francis so siza rwambo vs republic 2021 tzca 90 9 april 2021

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MWARI3A, J. A.. NDIKA, J.A. And SEHEL. J. A.^ CRIMINAL APPEAL NO. 17 OF 2019 FRANCIS s/o SIZA RWAMBO......................... ............................ APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Dar es Salaam) (Matoqolo. J.1 ) Dated the 13th day of December, 2018 in Criminal Sessions Case No. 58 of 2014 JUDGMENT OF THE COURT 19th March & 9th April, 2021 SEHEL, J.A.: This appeal is against the conviction and death sentence meted to the appellant by the High Court of Tanzania at Dar es Salaam in Criminal Session Case No. 58 of 2014. He was charged with the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 R.E. 2002. It was alleged by the prosecution that on 15th day of April, 2013 at Tondoroni Village, within Kisarawe District in Coast Region the appellant did murder one, Naomi d/o Isaka Makungu. Upon a full trial, he was convicted as charged and sentenced to suffer death by hanging. In order to appreciate the gist of the appellant's apprehension, arraignment and conviction it is crucial to briefly state the background facts as follows: the deceased was the biological mother of the appellant and they both resided in the same house at Tondoroni Village in Coast Region. It was the prosecution case that, on 15th April, 2013 at around 07:00 hours when Stella Robert Mkongwa (PW4) was taking a shower she heard a cry from her neighbour, the deceased shouting "jamani nakufd' literally translating "Guys I am dyincf. PW4 got out and according to her evidence, saw the appellant hitting the deceased with a pestle (Exhibit P2). She tried to plead to him not to kill his mother and went to call neighbours, mama Tito and baba Ashura, while shouting for help. According to PW4, people responded and gathered at the scene of crime but the appellant was not there. He fled away. Mustafa Ally (PW1) was amongst the villagers who arrested the appellant on that day in Tondoroni shrubs. They took him back to the scene and police officers were called. Dr. William Michael Madasi from Kisarawe Dispensary conducted a post mortem examination on the deceased's body. The post mortem report (Exhibit P5) revealed that the cause of death of the deceased was head injury. As the doctor could not be traced because he 2 was no longer working at Kisarawe Dispensary, the prosecution during trial issued a notice in writing for use of his statement in terms of section 34B of the Evidence Act, Cap. 6 R.E 2002 (Exhibit P4). According to the investigator of the case, WP. 4982 CpI. Anna (PW3) she arrived at the scene of crime on that day and saw the body of the deceased lying outside the house with a pestle beside it and the appellant was already arrested by villagers. She took the pestle as an exhibit, interrogated and recorded witness statements and the cautioned statement of the appellant (Exhibit P3). Godfrey Ambele (PW2) a Village Executive Officer (VEO) recorded the extra judicial statement of the appellant (Exhibit PI). It was his evidence that the appellant admitted to have killed the deceased. In his defence, the appellant acknowledged that his mother died but he could recall the date of her death. Nevertheless, he completely denied to have killed her. At the end of the trial, the three assessors who sat with the learned trial Judge returned a unanimous verdict of guilty as charged. The learned trial Judge concurred with the assessors that the offence of 3 murder was fully established against the appellant. He was therefore convicted and sentenced as indicated earlier. Aggrieved, the appellant filed to this Court an appeal advancing five grounds in his memorandum of appeal which are: - 1. That, the court did not disclose at the trial and in the judgment if the appellant was ordered to be detained in a mental hospital for medical examination to find if the appellant was o f sound mind that he could be responsible for his action. 2. That, the trial court grossly misdirected itself in law and in fact in taking and relying on evidence o f extra-judicial statement (exhibit PI) and the cautioned statement (exhibit P3) without considering the motive o f the killing which could have made the court feel that the maker o f such statement might have been insane. 3. That, the learned trial judge erred in law and in fact in taking and relying on evidence o f a single eye-witness in that, in examination she stated that when she got out, she found the appellant beating the deceased, but in cross examination she admitted to have said in her statement to the police that when she got out, she saw the appellant running away. 4. Thatm , the trial court erroneously admitted the report on post-mortem examination (exhibit P5) tendered by WP 4982 Cpi Anna who was not a competent witness to tender such report since she was not a medical doctor. 