Matinde Mwita Kirangani Another Vs Republic Criminal Appeal No

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: JUMA, C.J.. MASOUP, J.A. And NANGELA, J.A.) CRIMINAL APPEAL NO. 286 OF 2022 MATINDE MWITA KIRANGANI .1st APPELLANT MWITA MATINDE MWITA 2nd APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Musoma at Tarime) (Moshi. PRM. Ext. Jur.) dated the 25th day of May, 2022 in Criminal Sessions Case No. 3 of 2021 JUDGMENT OF THE COURT l 2th & 17th March/ 2025 MASOUP. J.A.: Matinde Mwita Kirangani and Mwita Matinde Mwita, the appellants in this appeal, are father and son respectively. They were both convicted of a charge of murder in the High Court of Tanzania at Musoma contrary to section 196 of the Penal Code, Cap. 16 and sentenced to death by hanging. The particulars of the offence in respect of which the appellants were charged, tried, and found guilt were that on 22nd May, 2019 at Genkuru village within Tarime District in Mara Region, did murder one Chacha s/o Nyamhanga Magendo, the deceased. Each of the two appellants had pleaded not guilty to the charge of murder. The substance of the prosecution evidence was from a total of seven (7) prosecution witnesses, namely, Ryoba Nyamhanga (PW1), Nchangwa Chacha (PW2), Tantu Wanene (PW3), Matiko Mega (PW4), PC Moses (PW5), DCPL Nicholas (PW6), and Dr. Gonzaga Gerion Ngonyani (PW7) and also a report on the post mortem examination (exhibit PI) tendered by PW7. On the other hand, the defence evidence was from the appellants who testified as DW1 and DW3 respectively, Bhoke Matinde, the first appellant's wife (DW2), Angelina Kehongo Mwita, the second appellant's wife (DW4), and a medical report (PF3) for the first appellant (exhibit Dl). At the end of the trial, the trial court found the appellants guilty of the offence of murder as charged and sentenced each of the appellant to death by hanging. In arriving at its decision, the trial court was of the finding that the deceased died unnaturally on 22nd May, 2019. He was also satisfied that three of the prosecution witnesses, namely PW1, PW2, and PW3 were eye witnesses who identified the appellants as the assailants, having used lethal weapons, to wit, machetes, spears and stones to attack the deceased on vulnerable parts of his body. In so doing, they caused death to the deceased. As to the defence, the trial court was of the finding that it did not establish any reasonable doubt to the prosecution case. Thus, the court was satisfied that the prosecution had proved the case beyond reasonable doubt which in its finding was driven by a land dispute. Aggrieved, the appellants lodged this appeal to this Court challenging the conviction and sentence imposed on each. They raised a number of supplementary grounds of appeal, in addition to seven grounds contained in the memorandum of appeal initially lodged. For reasons that will become obvious subsequently, we undertake not to reproduce all the grounds of appeal here, save for the second ground in the memorandum of appeal lodged on 14th July, 2022. In view of submissions that ensued which we will deal with subsequently, we think that such ground can best be paraphrased thus: "The trial court erred in convicting and sentencing the appellants without considering that, they were denied by the court their right to cross-examine each other on their respective defence which incriminated one another and which meant that the conduct o f the trial, in which they were together unfairly represented by one and the same learned counsel 3 notwithstanding the conflicting stance o f their respective defence, was unfair on their part." At the hearing, the appellants were represented by Mr. Baraka Makowe and Mr. Daud Mahemba, both learned advocates. On the other hand, the respondent Republic was represented by Ms. Shose Naiman and Mr. Charles Kagirwa, both learned Senior State Attorneys. Addressing us on the above ground, Mr. Mahemba argued the appellants were co-accused persons in the trial court where they were jointly charged with the offence of murder and represented by the same learned counsel. Going by the record of appeal, the learned counsel submitted that the substance of the defence evidence of each of the appellants incriminated one another. That, each of the appellants had, in the circumstances, to be represented by a different learned advocate and given a right of cross-examination. However, none of the appellants was, during the trial given an opportunity to cross-examine the other in relation to the evidence that implicated him, argued Mr. Mahemba. In elaboration, he pointed out that the appellants continued throughout the trial to be represented by the same advocate who could practically not put any questions to both the prosecution and the defence witnesses. Mr. Mahemba took us to page 34 through 36 of the record of appeal. He showed us how the prosecution witnesses, namely, PW5 and PW6 testified that, the appellants incriminated each other during investigation. He pointed out that, PC Moses (PW5) at page 34 of the record of appeal testified in chief that the first appellant told him that it is his son (the second appellant) who killed the deceased on the fateful day; and DCPL Nicholas, the investigator (PW6) also testified in chief at page 36 of the record of appeal that the second appellant told him that it is his father (the first appellant) who killed the deceased. In addition, Mr. Mahemba referred us to the