godfrey so william matiko another vs republic 2021 tzca 18 17 february 2021

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MUGASHA. 3. A.. WAMBALL 3.A And SEHEL, J. A.^ CRIMINAL APPEAL NO. 409 OF 2017 GODFREY s/o WILLIAM @ MATIKO......................................... 1st APPELLANT THOMAS s/o MWITA @ NYAGANCHA .................................2nd APPELLANT VERSUS THE REPUBLIC..........................................................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania sitting atTarime) (De-Mello, 3.^ Dated the 30th day of May, 2017 in Criminal Session Case No. 116 of 2014 JUDGMENT OF THE COURT 9th & 17th February, 2021. SEHEL, 3.A.: This appeal is against the conviction and death sentence meted to the appellants by the High Court of Tanzania sitting at Tarime (the trial court) in Criminal Session Case No. 116 of 2014. They were 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 23rd day of August 2012 at Nyinchoka Village, within Serengeti District in Mara Region the appellants did murder one, Simon s/o Nyansaho Mabogi. Upon a full trial, they were convicted as charged and sentenced to suffer death by hanging. For a reason which will shortly become apparent, we shall not present the background facts of the case giving rise to the present appeal. Suffice to state here that, the appellants having been aggrieved with the decision of the trial court, each lodged a notice of appeal followed by filing separate memorandum of appeal comprising of five (5) grounds. Further, on 21st January, 2012, after Mr. Cosmas Tuthuru, learned counsel was assigned the dock brief to represent the appellants lodged a joint memorandum of appeal comprised of four grounds, which reads:- 1. That, there were omission by a trial court to afford both the appellants an opportunity to express whether or not they objected to any o f the assessors selected to participate in the trial and hence there were no fair trial to the appellants. 2. That, there were omission by a trial court when it failed to explain to the assessors their duty before commencement o f prosecution case and hence they failed to give their opinion according to the legal requirement 3. That, the first trial court erred in law and fact to convict the appellants relying on the cautioned statement o f the 2nd 2 appellant (Exhibit PI) which were irregularly tendered and admitted in evidence contrary to the law. 4. That, the trial court erred in law and fact to convict the appellants relying on unfavourable identification conditions by the prosecution witness (PW3) one Chacha Nyamsoho Simeon Mabogi. When the appeal was called for hearing, Mr. Tuthuru, learned advocate appeared to represent both appellants, whereas Ms. Ghati William Mathayo, learned State Attorney, appeared for the respondent Republic. Mr. Tuthuru, at the very outset, informed the Court that he had consulted his clients and agreed with them that he should abandon the two sets of memoranda of appeal filed by the appellants of which he did and he will focus his submission on the joint memorandum of appeal which he had earlier on filed. He also abandoned grounds number three and four. Elaborating on the two remaining grounds of appeals which he conjointly submitted, that the proceedings of the trial court were marred with procedural irregularities on the appointment and the role of assessors. He contended that the appellants were not accorded a chance to comment on the appointment of either or all of the assessors nor were the assessors 3 explained their role in the trial as the result they failed to perform their duty in line with the stipulation under section 298 (1) of the Criminal Procedure Act, Cap. 20 R.E 2019 (the CPA). On the basis of the pointed anomalies, it was the strong view of the learned counsel for the appellants that under the circumstances, there was no fair trial on part of the appellants nor could it be said that the trial was conducted with the aid of assessors as required by the provisions of section 265 of the CPA. He argued further that, under the circumstances and in the interest of justice, the anomalies vitiated the entire proceedings. He therefore 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 appellants. In support of his argument, he referred us to the decisions of the Court in Augustino s/o Nundi v. The Republic, Criminal Appeal No. 388 of 2017 and Florian Ijenje and 2 Others v. The Republic, Criminal Appeal No. 461 of 2017 (both unreported). Although he acknowledged that ordinarily an order of retrial would be made but he beseeched us to acquit and release the appellants from the prison custody because he was of the view that the evidence available was insufficient to warrant a conviction to the appellants. 4 On her part in response, Ms. Mathayo supported the appeal by joining hands with the submission made by her learned friend. She added that even if the appellants were given a chance to comment on the selection of assessors, they could not do so because, according to page 4 of the record of appeal, the names of the selected assessors were not shown in the record of 24th May, 2017. She contended that even the trial judge did not direct the assessors on their role and duty in the trial before the commencement of the trial. For these anomalies, Ms. Mathayo urged the Court to nullify the proceedings, quash the conviction, set aside the sentence and order a retrial of the case as it was done in the case of Michael Kazanda @ Kaponda and 2 Others v. The Republic, Criminal Appeal No. 374 of 2017 (unreported). To the learned State Attorney's