5. That the statement o f Geofrey Ambele (PW2) and the substance o f evidence in extra-judicial statement (Exhibit PI) as well as the cautioned statement (exhibit P3) were not read at the committal proceeding, but was acted upon to convict the appellant contrary to the provision o f section 289 o f the Criminal Procedure Act, Cap. 20 R.E 2002 (the CPA). When the appeal was called for hearing, Mr. Mashaka Ngole, learned advocate represented the appellant whereas Mr. Emmanuel Maleko, learned Senior State Attorney, appeared for the respondent Republic and he was assisted by Ms. Sofa Bimbiga, learned State Attorney. Mr. Ngole, at the very outset, informed the Court that he had consulted his client and agreed with him that he should abandon 5 grounds number two, three and four of which he did. He focused his submission on the two remaining grounds of appeal. Starting with the first ground of appeal regarding the defence of insanity, the learned advocate submitted that the proceedings of the trial court were marred with procedural irregularities on the dealing with the defence of insanity. He pointed out that at pages 16 and 17 of the record of appeal, the learned counsel who appeared to represent the appellant intimated to the learned Judge the issue of defence of insanity in terms of section 219 (1), (2) and (3) of the Criminal Procedure Act, Cap. 20 R.E 2002 as amended (the CPA) and requested for medical examination of the appellant's mental state which request was not objected by the learned State Attorney. Mr. Ngole further submitted that the trial Judge having heard both parties granted the prayer but wrongly invoked the provisions of section 220 (1) of the CPA. It was his view that section 220 (1) of the CPA is restrictive in scope because it deals with the trial court's power to inquire into insanity of an accused person during the hearing of the trial. He contended that in this appeal, the issue was raised by the learned advocate for the appellant during preliminary hearing and not in the course of the trial. In that respect, Mr. Ngole argued, since the learned 6 Judge acted in terms of section 220 (1) of the CPA, he ought to have admitted the report which was prepared by the medical officer as part of evidence as required by section 220 (2) of the CPA and ought to have made a special finding in terms of section 220 (4) of the CPA. Mr. Ngole argued therefore, that since the report was not admitted and there was no special finding, the entire trial court proceedings were vitiated by such anomalies. Thus, he urged the Court to declare the entire proceedings of the trial court a nullity, quash the conviction and set aside the death sentence meted to the appellant. In support of his argument, he referred us to the decision of the Court in MT. 81071 PTE Yusuph Haji @ Hussein v. The Republic, Criminal Appeal No. 168 of 2015 (unreported). In the alternative, Mr. Ngole argued that the evidence available was insufficient to sustain a conviction to the appellant. He submitted that the trial Judge in convicting the appellant heavily relied on the extra-judicial and cautioned statements (Exhibits PI and P3, respectively) which were wrongly admitted. He added that even the evidence of PW4 which was heavily relied upon by the trial Judge was contradictory. 7 Expounding as to why Exhibits PI and P3 ought not to be acted upon, Mr. Ngole contended that there was non-compliance with section 246 (1) and (2) of the CPA which directs that the information, evidence of the intended witnesses and documentary exhibits which the Director of Public Prosecutions (DPP) intended to use during trial be read out and explained to the accused person during committal proceedings. He pointed out that at pages 12 and 13 of the record of appeal, the committal proceedings were conducted on 28th April, 2014 where the information, statement of witnesses and documents intended to be used by the DPP were read over and explained to the appellant but the extra-judicial and cautioned statements (Exhibits PI and P3 respectively) were not among the list of documents read over and explained to the appellant. More so, he added, the statement of the witness, Godfrey Ambele (PW2) was not read over and explained to the accused person nor was there a compliance with section 289 of the CPA that would have entitled the DPP to parade him as a prosecution witness. Since there was non- compliance with sections 246 and 289 of the CPA, the learned advocate urged the Court to expunge the evidence of PW2 together with Exhibits PI and P3. 8 If the evidence of PW2 and the documentary exhibits are expunged from the record, he contended, the remaining evidence would not be sufficient to ground the conviction of the appellant since the evidence of PW4 was full of contradictions. With that submission, Mr. Ngole urged the Court to allow the appeal by quashing the conviction, set aside the sentence and release the appellant from the prison custody. On his part, Mr. Maleko objected to the appeal. He strongly submitted that the procedure on the inquiry of the appellant's sanity was followed to the letter. Although the learned Senior State Attorney conceded that the record is not clear as to whether the report for medical examination was received as evidence and that there was no special finding on the appellant's mental