Magutu Sima Maro Vs Republic Criminal Appeal No

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: LEVIRA. J.A. MASQUD. J.A. And NANGELA. J.A.^ CRIMINAL APPEAL NO. 553 OF 2022 MAGUTU SIMA @ MARO.............................................. APPELLANT VERSUS THE REPUBLIC......................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma (Mbaqwa, J.l dated the 9th day of August, 2022 in Criminal Sessions Case No. 22 of 2022 JUDGMENT OF THE COURT 19th & 24* March, 2025 LEVIRA, J.A.: The appellant, Magutu Sima @ Maro and 6 Others who are not parties to this appeal were arraigned before the High Court of Tanzania at Musoma facing murder charge. It was alleged in the particulars of the offence that, on 3rd May, 2019 at Nyamihuru village within Serengeti District in Mara Region, the appellant and his fellows murdered one Sigfrid Kainunura, whom we shall refer herein as the deceased. The appellant and other accused persons denied the charge against them. As a result, the trial was conducted which ended with the appellant's conviction and death sentence. Other accused persons who were charged with the appellant, save for the fourth accused Masiko Sima Marwa who died before judgment, were found not guilty of the offence and thus acquitted. Aggrieved, the appellant has preferred the present appeal. At this juncture, we find it apposite albeit briefly to state the background of the appeal before us. Following the allegation that the appellant and his fellows murdered the deceased; and having denied the charge, the trial court had to conduct a full trial. In order to prove the charge against the appellant and his fellows, the prosecution paraded a total of six witnesses and tendered six exhibits. According to Simon Juma Ntara (PW1) a Village Executive Officer of Nyamitita Village in Serengeti District, on 5th May 2019 at around 8:00 hours he received a phone call from the chairman of Nyamihuru village informing him that, he heard an alarm announcing that, there was a dead body in the pond within Nyamehuru. PW1 went to the scene of crime (at the pond) and called Majimoto Police Station informing them of the dead body in the pond. Shortly, thereafter, police officers arrived at the scene of crime in company of a medical Doctor one Barnaba Paulith Joseph PW1, saw the body of the deceased tied up with three stones and it had about six injuries. The doctor examined the body and marked that the death was caused by cut injuries. Alfred Keye Mwalubilo (PW2) who was the OCCID from Mugumu Police Station, also attended at the scene of crime on 5th May 2019 where he also saw the body of the deceased. His testimonial account regarding the deceased was almost the same as that of PW1. In addition, he testified that, on 11th May, 2019 at around 22:00 he went, together with other police officer, to Nyamehuru and managed to arrest six people out of seven whom he received the information from the informers that, they were involved in the incident. However, he said, it took them time before arresting the appellant; on 22nd May, 2019. PW2 seized the motorcycle (exhibit P3), with engine number 155 FM12D 5177198, Chassis No. KEFKE 700017888, handwritten Plate No. T 473 CAD found in possession of the appellant, allegedly, used by the deceased before his death. The said motorcycle belonged Francis Philipo Munishi (PW4), who handed it to the deceased for commercial purposes. Other police officers who were in a team which arrested the accused persons, included: PF 21320 A/Insp Egwaga (PW5) who also recorded cautioned statement (exhibit P5) of Nyambina Sheki (3rd accused) and F.3785 D/Sgt Proches (PW6) who recorded and tendered the cautioned statement of the appellant (exhibit P6) during trial. In his defence, the appellant admitted to have been arrested on 22nd May, 2019 at Park Nyigoti mines where he was dealing with mining activities. He was ferrying mine stones to the machine by using a motorcycle, a property of his friend, one Muhagachi Rubere from Park Nyigoti. He denied to have committed the offence he was charged with, and to have known any of the accused persons he was charged with before the case. The trial court received evidence from all the accused persons and having weighed the evidence in totality, it was satisfied that the appellant committed the offence he was charged with. Accordingly, he was convicted and sentenced to suffer death by hanging. Other accused persons, save for the 4th accused who passed away before the judgment, were found not guilty. As a result, they were acquitted. In his memorandum of appeal lodged in this Court on 12th December, 2022, the appellant raised six grounds of appeal. However, for reasons to come into light shortly, we shall not reproduce them herein. At the hearing of the appeal, the appellant was represented by Mr. Leonard Magwayega, learned advocate, whereas the respondent Republic had the services of Ms. Monica Hokororo, learned Senior State Attorney. Mr. Magwayega opted to submit in support of the appeal, only on the first ground in the memorandum of appeal. In this ground, the appellant's complaint is that, the trial court failed to assign each accused his advocate as per the requirements of the law. According to Mr. Magwayega, the record of appeal is clear that, initially, the accused persons were seven, but the 4th accused died and his case abated. The remaining six accused persons were represented by one advocate who was himself as it can be observed from page 28 of the record of appeal. He contended that, basically, the accused persons were implicating each other in their statements / evidence. Therefore, it was not proper for them to be represented by one advocate