CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: LILA, J.A.. KIHWELO, J.A.. And ISSA. J.A.) CRIMINAL APPEAL NO. 191 OF 2022 MUSSA EMMANUEL DAUD.....................................................APPELLANT VERSUS THE REPUBLIC............................... ................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) fMnvukwa. J.l dated the 25th day of February, 2022 in Criminal Appeal No. 134 of 2021 JUDGMENT OF THE COURT 19th & 25th February, 2025 LILA. J.A.: This is a second appeal. Mussa Emanuel Daudi, the appellant (then 1st accused), together with Leonard Hanira @ Rwabutundwe, Emanuel Juma @ Lukanga, Elisha Muhoza @ Sumuni and Samweli Matiko, then 2nd to 5th accused persons, respectively, were arraigned before the Resident Magistrates' Court of Geita to answer a charge of cattle theft contrary to section 268 of the Penal Code. The allegation was that they did steal eighteen (18) heads of cattle valued at TZS 18,000,000.00 (Say Eighteen Million Shillings) the property of Robert Paul. The 4th accused escaped from remand prison and the case proceeded in his absence. After a full trial, the appellant, the 3rd and 4th accused persons were found guilty and convicted. Each was sentenced to serve fifteen (15) years imprisonment. The record is silent about the whereabouts of the 4th accused, but it shows that the appellant and Emanuel Juma @ Lukanga, (then 3rd accused) lodged separate appeals to the High Court of Tanzania, Mwanza Registry. The appellant's appeal in Criminal Appeal No.134 of 2021 was unsuccessful while that of the 3rd accused in Criminal Appeal No. 113 of 2022 succeeded, his conviction was quashed, the sentence was set aside and was set free. This appeal is therefore by the appellant alone who seeks to challenge the High Court decision. At the trial, the prosecution paraded six (6) witnesses. Robert Paul (PW1) and Bandiho Shija (PW2) who owned, respectively, 10 and 7 cows which were kept at PWl's cow shade (craal). PWl's cows had "Mk" and "25" as special marks while those of PW2, some had "25" and some had no marks. They were stolen in the night of 5/6/2020. A search mounted thereafter bore no fruits. PW1 reported the matter to Mgusu Police station who promised to continue searching for the cows. After a month, that is on 5/7/2020, both PW1 and PW2 were called at the police station to identify the eight recovered cows that were at Geita police station and were told that they were found with the accused persons when taking them to "Machinjioni". A policeman, F. 4037 D/CpI Laurian (PW3), recorded the appellant's cautioned statement which he however retracted and a trial-within-trial was conducted which ended in it being admitted as exhibit PI. PW3 also recorded the 4th accused's cautioned statement which was admitted as exhibit P2. Another policeman one D. 6439 Sgt Isack, had it that he was informed that a person has been apprehended with two cows at Lulebeia where he went and arrested one Martine who on being inquired, he admitted stealing cattle in the company of the appellant, Emanuel Juma (then 3rd accused) and one Daudi. That, the 3rd accused said he was given the cows by one Elisha (4th accused) which he took to one Masanyiwa Msomi and that Masanyiwa admitted being given four cows by 3rd accused being his inheritance. At Masanyiwa's kraal, four cattle were found and certificate of seizure (exhibit P3) was prepared and signed in the presence of locality leaders. PW1 and PW2 identified three heads of cow as one cattle died. The three cows and a skin of the dead cow were admitted as exhibit P5, collectively. PW2 confirmed identifying the three cows. Another policeman F. 3040 D/C Joseph recorded the cautioned statement of the 3rd accused, which after an inquiry following its being retracted, it was admitted as exhibit P4. Masanyiwa Make Msomi (PW6) arrested the 3rd accused at Mbugani area in Kalangalala Ward on being suspicious as to how he could be selling four cows at TZS 1,200,000.00 but kept reducing it up to TZS 600,000.00. He said the 3rd accused was heading towards Katoro direction with the four heads of cow and had no cattle permit. He reported the matter to the police who took him and the police asked him to keep the four cows. Later on, two people went to his place to identify the cows. Save for the 4th accused who disappeared before PW3 testified and the hearing of the case proceeded in his absence under section 226 of the Criminal Procedure Act, (the CPA), all the remaining four accused persons disassociated themselves with the commission of the offence each raising a defence of alibL In his relatively short judgment, the presiding resident magistrate was satisfied that on the oral testimony of the witnesses and the cautioned statements tendered (exhibits), the case was proved as against the 1st, 3rd and 4th accused. He convicted them and sentenced, each of them, to serve fifteen (15) years jail term. The High Court concurred with the trial court's decision