capability but he submitted that the appellant was well aware of the report and its contents. He referred us to page 22 of the record of appeal, where the learned State Attorney was recorded to have informed the learned Judge that they were in receipt of the report, a prayer to proceed with the conduct of the preliminary hearing was made and the counsel for the appellant did not object to that prayer. He thus implored us to take that the appellant was 9 fully aware of the findings of the medical expert and that is why he agreed to proceed with the preliminary hearing. Mr. Maleko further submitted that the critical issue was the sanity of the appellant and it does not matter whether it was during the commission of the crime or after the commission of the crime. He said, as long as the appellant was found to be sane and the report from Isanga Institution which is in the court file shows that the appellant has sound mind and he was stable during his stay at Isanga Institution, the learned Judge correctly proceeded with the conduct of the preliminary hearing and it was upon the appellant to lead evidence on his sanity during the hearing of the case but there was none. For that reason, he submitted that the learned Judge could not make any finding in his judgment. Responding on the fifth ground of appeal, Mr. Maleko conceded that the witness statement of Godfrey Ambele who was paraded as PW2 was not read over during committal proceedings and there was no notice in writing on him to be called as a witness. He therefore concurred with Mr. Ngole that the evidence of PW2 be expunged from the record together with Exhibit PI. For Exhibit P3, he also conceded 10 that it was not read over during committal proceedings and it thus should be expunged from the record. However, he differed with Mr. Ngole on the remaining evidence. He contended that the evidence of PW4 which is to the effect that he witnessed the appellant killing the deceased suffices to sustain the conviction of murder against the appellant. When asked by the Court about the contradictory account given by the witness during examination-in-chief and cross-examination, he contended that the inconsistency is minor and it did not go to the root of the case. He added that the evidence of PW4 was corroborated by PW3 who recorded the cautioned statement of the appellant. Therefore, according to Mr. Maleko, these two pieces of evidence proved beyond reasonable doubt the offence of murder against the appellant. He therefore urged us not to disturb the conviction and sentence and proceed to dismiss the appeal. Mr. Ngole briefly re-joined that the credibility of PW4 was shaken by her contradiction in her contradictory account during examination in chief and cross examination and that the evidence of PW3 had nothing valuable to sustain the conviction of the appellant. He thus reiterated his earlier prayer that the appeal be allowed. On our part, having carefully heard and considered the rival arguments together with the record of appeal, we shall start with the first ground of appeal that the report for medical examination of the appellant's state of mind was not disclosed during trial nor was there a special finding on it. It should be understood that the law provides two separate procedures for a defence of insanity. If an accused person intends to raise a defence of insanity as a bar to a trial, in that, the accused person is incapable of standing trial, the procedure of raising it is provided under sections 216 to 218 of the CPA. Whereas, if an accused person wishes to raise it as a defence of insanity to a charge or information that at the time of committing the offence he was insane, the procedure is provided under sections 219 and 220 of the CPA. We are fortified in that account in the light of what we said in the case of MT. 81071 PTE Yusuph Haji @ Hussein v. The Republic (supra) that: - there is a marked distinction between unfitness to make a defence due to insanity and plea o f insanity as a defence to a charge or information. Sections 216 to 218 o f the Act,■lay down the procedure to be followed where an accused person is suspected to be incapable o f making his defence. In such situations, the issue is as to unfitness o f an accused person to plead and to take his triai and, thus, the unsoundness o f mind must refate to the time o f the triai and the inquiry must be in relation to an accused's mental condition at the time o f the triai as distinct from his mental condition at the time o f the commission o f the alleged offence (see Tar/no v. The Republic [1957] E.A. 553) Conversely, where it is desired to plead insanity as a defence, the issue, would be as to the state o f mind o f the accused at the time o f the commission o f the alleged act. Such a defence is governed by the provisions o f sections 219 and 220 o f the Act." Normally, where an accused person intends to raise the defence of insanity at the triai he must raise it at the time when he is called upon to plead. This is provided for under section 219 (1) of the CPA which states: - "Where any act or omission is charged