ngangi gwaruda gidabayokta vs republic 2021 tzca 155 30 april 2021

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MWARIJA, J.A., KITUSI, 3.A.. And KEREFU, J.A.) CRIMINAL APPEAL NO. 245 OF 2017 NG'ANGI GWARUDA GIDABAYOKTA...........................................APPELLANT VERSUS THE REPUBLIC............................................... .......................RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Babati) (Maqhimbi, 3.^ dated the 23rd day of May, 2017 in Criminal Session No. 40 of 2016 JUDGMENT OF THE COURT 24th February, & 30th April, 2021 MWARIJA. J.A.: The appellant, Ng'angi Gwaruda Gidabayokta was charged with and convicted of the offence of murder contrary to section 196 of the Penal Code [Cap. 16 R.E. 2002]. The High Court (Magimbi, J.) sitting at Babati found the appellant guilty of the murder of Gisayoda Gidabalan (the deceased). Following his conviction, the appellant was sentenced to suffer death by hanging. He was dissatisfied with the decision of the High Court hence this appeal. The background facts of the case may be set out briefly as follows: On 5/2/2015 at about 21.00 hrs, the deceased and his younger brother, Daudi Gidabalan (PW5) were having dinner outside their family house, within the compound. After they had finished eating, they remained within the compound engaging in conversation with their mother, Gwajenshi Bwasqet (PW6). While they were still outside their house, a person called on at the gate asking to be allowed in. PW6 welcomed the would be guest. PW5 and PW6 noticed that their visitor had carried a bow and an arrow. As it turned out later his visit ended up in causing grief to PW6's family. In their evidence, PW5 and PW6 narrated the incident which occurred after that person, whom they identified to be the appellant. According to their evidence, the appellant is PW5's uncle and the brother in-law of PW6. They each said that they managed to recognize the appellant by aid of moonlight as there was a full moon in the material night. According to PW5, after the person he recognized to be the appellant had entered into the compound, he asked whether PWS's father was at home. When PW6 answered that her husband had not returned home, that person turned to the deceased and PW5 and asked them as to why they did cause disturbance at the time when they were passing in front of his house. PW5 went on to testify that, without waiting to hear from them, the 2 culprit moved closer to the deceased, shot him on the neck with an arrow and ran away. As a result, PW5 went on to state, that the deceased fell down and his efforts to remove the arrow from the deceased's body proved futile. PW6 supported the evidence of PW5. She added that after PWS's efforts to remove the arrow from the deceased's body had failed, she directed him to get out of the compound and raise alarm. After PW5 had gone out, she struggled and managed to remove the arrow but noticed that the deceased had died because his heart had stopped beating. Following the alarm raised by PW5, people gathered at the scene of crime. They included the Hamlet Chairman, Augustino Languu (PW7) who, after having been apprised of the incident, ordered the village youths to mount a search and arrest the appellant. The appellant was arrested at the scene where according to him, he had turned up in response to the alarm. Since information was thereafter relayed to the police, police officers including A/Insp Modestus Ngonyani (PW1) and No. E.9579 D/Sgt Sijaona (PW2) arrived at the scene of crime in the company of Dr. Cherokiwa Rajabu Msangi (PW3). After having interrogated some of the people, including PW5 and PW6, PW1 went to take the appellant from the Village office where he had been locked up and transported him to police Station. On his part, PW2 testified that he proceeded to draw a sketch map of the scene of crime. The same was admitted in evidence as exhibit PI. As for PW3, he said that he examined the body and later prepared a postmortem report which was admitted in evidence as exhibit P2. At the police station, the appellant was interrogated by No. D. 2324 D/Sgt Hassan Bakari (PW4). According to his evidence, the appellant admitted that he committed the offence. The statement which was tendered in court was admitted as exhibit P3. In his defence, the appellant testified to the effect that, he learnt about the death of the deceased when he went to the scene of crime in response to the alarm raised in the material night. He said that, on that material date at about 12.00 noon, he went to a local brew shop (pombe shop) to have a drink. He met there his brother, the decease's father who was with his friend. After having taken his drink, he went away leaving his brother at the pombe shop as he had boozed it out. DW1 went on to state that, from the pombe shop, he went to his farm and later to see his cattle at the grazing area. Finally, he said, he went home where he arrived at about 19.00hrs. At about 20.00 hrs he heard the alarm and thus went to the scene of crime 4 where, to his surprise, he was arrested on allegation that he was the culprit. He refuted the prosecution evidence to the effect that he confessed to the offence and that he signed exhibit P3. It was his evidence that when he was interrogated at the police station, he denied the allegation that he was responsible with the deceased's death. He said that he was as a result, beaten and forced to sign some papers which, according to the prosecution, contains his cautioned statement. Having considered the prosecution and the defence evidence, the learned trial Judge was satisfied that the case against the appellant had been proved beyond reasonable doubt. She found, first, that even though the offence was committed at night, the appellant was properly recognized by PW5 and PW6 who visually identified him by aid of moonlight and voice identification, more so because he was not a stranger to them. Secondly, the learned trial Judge acted on the cautioned statement (exhibit P3) which was relied upon by the prosecution to prove that the appellant admitted that he committed the offence. With regard to the appellants defence, the learned trial Judge was of the view that the same did not raise any reasonable doubt in the prosecution case. She reasoned that, from his own evidence, the appellant was within the village at the time of the incident. As stated above, the appellant was aggrieved by the decision of the High Court and therefore, preferred this appeal. In his memorandum of appeal lodged on 27/10/2017, he raised seven grounds and later on 