and dismissed the appeal. As stated earlier, only the appellant sought to challenge the High Court decision, initially, upon a memorandum of appeal comprised of four (4) grounds which was subsequently followed by a three-point supplementary memorandum of appeal. However, at the hearing of the appeal, Mr. Fidelis Casian Mtewele, learned advocate, representing the appellant, sought and was granted leave to abandon all the grounds in the supplementary memorandum of appeal and all, but one ground of appeal in the substantive memorandum of appeal. The sole ground of appeal retained and argued is couched thus: - "1. The first appellate court erred in law for confirming the conviction o f the appellant as the appellant was not fairly tried by the trial court on account that the accused persons did not cross-examine each other in the course o f hearing o f their respective defence case." Before us, Mr. Mtewele, as hinted above, represented the appellant who was also present in Court whereas the respondent Republic was represented by Ms. Verediana Peter Mlenza and Ms. Luciana Shabani, both learned Senior State Attorneys. On the sole ground of appeal, both Mr. Mtewele and Ms. Mlenza were of a firm concurrent view that the record shows that the appellant and his then co-accused persons were not accorded an opportunity to cross-examine each other after each had testified in defence. Reference was made to pages 48 for the appellant, page 49 for the 2nd accused, pages 50 to 51 for the 3rd accused and 51 to 52 for the 4th accused. While referring to section 147 of the Evidence Act, Chapter 6 of the Revised Laws which govern the modality of testifying in court, Mr. Mtewele went on to argue that the right to cross-examine a witness is a fundamental right and its violation is fatal and it vitiates the whole proceedings as it has the effect of rendering the trial unfair. He referred us to the case of Charles Kidaha and Others vs Republic, (Criminal Appeal No.395 of 2018) [2021] TZCA 526 (27 September 2021) to support the proposition that failure to accord witnesses the right to cross-examine is a serious ailment because it is a violation of the accused's constitutional right. Based on this anomaly alone, Mr. Mteweie implored the Court to nullify the proceedings, quash the conviction and set aside the sentence imposed on his client. Ms. Mlenza readily conceded to the anomaly and the obtaining consequences. The learned counsel parted ways on the way forward. For reasons that it will be difficult to secure attendance of the witnesses who testified during the former trial as their whereabouts are unknown as well the uncertainty on the availability of the recovered cows which were admitted in court as exhibit, Mr. Mteweie forcefully argued that this is not a fit case to order re-trial. Ms. Mlenza was of a different view and countered Mr. Mtewele's arguments arguing that the duty to procure and produce witnesses and exhibits in court is on the prosecution who should not be condemned that they are unable to do so. Considering the portion of the sentence the appellant has served being short, just three (3) years out of fifteen years imposed, Ms. Mlenza pressed for an order of re-trial being made. We, indeed, entirely agree with both learned counsel views that the right to a fair trial is one of the basic rights enshrined in the Constitution of the United Republic of Tanzania of 1977 as amended under Article 13(6)(a) which imposes an inviolable duty on all adjudicative organs to ensure persons seeking their rights are accorded opportunity to be heard properly. Available case law supports the position taken by the learned counsel that accused persons are not an exception and like any other witnesses, have a right to cross-examine each other. In giving it a deserving weight and in an identical scenario, the Court, in the case of Albanus Alloyce and Another vs Republic, Criminal Appeal No. 283 of 2015 (unreported), lucidly pronounced itself thus: - "Before we are done with this matter, we wish to comment on another anomaiy we noted. The proceedings show that after each accused had testified his co-accused were not given an opportunity to put questions to him. An accused person who testifies becomes a witness and if there are other persons who are charged along with him, they have a right, we believe, to put questions to him/her This is essentiai because there may be times when an accused may give incriminatory evidence against his/her co-accused(s) in which case a denial o f the right o f cross-examination by the concerned accused couid resuit in a miscarriage of justice. Judicial officers are enjoined to take heed o f this." (Emphasis added) In the same vein, the Court in Mataka and Others v R [1971] E.A 495 pp. 502 - 503, cited in Gift Mariki and Two Others vs Republic, Criminal Appeal No. 289 of 2015 (unreported), on the right of accused persons to cross-examine each other, had this to say: - "It is weii established that