testimony in chief of the second appellant at page 49 of the record of appeal where the adverse evidence incriminating the first appellant emerged. Emphasizing, the learned advocate submitted that since the evidence given by the appellants implicated one another, the appellants had a right of cross-examining each other during the trial in order to test the veracity of the testimony or shake their credibility as witnesses. Beseeching us to nullify the proceedings and order re-trial or otherwise, Mr. Mahemba had it that the failure to afford opportunity to the appellants to cross-examine each other means that they were both deprived of their right to put before the trial court their defence to the charge laid against them. It further means that the trial court erroneously considered that the appellants had properly made their defence case according to law, which it however found not to have raised doubt to the prosecution evidence. In his submission, since the appellants were denied their basic and essential right to cross- examination and therefore to fair trial, the Court should find that there was no defence by the appellants to the charge. Having heard and considered Mr. Mahemba's submission, Ms. Naiman had nothing other than to support the appeal on that ground. She roundly submitted that the record of appeal, as submitted by her learned friend, speak loud and clear that the appellants gave evidence that incriminated each other and, hence, the right on their part to cross- examine each other. Consequently, the omission to allow them to cross- examine each other after becoming obvious that they have adverse evidence on each other resulted in an unfair trial which vitiates the entire trial proceedings. According Ms. Naiman, the only way forward is to nullify the trial proceedings, quash the conviction and set aside sentence and thereafter make an order for a re-trial. She seemingly believed that there is sufficient prosecution evidence to ground convictions if re-trial is 6 ordered, pointing that the inconsistencies in the evidence if at all were minor and did not go to the very root of the case. That, the failure to tender sketch map of the scene of crime listed at the committal and procuring the police officer who drew it was not at all fatal for the scene of crime was not disputable and the other witnesses could still prove the case beyond reasonable doubt. Further that, although exhibit PI was not read out and is liable to be expunged, proof of death and its causes can still very well be established by the other witnesses. It is not without relevance to point out that Mr. Makowe and Mr. Mahemba, informed by the record of appeal, were of a different position, maintaining, in a nutshell, that the pitfalls in the prosecution case were material and go to the root of the case. We have perused the record of appeal in the light of the submissions by both learned counsel. The issue is whether the appellants gave evidence that incriminates one another. The ancillary to the foregoing issue is the question whether the appellants were given right to cross-examination having incriminated one another. It is a fact that the appellants were jointly charged with the offence of murder and were throughout the trial represented by the same advocate who practically could not cross-examine the appellants (DW1 and DW3) and their witnesses (DW2 and DW4). Our findings from the perusal of the record of appeal supports the submissions by both learned counsel. At page 34 of the record of appeal which was referred to us by Mr. Mahemba, the testimony in chief of PW5 in part reads thus: "Mzee Matinde [the first appellant] said there was a conflict that occurred which caused his son [the second appellant] to kill. I instructed the OC's Cpi. Mohamed thereafter who instructed me to search for him." Similarly, when giving his testimony in chief at page 49 of the same record, PW6 stated: "I interrogated suspect Mwita Matinde [the second appellant] over homicide case and he denied and he said it was his father [the first appellant] who did the said homicide." Clearly, the above testimonies by the prosecution witnesses make reference to what transpired at the investigation stage in relation to the appellants which was none other than giving adverse statements against each other. In addition to what was testified by such prosecution witnesses, we found similar pattern of a testimony in chief given by DW1 (the second appellant) at page 49 of the record of appeal which is adverse to DW1 (the first appellant). It reads: "At the police station, I was told that I killed a man. They transferred me to Nyamwaga police station, they recorded my statement, they asked me where I was, and I said I was at Nyamagana. I said I was not present when the offence was committed. I pray this court to know that it is my father [the first appellant] who committed this as I was not there." On whether or not the appellants were afforded the right of cross- examination in view of the presence of evidence that is adverse to one another, we examined the defence case found at page 42 through 51 of the record of appeal. Our finding was that apart from the respondent Republic who was afforded opportunity to cross-examine the appellants and their witnesses, neither the first appellant nor the second appellant was given such right to cross-examine each other and their respective witnesses, that is DW2 and DW4. Notably, since