against any person as an offence and it is intended at the triai o f that person to raise the defence o f insanity, that defence shall be raised at the time when the person is called upon to plead." In the instant appeal, during the preliminary hearing, the advocate for the appellant had some doubts on his client's mental state. He, 13 therefore prayed for the appellant to be taken to the mental hospital for examination. His prayer was as follows: - "After talking to the accused person, I have discovered the accused person has a mental problem and I have also got that information from other accused person who are with him in prison that the accused is o f unsound mind. In the circumstances, I pray the Court to order the accused to be taken to the mental hospital for examination under section 219 (1) and (2) o f the CPA, Cap. 20 R.E 2002 before we proceed with the matter." From the above extract, it is not clear as to whether the appellant's counsel intended to raise the issue of insanity as a defence to the information for murder or that the appellant was unfit to stand trial. He was not very much clear on his prayer. Be it as it may, the record shows that the learned State Attorney did not object to it. Consequently, the learned Judge adjourned the conduct of the preliminary hearing and ordered the appellant to be medically examined on his mental condition at the time of the killing as provided for under section 220 (1) of the Act which reads: - "Where any act or omission is charged against any person as an offence and it appears to the court 14 during the trial o f such person for that offence that such person may have been insane so as not to be responsible for his action at the time when the act was done or omission made, a court may, notwithstanding that no evidence has been adduced or given o f such insanity, adjourn the proceedings and order the accused person to be detained in a mental hospital for medical examination." We wish to pause here and comment on section 220 (1) of the CPA, Mr. Maleko argued that it applies only to cases where the Court acts on its own motion and during the hearing of the trial. We respectfully disagree with his submission. The defunct Court of Appeal for East Africa in the case of Mbeluke v. The Republic [1971] E.A 479, the case which originated from Tanzania, considered the import of the words "it appears to the court" as it appeared in section 168A of the then Criminal Procedure Code which was a replica of section 220 (1) of the CPA. In that appeal, the counsel for the appellant argued that the issue of insanity did not arise in the course of the trial and was not raised by the Judge but by the State Attorney. The Court said: - "Mr. King envisaged but we do not think the wording o f the section is so restrictive. We have no doubt that 15 the matter arose "during the trial" because the appellant had been arraigned and had pleaded to the charge. We think also that the words \it appears to the court' apply equally whether the question is drawn to the attention o f the court or is raised by the court o f its own motion. It is dear from the record that the judge was asked to act and believed he was acting under section 168 and the subsequent procedure was substantially in accordance with the section..." For the sake of completeness, we should add that the power of the trial court to make an order of an inquiry to the accused state of mind is provided under section 220 (1) of the CPA. Therefore, the learned Judge was correct in invoking section 220 (1) of the CPA. Now back to the matter at hand, the trial of the appellant resumed after the trial court had received the report from Isanga Institution where the appellant was sent for medical examination. The trial court proceedings depict that after the information was read over to the appellant who pleaded not guilty and his plea of not guilty was entered, the learned State Attorney reminded the learned Judge that: - "In the previous sessionf the court (Hon. Arufani, Judge) committed the accused person to Isanga Institution to determine his mental status. The report was prepared and we have it here. We therefore pray 16 to proceed with the preliminary hearing for the accused person." When given a chance to respond to the learned State Attorney's submission, Mr. Kessy, learned advocate who appeared to represent the appellant simply replied: - 'We are ready to proceed with preliminary hearing." As the result, the learned Judge proceeded with the preliminary hearing which later on paved the way for the conduct of the full trial. At the end of the trial, as we have indicated herein, the appellant was convicted as charged and sentenced to suffer death by hanging. Now, Mr. Ngole is complaining that the procedure was flawed because the learned Judge did not comply with section 220 (2) and (4) of the CPA since the contents of the appellant's medical report were not disclosed to the appellant nor did he make any special finding. TTne law as it stands provides that the court may admit a medical report as evidence unless it is proved that the medical officer