submission, Mr. Tuthuru did not have any rejoinder. On our part, having heard the submissions of the learned counsel for both sides, we wish to start our discussion with the provisions of the law dealing with the conduct of the criminal trials before the High Court with the aid of assessors. The key legislation guiding the conduct of the criminal trials in Tanzania Mainland is the CPA whereby Part VIII provides for the 5 procedure in trials before the High Court and more specifically section 265 of the CPA which stipulates the practice and mode of trials as follows:- "All trials before the High Court shall be with the aid o f assessors the number o f whom shall be two or more as the court thinks fit. " Further, section 283 of the CPA provides for the procedure of choosing the assessors that:- "Where the accused person pleads "hot guilty" or if the piea o f "not guilty" is entered in accordance with the provisions o f section 281, the court sh a ll proceed to choose assessors; as provided in section 285, and try the case." [Emphasis is added]. It is instructive to emphasis here that the duty of selecting assessors is upon the trial court. This is clearly stipulated under section 285 of the CPA that reads:- "(1) Where the trial is to be conducted with the aid o f assessors, the assessors shall be selected by the court. (2) An assessor may aid in more than one trial\ successively." It is only after the assessors have been chosen, the trial of the case shall commence by inviting the advocate for the prosecution to open the 6 case against the accused person, call witnesses and adduce evidence in support of the charge (See section 288 of the CPA). In other words, the trial shall commence in the presence of the assessors and they shall be present throughout a trial, with an exception when there is a trial within a trial. That is why section 287 of the CPA requires that:- "where the trial is adjourned, the assessors shall be required to attend at the adjourned sitting and at any subsequent sitting until the conclusion o f the trial." In that regard, the erstwhile Court of the Appeal of East Africa in the case of The Republic v. Assa Singh (1937) 4 EACA 41 echoed for the attendance of assessors from the beginning of the trial till the end and when adjourned they must also attend on the resumed date of hearing failure of which vitiates the proceedings. In that case it was held:- "Where an assessor is absent during one day's hearing o f the trial and is allowed to resume and give an opinion on the case, the trial is a nullity. "[Emphasis is added]. Having expounded the position of the law, let us now look at what transpired in appellants' trial before the High Court. The trial of the 7 appellants commenced on 24/5/2017 and the extract of the proceedings on that date is as follows:- "Date: 24/5/2017 Coram: Hon. J. A. De-Mello, J. Mbogoro State Attorney for the Republic. Msafiri Adv. Counsel for the 1st Accused Godfrey Adv. Counsel for the 2ndAccused Accused names: 1. Godfrey s/o William @ Matiko 2. Thomas s/o Mwita @ Nyamhanga Are present under custody and represented by Msafiri for the 1st Accused and Godfrey Advocate for 2ndAccused. Interpreter: Renatus D. Kerenge, English into Kiswahili and vice versa. Notice o f Trial on Information for Murder c/s 196 and 197 of the Penal Code, Cap. 16, was duly served on the accused and, now before the court on the 24/5/2017. Information is read over and, explained to the accused person in his/her own language and he/she is required to plead thereto: 1st Accused Plea: "NOT TRUE" 2ndAccused Plea: "NOT TRUE" Entered as a PLEA of, "NOTGUILTY" 1stAccused: "NOTGUILTY" 2TdAccused: "NOTGUILTY" 8 Mbogoro S/A: The matter is schedule for Trial today and, I fend for the Republic. The accused two of them, are present The three (3) wise Assessors are present too, Madam Judge. I pray for their positioning. Court: It is so and, granted. Mbogoro S/A: I have two witnesses with me here today. I pray for their presence. Court: Let PW1 take his position." From the above, it is obvious that the trial of the appellants commenced without adhering to the statutory procedure of selecting assessors. It is gathered that the assessors were proposed by the learned State Attorney who beseeched the trial court to allow the assessors to take their position and accordingly it was granted as prayed. It is noteworthy to stress here that, the trial judge must ensure that he/she take the charge of selecting the assessors. On this, we wish to draw an inspiration from the Court of Appeal in Kenya in the case of Mungai v Republic [1984] 1 EA 318 where almost a similar scenario happened and that Court stated:- "... the court shall select the assessors and a court should take care not to appear to confirm rather than to select assessors." We are persuaded and entirely agree with that remark and we wish to add that since it is a statutory requirement that assessors are part and 9 parcel of the criminal trial before the High Court, the trial court should ensure compliance with the provision of the law on the selection of assessors. For that matter, it was expected for the trial judge to indicate in the proceedings the names and age of the chosen assessors for the appellants to make a meaningful objection, if any. The selection of assessors must be patent on the record to give comfort and assurance to the accused person that the selection was done fairly, impartially and with open minds. As alluded herein, there was no indication in the proceedings of the trial court that the trialcourt formally selected the assessors. It was the