the appellants were represented by the same learned counsel, it was indeed not practical for the counsel represent both appellants and cross-examine them and their respective witnesses. The option available was for the trial court to adjourn the trial so that each of the appellants could get a learned counsel to effectively represent him and to exercise his right to cross-examination. See for instance, Elias Mwaitambila & Others v. Republic (Criminal Appeal 414 of 2013) [2015] TZCA 508 (18 August 2015). There is, however, no record that such adjournment was made to allow room for the appellants to get a different counsel so that they could realise their right to cross-examination. In the case of Albanus Aloyce & Another v. Republic (Criminal Appeal No. 283 of 2015) [2016] TZCA 616 (21 July 2016), the Court stated: "Before we are done with this matter, we wish to comment on another anomaly that we noted. The proceedings show that after each accused had testified his co-accuseds 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 aiong with him, they have a right, we believe, to put questions to him/her. This is essential because there may be times when an accused may give incriminatory evidence against his/her co- 10 accused(s) in which case a denial o f the right o f cross-examination by the concerned accused could result in a miscarriage o f justice. Judicial officers are enjoined to taken heed o f this." Similarly, in Mariki and Others v. Republic (Criminal Appeal No. 289 of2015) [2016] TZCA 70 (28 October 2016), whilst quoting what was stated in Mataka and Othersv. R. [1971] E. A. 495, pp.502-503, the Court held: "It is well 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. . . " In light of what we found on the record of appeal and the above authorities, we agree with both learned counsel that in the circumstances of the case, the appellants ought to have been allowed to cross-examine one another based on the incriminating evidence that they gave which is apparent on the record. Since the appellants were not afforded that opportunity, we are satisfied that the omission li amounts to violation of fundamental right. It is a fatal irregularity that vitiates the whole proceedings as it has the effect of rendering the trial unfair. We are of the above position because the right to fair trial is one of the basic rights enshrined under article 13 (6) (a) of the Constitution of the United Republic of Tanzania of 1977 as amended which imposes an inviolable duty on all adjudicative organs to ensure persons seeking their rights are afforded opportunity to be heard. See for instance, the cases of Elias Mwaitambila & Others (supra); Mussa Emmanuel Daud v. Republic (Criminal Appeal No. 191 of 2022) [2025] TZCA 99 (25 February 2025); Ndania Karuki v. R. (1945) 12 EA.CA 84; and Edward Msengi v. R. (1956) 23 EA.CA. 553. In view of our finding, we are thus entitled, in the circumstances, to nullify the proceedings of the trial court as we are going to do so shortly. On the way forward, we took into account the principles and factors to be considered before ordering a re-trial as were enunciated in Fatehali Manji v. Republic [1966] 1 EA 343. They are to the effect that re-trial order should not be made in a situation where it will afford the prosecution an opportunity to fill up gaps. We are also aware of the position we took in Mariki and Others (supra) and Mussa Emmanuel Daud (supra) where in akin situation like the one we are facing an order for re-trial was found to be the best option in the circumstances. However, having painstakingly considered the circumstances of the case before us, regard being had to the evidence on the record and the irregularities relating to it, we think an order for re-trial is not the best option in the circumstances. We are of that view because we think that, such an order is likely to be utilized by the prosecution to mount a better case against the appellants by filling in the gaps in order to achieve convictions. We are mindful that in the course of hearing this appeal the learned counsel for the respondent Republic admitted that that there were irregularities in the admission of the post mortem examination report exhibit PI which as a result has to be expunged, the inconsistencies in the prosecution evidence, among others and the fact that the incident had to do with quarrels that were rooted on a land dispute. Under normal circumstances, in a case of this nature, a re-trial would be ordered- See, Mariki and Others (supra) and Mussa Emmanuel Daud (supra). However, in the circumstances of the instant case, it would not be in the interest of justice to make such an order as we have pointed out above - See, Albanus Aloyce & Another (supra). 13 In our judgment, therefore, we allow the appeal. Consequently, we nullify the proceedings, quash the convictions and set aside the sentences meted out to the appellants. In the circumstances, we order the immediate release of the appellants from prison if they are, or any one of them is, not otherwise retained for some other lawful cause. It is so ordered. DATED at MUSOMA this 15th day of March, 2025. I. H. JUMA CHIEF JUSTICE B. S. MASOUD JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL The Judgment delivered this 17th day of March, 2025 in the presence of the appellant in person via video link from Musoma District Prison and Mr. Jonas Samwel Kivuyo, learned State Attorney for the