purporting to sign it did not in fact sign it (See section 220 (2) of the CPA). Further, it has been repeatedly stated in various decisions of this Court that courts are not bound to accept a medical expert's evidence if there are good reasons for not doing so (See Nyinge Suwata v. The Republic [1959] E.A. 974; Hilda Abel v. The Republic [1993] T.L.R. 246; D.P.P. v. Omari Jabili [1998] T.L.R. 151 and Enock Yasin v. The Republic, Criminal Appeal No. 12 of 2012 (unreported)). Having gone through the record of appeal, we are in agreement with the learned Senior State Attorney's submission that the medical report was prepared and received by the trial court and this can be discerned from the address made by the parties at the time the case was resumed. More so, we have checked the original record and found that report on the record. It was prepared by Dr. Enock Changarawe, Psychiatrist at Isanga Institution on 26th May, 2016 and received by the trial court on 8th June, 2016. A copy of it was sent to the Regional Crimes Officer, Coast Region; State Attorney, Dar es Salaam and the Director of Public Prosecutions, Dar es Salaam but it was not copied to the appellant. In that report, the doctor opined that the appellant was not suffering any mental disorder and he was sane at the time he committed the crime. Admittedly, the record of appeal is silent as to whether the appellant was made aware of the contents of the report but we take that the counsel for the appellant was fully aware of it and that is why he agreed to proceed with the preliminary hearing. In any event, even if had the contents been disclosed to the appellant the resultant effect 18 would have been the same because the case would have proceeded to the hearing as it was done by the learned Judge. Therefore, the omission was not fatal because it would not have made any difference as to what the trial Judge did. Here, we wish to restate the five steps procedure to be followed after receipt of the medical examination report when accused person raised the defence of insanity that he was insane at the time of the commission of the crime. In the case of MT. 81071 PTE Yusuph Haji @ Hussein v. The Republic (supra) we stated five important steps to be followed thus: - "First, where it is desired to raise the defence o f insanity at the trial, such defence should best be raised when the accused is called upon to plead. Second\ upon being raised the trial court is enjoined to adjourn the proceedings and order the detention o f the accused in a mental hospital for medical examination. Third, after receipt o f the medical report the case proceeds the normal way with the prosecution leading evidence to establish the charge laid and then doses its case. Fourth, upon the closure o f the prosecution case, the defence leads evidence as against the charge laid, including medical evidence to establish insanity at the commission o f the alleged act. And, finally, fifth> the court then decides on the evidence, whether or not the defence o f insanity had been proved on a balance o f probabilities. I f such enquiry be determined in the affirmative, the court will then make a special finding in accordance with sections 219 (2) and 220 (4) o f the Act and proceed in accordance with the enumerated consequential orders." Regarding the complaint that there was no special finding, we have indicated herein that at the time when the appellant was called to plead, he raised a defence of insanity, the proceedings were halted and he was sent to Isanga Institution for medical examination, upon receipt of the report the trial of the appellant resumed and proceeded in the normal way. The prosecution led its evidence by calling four witnesses and tendered five exhibits. The trial court found the appellant had a case to answer. The appellant gave his own sworn defence evidence and did not call any other witness. Looking at the entire defence case there was no scintilla of evidence adduced by the appellant on his mental state nor did he tender any exhibit to that effect. If the appellant's counsel truly wanted the trial court to make a finding on the appellant's mental incapability, he ought to have adduced evidence to that effect. It is trite law that insanity 20 being a matter of defence, the onus to establish it lies on the accused person (see The Republic v. Madaha (supra), Agnes Doris Liundi v. The Republic [1980] T.L.R. 46 and Majuto Samson v. The Republic, Criminal Appeal No. 61 of 2002 (unreported)). Since, there was no material evidence on the insanity of the appellant which could have reasonably make the court to invoke section 220 (4) of the CPA, the learned Judge cannot be faulted. Consequently, we agree with the learned Senior State Attorney that the first ground of appeal lacks merit. That then takes us to the fifth ground of appeal which was argued in the alternative. We note that the learned Senior State Attorney conceded and rightly so that, exhibits PI and P3 were and ought not to be acted upon by the trial Judge for two main reasons. One, the evidence of PW2 was received in contravention of sections 