as they had conflict of interest, he added. According to him, this irregularity rendered the whole proceedings, Judgment, and orders made by the trial court a nullity. He urged us to take the cause we took in Matinde Mwita Kirangani and Another v. Republic, 2022 [TZCA] 286 (17 March 2025; TANZLII). Regarding a way forward, Mr. Magwayega urged us not to order for a retrial in the circumstances of this case. He identified some of the prosecution witnesses who were not listed and their statements were not read together with exhibits which were not read during committal proceedings; but they were called to testify and their evidence was relied upon to ground the appellant's conviction. These were; PW5 and PW6 together with exhibit P3, the motorcycle which PW4 claimed that he handed to the deceased for commercial purposes. He referred us to the specific pages where those witnesses testified without notice. He showed us that at page 55 and 81, PW5 and PW6 respectively testified without notice issued under section 289 (1) (2) and (3) of the Criminal Procedure Act, Cap 20, although they were not in the list of prosecution witnesses. Based on his submission, Mr. Magwayega urged us to expunge the evidence of PW5 and PW6 from the record together with exhibit P3. Having done so, he said, the remaining evidence on record will not be sufficient to sustain conviction of the appellant. Thus, he urged us not to order for a retrial, otherwise, it will amount to affording an opportunity to the prosecution to fill in gaps. Instead, he said, the identified gaps should benefit the appellant. Therefore, he urged us to allow the appeal, quash conviction, set aside the sentence meted on the appellant and set him free. In reply, Ms. Hokororo conceded that there was conflict of interest between accused persons, yet all them were represented by one advocate and denied the right to cross examine each other, hence, unfair trial. She went on to submit that the trial court relied on the appellant's cautioned statement tendered by PW6 who was not listed in the list of prosecution witnesses; the evidence of PW5 who was also not listed without notice and exhibit P3 which was not in the list of exhibits. Failure to list those witnesses and the exhibit was a fatal irregularity and thus, she urged us to expunge that evidence from the record. Having expunged that evidence, she said there will be no sufficient evidence to sustain the appellant's conviction. She concurred with Mr. Magwayega that this case is not fit for a retrial. Finally, Ms. Hokororo supported the appeal on the first ground. Mr. Magwayega reiterated his submission in chief while making a rejoinder. Having heard submissions by the counsel for the parties, the ground of appeal, and the entire record of appeal, there is no dispute between the parties that throughout the trial all seven accused persons, including the appellant, were represented by the same advocate, one Leonard Magwayega as it can be seen from page 28 to 113 of the record of appeal. The question that follows is whether the accused persons gave incriminating evidence which required cross-examination by each other. If the answer to this issue is in the affirmative, then whether practically it was possible for their advocate to cross examine them and what are the possible consequences. We note that although counsel for the parties were at one that the accused persons gave incriminating evidence against each other, they only gave blanket statements with no specific reference to the record of appeal. We took liberty to critically examine the record of appeal to satisfy ourselves on the existence or otherwise of the alleged incriminating evidence. In order to determine the first issue, we have raised, we shall pick some parts of the incriminating evidence from the record of appeal to appreciate what was concurred by the counsel for the parties. For the purpose of this appeal, we shall focus on the appellant and the incriminating evidence by Nyambina Sheki @ Maginga (DW3) who was the third accused. The record of appeal reveals at page 55 that, the third accused was arrested at Nyamihuru village by PW5 who was in company of other police officers and sent to Mugumu Police Station. Thereafter, PW5 recorded his cautioned statement which was admitted as exhibit P5 at the trial. According to PW5, the third accused admitted to have been involved in carrying the deceased body from Hellen's home to the pond. At page 99 of the record of appeal, DW3 admitted that he was arrested while at Nyamihuru village by police officers and taken to Magumu Police Station. He also admitted that, he recorded his statement thereat which was admitted as exhibit P5 and that, as per the 8 said exhibit, he was involved in carrying the body of the deceased to the pond. We have thoroughly examined exhibit P5 which is found at page 123 of the record of appeal and discovered that DW3 stated that he was asked by the appellant to assist him, which he agreed, to carry the body of the deceased to the pond. Following that information, the seventh accused (the appellant) was arrested by PW6 and other police officers at Park Nyogoti and he was in possession of a motorcycle (exhibit P3) which was used by the deceased. Thereafter, he was sent to Mugutu Police Station where his cautioned statement (exhibit P6) was recorded by PW6. In his defence, he (DW6) denied to know any of the co-accused before the case. However, he admitted to be found with exhibit P3 at the time of his arrest. Although in his defence the appellant denied to have known any of the co-accused persons, he mentioned the third accused (DW3) to be the person whom they worked together