Appeal No. 660 of 2020 (unreported) in support. He secondly conceded to the fact that the defence case was not summed up in the same details as was the prosecution case, but quickly added that the said defence case was no better than mere flat denials, anyway. Lastly, the learned State Attorney conceded to the argument that the learned Judge did not direct the assessors to a number of vital points of law. On this point, Mr, Misango submitted that the learned advocates have not submitted on how these omissions prejudiced the appellants. Holding on to the contention that the proceedings were a nullity and calling us not to order a retrial, Mr. Mongo made submissions aimed at challenging the vitality of the prosecution case, the first being 10 whether or not PW8 obtained the deceased's motor vehicle by purchasing it from the appellants or any of them. Submitting, Mr. Mongo called PW8 a liar for alleging that the appellant sold the motor vehicle to him while admitting that the sale agreement was not signed by the said first appellant. Mr. Mongo sought to demonstrate PW8's untruthful ness by pointing out that, at one point he testified that he was totally an illiterate who could neither read nor write, but PW7 and PW14 contradicted him when the former testified that the same PW8 signed the seizure certificate, and the latter testified that PW8 signed the statement which he recorded at the police. The learned advocate further submitted on another weak link in the prosecution case, that the advocate before whom the sale agreement was allegedly signed, was not called to testify, rendering the prosecution case unproved on this fact. The learned advocate attacked the evidence of PW3 and PW4 too and insisted that the trial court should not have relied on their word. He pointed out what he considered to be a contradiction between PW3 and PW4 in that in PW4's own evidence he admitted that in making his police statement, he did not state that PW3 told him that one of the people who had earlier visited him driving in the decesed's vehicle was the first 11 appellant. The learned counsel submitted that PW4's evidence is inconsistent with his statement made at the police. Citing the case of Alberto Mendes v. Republic, Criminal Appeal No. 473 of 2017 (unreported), the learned advocate moved us to hold that it was improper for the trial court to rely on the evidence of PW4. We shall now consider these arguments. There seems to be no dispute that the learned trial judge did not comply with the relevant laws regarding involvement of assessors in the trial; first at the beginning of the trial by not explaining to them their role, and later during the summing up as submitted and conceded. The only point where the learned state and private counsel differ is the consequences, and this is where we intend to address, instantly. Beginning with the omission to explain the duties to the assessors, we readily agree with the learned State Attorney that where there is evidence on the record that the assessors fully participated in the proceedings and there is no suggestion of prejudice on the appellants, then that omission is not fatal. We have held so in a number of cases such as; Ibrahimu Ramadhani @ Ally v. Republic, Criminal Appeal No. 410 of 2021 (unreported). For that reason, we dismiss that limb of the first ground of appeal. 12 We turn to the second limb of the first ground of appeal. The argument by the learned State Attorney that reference to the defence case in detail would have made no difference because theirs were mere flat denial, is on point and not novel. In the case of Asha Mkwizu Hauli v. Republic, Criminal Appeal No. 80 of 1985 [TZCA] 22 (30 October 1986) TANZLII, having considered the thrust of the evidence before the trial court, the Court took a similar view and dismissed the argument regarding involvement of assessors by holding that: 'Indeed, we may add that the learned judge too, in his judgment, did not direct himseif at aii on those matters. This was cieariy wrong. But we are satisfied that had he properiy directed the assessors and himseif, he wouid have come to the same conclusion". In this case, the alleged omission to refer to the defence case in details, though true, would in our view, be neither here nor there, because there was hardly any substance in the testimonies given by the appellants to warrant the trial court arriving at a different conclusion. Like the Court observed in Asha Mkwizu Hauli (supra), the conclusion would have been the same even if the trial court had not made the error subject of this ground of appeal. We dismiss the second limb of the first ground of appeal, as well. In our view, the third limb of the first ground of appeal, which we intend to address next, needs a little bit of more consideration. In view of Mr. Misango's clear concession that the learned judge did not direct the assessors to vital points of law and that it was an error, the issue for our determination is whether such error is inconsequential for the reason advanced by the learned State Attorney, that it has not been established that the appellants were prejudiced. It must be appreciated that the erstwhile Court of Appeal for East Africa in Andrea Kulanga & Others v. Republic [1958] EA 684 adopted its earlier statement in Washington Odingo v. Republic [1954] 21 EACJ 392 that; "The opinions o f assessors can be o f great value and assistance to a trialjudge but only if they fully understand the facts o f the case before them in relation to the relevant law. I f the law is not explained and attention drawn to the salient facts o f the casef the value o f assessors' opinions is correspondingly reduced" This position has been followed subsequently. See for instance, the case of Charles Lyatii @ Sadala v. Republic, Criminal Appeal No. 290 of 2011 (unreported). 