where an accused person gives evidence, that evidence may be taken into consideration against a co-accused just like any other evidence. Evidence which is inconsistent with that o f the co-accused may be just as injurious to his case as evidence which expressly seeks to implicate him, should we think give rise to a right o f cross-examination..." (See also Gift Mariki and Two Others vs Republic, (supra) and Charles Kidaha and Others vs Republic (both unreported). We are confronted with a somewhat identical situation. The appellant was charged jointly with other accused persons who, in their respective cautioned statements which grounded their convictions incriminated each other. We have read the pages mentioned by Mr. Mtewele and we are satisfied that the accused persons did not cross- examine each other. We therefore find merit in the complaint by Mr. Mteweie and as we did in the cited cases above, hereby proceed to declare the proceedings of the trial court a nullity. Having given due consideration to the rival arguments, the next question is whether or not we should order a re-trial. Mr. Mteweie implored us to release the appellant which view was not accepted by Ms. Mlenza. Admittedly, this issue has taxed our minds so much. As was argued by Mr. Mteweie, then 4th accused person escaped and was convicted and sentenced in absentia. He did not therefore appeal. Emanuel Juma @ Lukanga, then 3rd accused appealed to the High Court in Criminal Appeal No. 113 of 2022 and was successful following his conviction being quashed and his sentence being set aside. He thus walked free from prison. No appeal lied to this Court by the Republic Respondent to challenge his being set free. He is a free person as from 17/11/2023. An order of re-trial will obviously entaii all the then accused persons, including the 3rd accused who was set free by the High Court, being required to again, appear before the Resident Magistrates' Court of Geita at Geita to, again, face a fresh trial. Being a free person, he was not heard in this appeal as he was not privy to this appeal. The High Court decision allowing his appeal has not been challenged and overturned by an appellate Court, the Court. The propriety of a re-trial order against him poses an issue calling for an answer. g As we were pondering on the just course to take under the prevailing circumstances, our hand landed on the Court's decision in the case of Lufino Gabriel @ Mwakayela vs Republic, Criminal Appeal No. 652 of 2022 (unreported) in which an order of retrial was made by the Court against all the accused persons notwithstanding that one Germanus Idd Ngaliluwula with whom the appellant was charged was acquitted by the trial court on the basis that no injustice will be occasioned to him because he will be heard during re-trial. In our further research, our eyes fell on the Court's decision in the case of Issa Athumani Jojo vs Republic, (Criminal Appeal No. 54 of 1996) [2001] TZCA 22 (28 June 2001) in which the Court discussed at length whether the common law principle of "Issue estoppel' applies in criminal cases in this country. In that case, the appellant and other seven persons including Yahaya Abdallah were charged before the District Court of Morogoro of the offence of unlawful possession of fire arm and all were acquitted but for both appellant and Yahaya Abdallah who were convicted of the offence of receiving stolen property. Only the appellant appealed. The learned Judge, on appeal, allowed the appeal, quashed the conviction and set aside the sentence. Exercising revisional powers, he quashed the conviction and set aside the sentence imposed on Yahaya Abdallah who did not appeal. The order by the learned Judge aggrieved the police who preferred another charge of unlawful 10 possession of the firearm and three rounds of ammunition, again before the District Court the basis of which was still possession of the fire arm which was the basis of earlier charge. The appellant's plea of autrefois acquit under section 280 of the CPA was rejected by both the district court and the High Court hence were convicted and sentenced. In dealing with the appellant's appeal, the Court found that the appeal raised an issue whether the doctrine or principie of issue estoppel is applicable in criminal cases in Tanzania which they accepted and allowed the appeal on the basis of the principle of issue estoppel although they rejected the view that autrefois acquit applied in the circumstances. Relevance of the case herein is on whether a person charged and acquitted of an offence may, again, be required to face a charge of the same nature between same parties or a charge raising the same issue. The 3rd accused, it appears, will be subjected to a similar scenario if a re-trial order is made. Briefly, in its discussion the Court referred to its meaning as defined in the words of Lawson, J. in the case of Regina v Hogan [1974] 1 QB 398 at page 401, that principle means: - "...Issue