to kill the deceased as per exhibit P6, where he said: "... ndipo nilipompiga/nilipomkata na panga nillyokuwa nayo kichwani mara mbili, NYAMBINA s/o SHEKI [DW3] akampiga na rungu kifuani akaanguka chini. "[Emphasis added] The excerpt above translates that DW3 was involved in killing the deceased as he used a club (rungu) to beat the deceased. The above highlights give a clear picture that the accused persons (DW3 and DW6) gave incriminating statements against each other. However, there is no where in the record of appeal indicating that they were given a right to cross examine each other. We are of the considered view that since ail accused persons, DW3 and DW6 inclusive were represented by the same learned counsel, it was impracticable for him to cross examine them and / or lead them to cross examine each other. In Mugisha Katulebe v. Republic, (Criminal Appeal No. 76 of 2022) [2024] TZCA 1157 (28 November 2024; TANZLII), when the Court was dealing with an issue regarding failure to accord co-accused a right to cross examine, had this to say: "Under the said circumstances, regardless of not raising any objection on the procedure invoked by the trial court, the appellant and the co­ accused could not be effectively represented by one counsel. Effective representation before the court o f law is one of the tenets o f a fair hearing which embraces a fundamental right to be heard envisaged under article 13 (6) (a) o f the Constitutional of the United Republic of Tanzania, 1977/' We associate ourselves with the above decision and remark for emphasis that, the right to a fair trial is guarded by article 13 (6) (a) of the Constitution. Nevertheless, in the present case, there was no party reminded the court about this fundamental right and the court itself did not afford them such right. The appellants were represented by the same advocate making it impracticable for them to cross examine each other despite the incriminating evidence they adduced against each other. In the circumstances, it cannot be said with certitude that the appellant was fairly and justly tried together with other accused persons, who were eventually acquitted by the trial court. Therefore, in view of what we have endeavored to discuss, we find merit in appellant's complaint in the first ground of appeal and proceed to declare the proceedings of the trial court a nullity. We quash the conviction and set aside the appellant's death sentence. The next question for our determination is whether or not to order a retrial. The answer to this question is not farfetched. The principles governing whether or not to order retrial were established by the erstwhile Court of Appeal for East Africa in Fatehali Manji v. R. (1966) 1 E.A 343, as follows: li "In general a retrial will be ordered only when the original trial was illegal or defective it will not be ordered where conviction is set aside because of insufficiency of evidence or for purposes of enabling the prosecution to fill up gaps in its evidence at the first trial, even when a conviction is vitiated by a mistake o f the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial would be ordered; each case must depend on its facts and circumstances and an order for retrial should only be made where the interest of justice require it " Having scrutinized circumstances of the present case under the principles enunciated in the above authority, we are of the settled view that an order for a retrial is not in the best interest of justice. We shall explain. It is apparent on the record of appeal that, the conviction of the appellant was based on the evidence deduced from exhibits P6 - his cautioned statement, exhibit P5 - the cautioned statement of the third accused and exhibit P3 - the motorcycle which were tendered by prosecution witnesses, PW6 and PW5 who were not listed among prosecution witnesses during committal and nothing on record indicating that the prosecution issued any notice under section 289 of the CPA to 12 call them as witnesses. Failure to list them or issue a notice to call them denied the appellant an opportunity to know the substance of their evidence for him to prepare for his defence. Apart from that, exhibit P3- the motorcycle which was, allegedly, being used by the deceased and which according to PW6 was found with the appellant, was omitted from the list of prosecution exhibits. At page 150 of the record of appeal, the trial Judge stated categorically as follows: "There are three pieces of circumstantial evidence which implicate the accused namely, caution statement of Nyambira Sheki Magingi 3rd accused (exhibit P5), cautioned statement o f Magutu Sima Maro 7th accused exhibit P6 and the motorcycle (exhibit P3)." In our considered view, those exhibits were heavily relied upon by the trial Judge to ground the appellant's conviction. They were, in the first place, not supposed to be relied upon due to the reasons we have explained above. Therefore, in the circumstances, we think, ordering a retrial will enable the prosecution to fill up gaps in its evidence at the first trial. We thus refrain from giving such an order. Instead, having nullified proceedings of the trial court, quashed conviction and set aside the death sentence meted on the appellant, we order his immediate release from prison unless held for other lawful cause. DATED at MUSOMA this 22nd day of March, 2025. M. C. LEVIRA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL The Judgment delivered this 24th day of March, 2025 in the presence of the Appellant in person and Ms. Joyce Godfrey Matimbwi, learned State Attorney for the respondent/Republic, is here by certified as a true copy of the original.