14 We are aware of the diverging views of the Court on the matter and that is for obvious reasons, that every case is decided on its own peculiar facts. One of those views, which we tend to agree with, is that failure to direct assessors to vital points is fatal only if those points eventually form the basis of conviction and, like Mr. Misango has submitted, where the omission prejudices the accused. In the instant case, all of the points which informed the learned judge's finding of guilt were not referred to in the summing up. We ask ourselves if the appellants were prejudiced. It seems that the famous case of Washington Odindo (supra) is, at times, read out of its context. This is not the first time this remark is being made. In Safari Anthony @ Mtelemko & Another v. Republic, Criminal Appeal No. 404 of 2021 [2023] TZCA 17768 (23 October 2023) TANZLII, the Court clarified on the import of Washington Odindo in the following terms: " We wish to note too, that nowhere in that decision was it heid that a triai may be vitiated by an omission to address vital points o f law to the assessors. Further, that decision did not hold that where summing up is not done, the entire judgment o f the judge is invalid or that the trial is vitiated. In actual fact, not only that the ground o f appeal which was challenging the High 15 Court for not summing up was dismissed, but also the appeai itself was not spared. In our view, the case o f Washington Odindo (supra) is a strong and compelling authority that even without addressing anything to assessors; a trial cannot be vitiated, leave alone addressing assessors on vital points which is only necessary where a trial Judge wants to ask assessors any specific questions". With respect, we stand by this contemporary and progressive position. We wish to add that the principle in Washington Odindo, is that the infractions only reduce the value of the assessors' opinions. We have considered the tone of the opinions of the assessors, and we are satisfied that they demonstrated their full involvement and presence of their mind in the case. For instance the first assessor stated : "Honorable Judge, in my opinion, I find the accused persons to be guilty o f murder due to the evidence received. The prosecution evidence by witnesses and the exhibits tendered in court, the photographs o f the motor vehicle, sale agreement The name o f the person found in the card o f the original card. That is why I find the accused guilty o f murder. That is all". 16 The second and third assessors gave invariably same opinion. With respect, as observed earlier, when those opinions are considered, it cannot be said that the assessors did not participate in the trial. It is clear from those opinions that they found the appellants guilty on the basis that they were found in constructive possession of the motor vehicle that had been in the deceased's hands before he met his death, which in essence, is the doctrine of recent possession. For that reason, we dismiss the first ground of appeal and hold that, contrary to what has been submitted by and on behalf of the appellants, the proceedings were not vitiated. As observed above, if anything, it is only the value of the assessors' opinions that will eventually be correspondingly reduced. Next for consideration is whether the decision of the learned Judge convicting the appellants is faulty. This complaint is addressed (in the grounds of appeal) specifically in grounds 2, 3, 5 and 6 of appeal. Ground 2 faults the trial court's application of the doctrine of recent possession, in this case. Ground 3 seeks to establish that it was wrong for the court to rely on the testimonies of the prosecution witnesses who were unreliable. Ground 5 questions the trial court for not drawing an adverse inference from the prosecution's failure to call material 17 witnesses. Lastly it is argued that the case was not proved beyond reasonable doubt. Earlier, Mr. Mongo, supported by Mr. Mwamgiga, had advanced arguments which we were asked to consider in refraining to order a retrial. In our view, though raised in persuading us not to order a retrial, those arguments basically fault the trial Judge's finding of guilt and the ultimate conviction. At the outset, we are satisfied that apart from the cautioned statement of the first appellant, in which the appellant allegedly confessed, the prosecution case rests on the testimonies of PW3, PW4 and PW8. We also note that the trial court found the appellants to be liars and that finding formed an additional basis for their conviction. Let us subject the testimonies of PW3 and PW4 to scrutiny. PW3 testified that he just had a glimpse of the first appellant whom he knew as going by the name of Musoma. It is not quite clear if PW3 communicated this fact to PW4 but there is evidence from PW4 which he gave when responding to questions that were put to him by Mr. Mongo regarding the statement he had earlier recorded at the police, admitting that he did not state to them the fact that PW3 revealed to him the identity of one of the culprits. However, according to the evidence, he 18 posted information of the motor vehicle on Facebook and had the culprits identified. These arguments on the inconsistencies were made by Mr. Mongo during the trial but the learned Judge played them down, taking the view that cases are decided on the basis of the evidence given on oath as opposed to statements made at the police which may be affected by the type of questions put to the witness by the police during the recording. The learned Judge cited the cases of Ngeti Mwagnia v. Republic [1961] 1 EA 3 and Abdallah Rajabu Waziri v. Republic, Criminal Appeal No. 116 of 2004 (unreported), to support that position. We need to point out that, impeachment of a witness by referring him to statements he made earlier is a creature of the statute - section 164 of the Evidence Act, therefore not at all novel. What it aims at, is to look at the consistence of that witness so as to gauge his credibility. Therefore, when that test is applied in respect of PW4, his testimony begs the question, what prompted him to pick on the first appellant when PW3 who alleges to have seen him with the deceased did not disclose that fact to him? There is no answer