prosecution that asked the trial court for the assessors to take their position inthe trial. This amounted to no more than failure ofjustice because in the eyes of law, the prosecution made itself part and parcel of the process of selecting the assessors which goes against the cherished principle of, as it was then in the medieval times, trials by peers. In that regard, this Court in James @ Shadrack Mkungilwa and Another v. The Republic, Criminal Appeal No. 214 of 2010 (unreported) stated that:- "Trial with assessors or by jury (as in other jurisdictions)who were presumed to be best placed to evaluate the facts has its origins from the medieval times in England in the cherished idea o f trial by peers, and has since been regarded as part o f the process o f fair trial in all serious offences in our jurisdiction. It is also hailed as promoting transparency in the administration o f criminal justice." Further in Mashaka Juma Ntalula v. Republic, Criminal Appeal No. 159 of 2015 (unreported) this Court said:- "It is fundamental that, justice should not only be done but seemed to be done. This is regardless o f the outcome o f the trial, considering that the fair administration o f justice is the exclusive domain o f court which includes assessor who throughout the conduct o f trial must be impartial and not biased." We fully associate ourselves with the views expressed by the Court in the above cases. Unfortunately, despite the failure of the trial judge to select assessors formally, she did not also give the appellants opportunity to comment whether they had any objection to the assessors before they participated in the trial. The importance of the trial court to comply with the procedure of informing the accused person his right to comment on the chosen assessors was extensively discussed in in the case of Laurent Salu and 5 Others v. The Republic, Criminal Appeal No. 176 of 1993 (unreported) when the Court faced similar situation and it stated as follows:- 'Admittedly,■ , the requirement to give the accused the opportunity to say whether or not he objects to any o f the assessors is not a rule o f law. It is a rule o f practice which, however, is now well established and accepted as part o f the procedure in the proper administration o f criminal justice in the Country. The rationale o f the rule is fairly apparent The rule is designed to ensure that the accused has a fair hearing." The position was restated in the case of Hilda Innocent v. The Republic, Criminal Appeal No. 181 of 2017 (unreported) when the Court said:- "It is instructive to note that involvement o f assessors as per section 285 (1) o f the CPA begins with their selection. The trial judge therefore must indicate in the record that the assessors were selected, followed by asking the accused person if he objects to the participation o f any o f the assessors before the commencement o f a trial. This must usually be followed by the usual practice that the trial judge must inform and explain to the assessors their role and responsibility during the trial up to the end where they are required to give their opinions after summing up o f the trialjudge." The Court then went further to stress that:- "...it is equally important although informing the assessors on their role and responsibility is a rule o f practice and not a rule o f law, as it is for a long time an established and accepted practice in order to ensure their meaningful participation, a trial judge must perform this task immediately after ascertaining that there is no any objection against any o f the assessors by the accused before commencing the trial. It is also a sound practice that a trialjudge has to show in the record that this task has been fully performed. For even logic dictates that whenever a person is called upon to 13 assist in performing any task or to offer any servicef he must be fuiiy informed o f what is expected o f him in performing that task. Thus, failure to inform assessors on their role and responsibility in the trial diminishes their level o f participation and renders their participation which is a requirement o f the law meaningless." We entirely subscribe to the above position. Given the fact that the proceeding subject of the present appeal is silent as to whether the appellants were given an opportunity to express their view on the selected assessors nor was there any direction given to assessors on their role and responsibility, we are settled in our mind that such omission amounted to an irregularity that vitiates the whole proceedings of the trial court. Consequently, we find merit on the first and second grounds of appeal. In the end, we hereby nullify the proceedings of the trial court, quash the conviction and set aside the sentence meted out against the appellants. Having nullified the proceedings,.we refrain from analyzing the evidence. Thus, we make an order of an expedited retrial of the appellants as we consider that to be in the interest of justice in the circumstances. For avoidance of doubt, we order that the appellants should remain in custody to wait for a retrial before another judge with a new set of assessors. DATED at MWANZA this 16th day of February, 2021. S. E. A. MUGASHA JUSTICE OF APPEAL F. L. K. WAMBALI JUSTICE OF APPEAL B. M. A. SEHEL JUSTICE OF APPEAL This Judgment delivered this 17th day of February, 2021 in the presence of Mr. Constantine Mutalemwa, learned advocate holding brief for Mr. Cosmas Tuthuru, learned advocate for the Appellants and Ms. Georgina Kinabo, State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. 15