estoppel can be said to exist when there is a judicial establishment o f a proposition o f law or fact between parties to earlier litigation and when the same question arises in later litigation between the same parties. In the later litigation the established proposition is li treated as conclusive between those same parties. It can also be described as a situation when, between the same parties to current litigation, there has been an issue or issues distinctly raised and found in earlier litigation between the same parties." In an attempt to draw a distinction between the autrefois principle, embodied in sections 137 and 280(l)(a) of the Criminal Procedure Act, Chapter 20 of our Laws, the Court accepted as proper the distinction explained by Lord Devlin in Connelly v Director of Public Prosecutions [1964] 2 All E.R 401, at p. 436 who said: - "... The difference between issue estoppel and the autrefois principle is that while the later prevents the prosecution from impugning the validity o f the verdict as a whole, the former prevents it from raising again any of the separate issues of fact which the jury have decided, or are presumed to have decided, in reaching their verdict in the accused's favour." Persuaded by the above explanations, the Court, concluded that: - "...assuming that before the reception date the common law did not recognize the application o f the doctrine in criminal law, we are prepared to invoke the proviso to section 2(2) o f the Judicature and Application o f Laws Ordinance, modify the common law, and hold, as we do, that in this country the doctrine applies in criminal cases. " The Court then pronounced itself thus regarding how the issue estoppel principle may be invoked, that: - "In order to Invoke the doctrine of issue estoppef the parties in the two trials must be the same and the fact-in- issue proved or not in the eariier trial must be identical with what is sought to be reagitated in the subsequent trial..." Guided by the principles and factors to be considered before ordering a re-trail as were enunciated in Fatehali Manji v. R [1966] E. A. 343 that a re-trial order should not be made if it will afford the prosecution an opportunity to fill up gaps in their case, our own appreciation of the evidence and exhibits tendered tend to tilt the plumb of justice to ordering a re-trial because nullification of the proceedings is a result of a procedural irregularity not attributable to the prosecution case being weak. Mr. Mtewele's worry of the gaps in the prosecution case being filled does not therefore arise. Added to that, the appellant has just served only three years jail term out of fifteen years jail term he had to serve. In line with the above principles, we are of the decided opinion that it will be improper and unfair to make an order of re-trial of the case to cover also one Emanuel Juma @ Lukanga (then 3rd accused) who was formerly tried and convicted by the trial court but released upon a successful appeal to the High Court, the decision which has not been upset by a superior court (the Court) through either appeal or revision and has not been heard in this appeal. He was acquitted by the High Court and is still holding a valid High Court decision. A re-trial order will have the effect of subjecting or letting then 3rd accused, again, face the same charge in which issues to be prosecuted will be the same. The two defences, autrefois acquit and issue estoppel, are available to him which, in essence, bar his being re-tried. We think, the Court was not availed with all these material factors for consideration when dealing with the appeal in the case of Lufino Gabriel @ Mwakayela vs Reublic (supra), hence a distinction. Accordingly, we are constrained to order a re-trial which have to involve only the remaining then accused persons, that is to say the appellant, then 2nd, 4th and 5th accused persons only. Definitely, prudence and wisdom compel the Director of Public Prosecutions (the DPP) to therefore amend the charge to suit the prevailing circumstances. For the foregoing reasons, we allow the appeal only to the extent that the appellant was not fairly tried as the proceedings are a nullity and the conviction is therefore quashed and the sentence meted on the appellant is set aside. The record be remitted to the trial court for it to conduct a fresh trial before another magistrate according to law and then compose a fresh judgment. In the meantime, the appellant, while 14 reserving his right to bail as the offence charged is bailable, to remain in custody to await trial which we direct it to be expedited. DATED at MWANZA this 24th day of February, 2025. S. A. LILA JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 25th day of February, 2025 in the presence of the Appellant in person and Ms. Verediana Peter Mlenza and Ms. Luciana Shabani, both learned Senior State Attorneys for the respondent/Repubiic is here by certified as a true copy of the original.