to that question. Similarly, with PW3. He testified that he just had a glimpse of the man he named as Musoma. PW4's story also misses the relevant bolts and 19 nuts in that his relative who saw the post on Facebook and identified the first appellant in Dar es Salaam before giving him the tip, did not testify. The testimonies of PW3 and PW4 which ought to be telling a continuous story are, if we may use a metaphor, like two scenes of different movies. This being a rehearing as it were, and as we find PW4 not consistent, we shall be very hesitant in believing him. We now consider the evidence of PW8. Mr. Mongo dismissed PW8 as unreliable for telling a lie. In this case the alleged lie is that PW8 stated that he could neither read nor write, which turned out to be untrue. We do not need to make the issue of PW8's lie on his literacy any more dramatic than it should be. The lie in question is PW8's statement that he was totally illiterate which was contradicted by PW7 who said that PW8 signed the seizure certificate. Our take is that if that was a lie, then it was on a matter not material to the case, for the question leaps to the mind is, what has illiteracy got to do with physically receiving a car suspected to have been stolen? Another point is that, what we have here is a contradiction between PW7 and PW8 on the latter's literacy. There is therefore no justification for concluding that the contradiction makes PW8 a liar and PW7 truthful. On the basis of what we have concluded above, we shall 20 evaluate PW8's evidence aware that he deserves credence like any other witness. In assessing PW8's credibility, we take into account that he is the one who reported to the police about the disappearance of the seller of the car who had been introduced to him by the second appellant. There is nothing technical about this quest for his right and it tells of PW8's candidness. We find the evidence of PW8 impeccable on the fact that he purchased the motor vehicle from the first appellant who had been introduced to him by the second appellant, a known person. This is so in our view, even though the lawyer who drew up the contract did not testify or that the first appellant did not sign it. We are satisfied on PW8's oral testimony, he received the motor vehicle from the first appellant in the presence of the second appellant. We must point out though, that the role of the second appellant in the transaction was just to facilitate the meeting of PW8 and the seller of the car. This is according to the evidence of PW8 himself but also the second appellant's conduct which was not consistent with guilt. This is because, while the seller of the car had gone missing, the second appellant was carrying on with his life within Kahama District, even after he had been questioned by the police and granted bail. This in our view, 21 is a sign that the second appellant was not a party to the intent of the seller. The learned Judge castigated the appellants as liars and took that as an additional reason for finding them guilty. We make two observations in this regard. The first is that lies of an accused may be fatal, as rightly held by the learned Judge, but that is only where the prosecution has established its case according to rules of evidence. The second is that, in criminal cases, an accused is never found guilty on the basis of weakness in his defence, which the learned Judge appreciated at some point in his judgment. See Omar Rashid @ Kangwiza v. Republic, Criminal Appeal No. 405 of 2021 (unreported). Considering the foregoing, particularly the fact that PW3 did not identify the second appellant in the deceased's vehicle and his behaviour subsequent to the initial interrogation by the police, we are satisfied that the evidence against him was too spotty to ground a conviction. Having dealt with the evidence of PW3, PW4 and PW8 what follows for our consideration is the first appellant's cautioned statement and the learned Judge's finding in dismissing the maker's repudiation, that it carried too personal and detailed facts that would not have been supplied by any person other than the first appellant. It found the statement to be implicating the maker, and proceeded to convict him. 22 We agree with the learned trial Judge's analysis of the law on cautioned statements as well as his finding that in this case, it was voluntarily made by the first appellant. Though prone to criticisms no evidence can be better than that of an accused who confesses to a crime. See Ibrahimu Ibrahimu Dawa v. Republic, Criminal Appeal No. 260 of 2016 and Mohamed Haruna Mtupeni & Another v. Republic, Criminal Appeal No. 259 of 2007 (both unreported). In view of the foregoing, we hold that the trial court properly invoked the doctrine of recent possession, so we dismiss the second ground of appeal which sought to challenge it Next is the complaint in the third ground of appeal that the witnesses for the prosecution were unreliable. We dismiss this ground too because it is only PW4 we have doubted some of his coincidental knowledge. PW3 and PW8 identified the first appellant and picked him during identification parades. Similarly, we dismiss the fifth ground of appeal regarding the prosecution's omission to call material witnesses. Those witnesses would not have added any value. We are therefore satisfied that the case against the first appellant was proved beyond reasonable doubt. The appeal by the first appellant is dismissed in its entirety. 23 For the reasons we have earlier shown, we allow the second appellant's appeal and order his immediate release from prison if he is not otherwise being held lawfully. DATED at DAR ES SALAAM this 20th day of June, 2024. A. S. LILA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL The Judgment delivered this 21st day of June, 2024 in the presence of Mr. Jassey Mwamgiga, learned Counsel for the 2nd Appellant also holding brief for Mr. Jally Willy Mongo, learned Counsel for the 1st Appellant and Mr. Majid Matitu, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. 24