246 (2) and 289 (1), (2) and (3) of the CPA which basically provide that in trials before the High Court no witness whose statement or substance of evidence was not read at the committal proceedings shall be called by the prosecution at the trial unless a reasonable notice in writing is issued to the defence side of its intention to do so. In Jumanne Mohamed and 3 Others v. The Republic, Criminal Appeal No. 534 of 2015 (unreported) we were faced with similar circumstances and we stated - "we are satisfied that PW9 was not among the prosecution witnesses whose statements were read to the appellants during the committal proceedings. Neither could we find a notice in writing by the prosecution to have him called as an additional witness. His evidence was thus taken in contravention o f section 289 (1) (2) and (3) o f the Act...,In case where evidence o f such person is taken as is the case herein, such evidence is liable to be expunged.... We accordingly expunge the evidence o f PW9 including exhibits P6 and P7 from the record." In this appeal, PW2 was not among the prosecution witnesses whose statements were read over to the appellant during committal proceedings nor was there a notice in writing to call him as an additional witness. We thus proceed to expunge the evidence of PW2 and exhibit PI from the record. Two, exhibits PI and P3 were not listed during committal proceedings nor were their contents read out to the appellant As such, there was non-compliance with section 246 (2) of the CPA. Likewise, 22 exhibit P3 is liable to be expunged from the record and we proceed to expunge it. We therefore find merit on the fifth ground of appeal. Having expunged the evidence of PW2 together with Exhibits PI - and P3, the follow up question is whether the remaining evidence suffices to sustain the conviction of the appellant. The learned Senior State Attorney urged us to find that the remaining evidence of the two prosecution witnesses, PW3 and PW4 proved the charge of murder against the appellant beyond reasonable doubt. Hence, we should uphold the conviction and sentence. On our careful appraisal of the evidence on record, we have found that the remaining evidence of PW1, PW3 and PW4 fell far short of proving the charge of murder against the appellant. The evidence of PW1 focused on the apprehension of the appellant that he was among Tondoroni villagers who captured the appellant in the nearby shrubs of Tondoroni Village. The evidence of PW3 basically deals with the investigation of the case. Her investigation started when she went to visit the scene of the crime on that fateful day and found the deceased's body lying outside the house with a pestle (Exhibit P2) beside it. Thereafter, she interrogated and recorded the statements of the witnesses, cautioned statement of the appellant and she also called the 23 doctor to perform a post mortem examination on the deceased's body with no more. It is therefore obvious that the evidence of PW1 and PW3 has no link between the body of the deceased found lying outside the house and the charge against the appellant. Regarding the evidence of PW4 who is the eye-witness to the alleged crime, her credibility is wanting. It is on record that while giving evidence in chief she asserted that she positively identified the appellant hitting the deceased on her head and she pleaded to him not to do so but during cross-examination she changed her story when she said that after hearing the alarm and coming out her house which is not more than 15 paces away, she saw the appellant running away. To us, PW4 contradicted herself on a key matter that goes to the merit of the case. Hence, we have no doubt that her credibility was tainted with her self- contradiction. Unfortunately, the self-contradiction was not addressed by the trial Judge in his judgment. It is the law that where prosecution witnesses give conflicting evidence, the trial court is duty bound to resolve the contradictions arising out of the conflicting evidence (See Mohamed Said Matula v. The Republic [1995] T.LR. 3). We believe that had the trial Judge considered the self-contradiction of PW4 he would not have reached to the conclusion that the appellant was guilty 24 as charged. On our part, we fully concur with Mr. Ngole that the self- contradiction affected the credibility of PW4, Stella Robert Mkongwa and therefore, should not have been acted upon to convict the appellant. In view of what we have endeavoured to discuss, we find merit in this appeal. We accordingly allow the appeal, quash the conviction and set aside the sentence, with an order directing immediate release of the appellant, Francis s/o Siza Rwambo from prison unless he is otherwise lawfully held. DATED at DAR ES SALAAM this 8th day of April, 2021. A. G. MWARIJA JUSTICE OF APPEAL G. A. M. NDIKA JUSTICE OF APPEAL B. M. A. SEHEL JUSTICE OF APPEAL The judgment delivered this 9th day of April, 2021 in the presence of Mr. Mashaka Ngole, learned counsel for the Appellant and Mr. Adolph Kisima, learned State Attorney for the Respondent is hereby certified as a true codv of the oriainal. 25