16/2/2021, his counsel lodged a supplementary memorandum of appeal consisting of two grounds. At the hearing of the appeal, the appellant appeared through video conferencing facility linked to Arusha Central Prison. He was represented in Court by Mr. Edmund Rweyemamu Ngemela, learned counsel. On its part, the respondent Republic was represented by Mr. Mutalemwa Kishenyi, learned Senior State Attorney. Before we could proceed to hear the appeal on merit, we probed the learned counsel for the parties to address us on whether or not the summing up to the assessors was adequately made. We took that move because, from the summing up notes, the learned trial Judge started by addressing the assessors on the ingredients of the offence of murder and thereafter, proceeded to summarize the evidence. She then concluded by seeking the opinions of the assessors who sat with her on whether the appellant was guilty or otherwise. There is nothing in the summing up notes showing that the assessors were directed on vital points of law involved in the case. In their submissions, both Messrs Kishenyi and Ngemela agreed that the summing up to the assessors was inadequate because the learned trial Judge omitted to address them on vital points of law involved in the case. Mr. Kishenyi argued that the omission vitiated the proceedings. He therefore, urged us to nullify the proceedings, quash the judgment and set aside the appellants conviction. On the way forward, he implored us to order a retrial on account that the evidence relied upon by the prosecution is sufficient to prove the charge. On his part, Mr. Ngemela agreed with Mr. Kishenyi that the trial court's failure to direct the assessors on vital points of law vitiated the trial. He similarly urged us to nullify the proceedings. On the way forward, he urged us to decline Mr. Kishenyi's prayer for an order of retrial. According to Mr. Ngemela the evidence on record is insufficient and would not therefore, prove the case should that order be made. On our part, we agree with the learned counsel for the parties that the omission to direct the assessors on vital points of law vitiated the trial. 7 As pointed out above, the appellant's conviction was based on the evidence of visual identification made under unfavourable conditions and the evidence of voice identification. The assessors were not, however, directed on the nature and conditions under which such type of evidence may be acted upon to convict an accused person. Likewise, although the High Court acted on the confession evidence which was retracted by the appellant, the assessors were not addressed on the evidential value of that evidence and the conditions under which the same may be used to found an accused person's conviction. The learned trial Judge was enjoined to address the assessor on those vital points of law before she sought their opinions. That requirement has been underscored by the Court in a number of its decisions. For instance, in the case of Masolwa Samwel v. Republic, Criminal Appeal No. 206 of 2014 (unreported), we stated as follows: "There is a long and unbroken chain o f decisions o f this Court which aii underscore the duty imposed on trial High Court Judges who sit with the aid o f assessors to sum up adequately to those assessors on all vital points o f law..." s - See also the cases of Philimon Jumanne Agala @ 34 v. Republic, Criminal Appeal No. 157 of 2015, Richard Siame Mateo v. DPP, Criminal Appeal No. 173 of 2017, Lubinza Mahula and 2 Others v. Republic, Criminal Appeal No. 226 of 2016, Rashid Othman Ramadhani and 3 Others v. Republic, Criminal Appeal No. 305 of 2017 and Michael Maige v. Republic, Criminal Appeal No. 153 of 2017 (all unreported), to mention but a few. In the latter case, the Court expressed the rationale behind that requirement. It stated as follows:- "... the Issue o f summing up to assessors is a requirement of law that for the trialjudge who sits with the aid o f assessors has to sum up to them before inviting their opinion as the main purpose is to enable them to arrive at a correct opinion and the same can be o f great value to the trial judge only if they understand the facts o f the case in relation to relevant law (See Washington s/o Odingo v. R. [1954] 21 EACA 392; Augustino Lodami v. R, Criminal Appeal No. 70 o f 2010; Charles Lyatii @ Sadata v. R., Criminal Appeal No. 290 o f 2011 and Selina Yambi and 2 Others v. R., Criminal Appeal No. 94 o f 2013 (all unreported)." 9 On the basis of the above stated position, there is no gainsaying that as a result of the omission, the trial was vitiated. We are, for this reason, constrained to invoke our revisional powers under s. 4 (2) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2019] and hereby nullify the proceedings, quash the judgment and set aside the appellant's conviction. Next for our consideration is whether we should order a retrial. As a matter of principle, a retrial will not be ordered if the evidence in the original trial is insufficient or where an order to that effect will enable the prosecution to fill up the gaps in its evidence. - See the case of Fatehali Manji v. R. [1966] 1 EA 343. In that case, the defunct Court of Appeal for East Africa stated as follows "In genera/ a retrial will be ordered when the original trial was illegal or defective, it will not be ordered where the conviction is set aside because of insufficiency o f evidence or for the purpose o f enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its own facts and circumstances and an order for retrial should only be made where the interest o fjustice require it..." 10 Having considered the particular circumstances of this case, were are of the considered view that the interest of justice constrains us to order a retrial. This is because the case involves a serious offence and from the record, we do not think that a retrial will enable the prosecution to fill any gaps in its evidence. In the event, we order that the case be tried de novo before another Judge and a new set of assessors. The appellant to remain in custody pending his retrial. DATED at DAR ES SALAAM this 14th day of April, 2021. A. G. MWARIJA JUSTICE OF APPEAL I.P. KITUSI JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL The judgment delivered this 30th day of April, 2021 in the presence of Appellant in person linked via video conference from Arusha Central Prison and Mr. Ahmed Hatibu, learned State Attorney for the Respondent/Republic linked via video conference from High Court Arusha is hereby certified as a true copy of the original. li