Frank Fulgence Ezbon Vs Republic Criminal Appeal No

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: LEVIRA. J.A.. MASOUP, J.A. And NANGELA, J.A.) CRIMINAL APPEAL NO. 552 OF 2022 FRANK FULGENCE EZBON............................................................ APPELLANT VERSUS THE REPUBLIC.......................................................................... RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Musoma at Tarime) (Marlev. SRM - Ext. Jur.) dated the 30th day of September, 2022 in Criminal Sessions Case No. 19 of 2021 JUDGMENT OF THE COURT 18th & 29 h March, 2025 MASOUP. J.A.: The appellant, Frank Fulgence Ezbon, was aggrieved by the decision of Marley, SRM-Ext. Jur. sitting at the Resident Magistrate's Court of Musoma (Extended Jurisdiction) at Tarime in Criminal Sessions Case No. 19 of 2021. The decision convicted him of murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 and imposed on him a sentence of death by hanging. It was alleged, at the trial court, that on 12thJuly, 2020 at Paradise Lodge, Mugumu town within Serengeti District in Mara Region, the appellant did murder one Jesca d/o Lucas. The appellant denied the charge and the allegations against him. Going by the judgment of the trial court, it is evident that the conviction was, largely, based on exhibit PI which was tendered by PF 23411 A/Insp. Steven (PW3), extra-judicial statement (exhibits P3) recorded by Leonard Modestus Kazinzuri (PW4), cautioned statement (exhibit P4) recorded by E 4571 Sgt Saimon Samwel (PW6), and testimonies of Stellah Marwa, a mother of the deceased (PW1) and Pendo George, a receptionist at Paradise Lodge (PW2). On the other hand, the defence evidence was made up of the testimony of the appellant who testified as DW1 and tendered Manchester Bus ticket (exhibit D l) to support his defence of alibi. The substance of that evidence has it that the appellant and deceased were recognised as lovers. They were known to be, for quite a long time, in an intimate relationship notwithstanding instances of relationship crisis that they sometimes experienced. On the fateful day of 12th July, 2022 at about 15:00 hrs, the appellant went with the deceased to Paradise Lodge where they took a room and paid for it. This was after the deceased had phoned PW1 at about 15:00 hrs informing her that she was going out for a lunch with her friends. Having been assigned room no. 9 at the said lodge, the appellant left at about 19:00 hrs, only to come back shortly thereafter, and was never again seen going out by PW2 thereafter. However, the following day, which was 13th July, 2020 at around 9:30 hrs, PW2, as she was cleaning rooms of the lodge, nocked at the door of the room which was occupied by the duo. There was, however, no response from either of them. PW2 successfully pushed and opened the door quite easily. She then entered the room, only to find the room was terribly stinking and the deceased was right on the bed. Attempted efforts by PW2 and her manager to wake her up were of no avail. She had, on instruction of her manager, to report the matter to the police. Eventually, PW1 was called by the police on 13th July, 2020 at about 11:00 hrs, informed of the death of the deceased at Paradise Lodge, identified the body of the deceased on 15th July, 2020, and informed by the doctor who examined the body of the deceased that, the cause of death was lack of oxygen. Following investigation of the case that ensued afterwards, the appellant was arrested in Songwe Region. He, allegedly, confessed to have killed the deceased before Leonard Modestus Kazinzuri, a Resident Magistrate at Tunduma Primary Court (PW4) and E 4571 Sgt Saimon Samwel, a police officer (PW6) who respectively recorded the extra-judicial and cautioned statements and tendered the same as exhibits P3 and P4 without any objection from the appellant. The foregoing evidence notwithstanding, the appellant, testifying as DW1, categorically denied the charge against him. He maintained in his evidence that he was not at the scene as alleged, since he left Mugumu for Mwanza on 7th July, 2020 with his sick grandfather aboard Manchester Bus (exhibit Dl). He insisted that, he stayed in Mwanza until the death of his grandfather on 30th July, 2020 and after his burial at Magu on 3rd August, 2020. Thereafter, he left for Dar es salaam and then for Tunduma. He admitted that, he knew the deceased whom they were long time lovers before they broke up in 2019. He, equally, admitted to have recorded exhibits P3 and P4 but, under duress having been severely beaten and tortured by the police. Acting on the above evidence, the trial court found the appellant liable for the murder. As earlier stated, the trial court convicted the appellant of murder and sentenced him accordingly. Aggrieved, the appellant lodged this appeal. He raised a number of grounds in his memoranda of appeal and supplementary memoranda of appeal lodged on various dates. However, only three grounds of appeal contained in the supplementary memorandum of appeal lodged on 10th March, 2025 were argued at the hearing in lieu of those which were lodged earlier. They together revolve on the issue as to whether the prosecution proved its case against the appellant to the hilt. In respect of the above issue, specific complaints, that were at the heart of the appellant's learned counsel submission, were that, the prosecution did not prove malice aforethought; and that, it was wrong to hold against the appellant by relying on unreliable evidence of PW1 and PW2 and exhibits P3 and P4 which were not only illegally taken but also their substance (both exhibits P3 and P4) does not establish the offence of murder. In advancing the case for the appellant, Mr. Leonard Elias Magweyega who teamed up with Mr. Juma David Mwita, both learned advocates, submitted that the conviction was grounded on exhibits P3 and P4 which were wrongly relied upon. That, exhibit P3 was taken on 14th September, 2020 which is after 9 days following the arrest of the appellant on 5th September, 2020 and his subsequent arraignment on 30th October, 2020; that, no reasons were assigned on the delay which is contrary to the requirements of the C hief Justice's Guidelines that require such statement to be taken immediately and without delay; and that, page 53 of the record of appeal, which is one of the pages of exhibit P3 was not signed by the appellant contrary to the requirements of the Guidelines. We were for that reason urged to expunge it. 5 It was Mr. Magweyega's further contention that, the death of the deceased as narrated by the appellant in exhibits P4 relied on by the trial court to ground the conviction, had its source from the appellant's provocation. That, it was after seeing, in the deceased's mobile phone, photos and video clips of the deceased with another man, both naked, and in the actual act of intimacy. The appellant was, as a result, provoked by what he saw, returned immediately to the room where they were and ended up killing the deceased, having strangled her neck with the aid of a rope from his jacket. In support of the above argument, the learned counsel referred us to instances in the contents of exhibit P4 which reflects his line of argument and which raise an issue as to whether the appellant truly confessed to killing the deceased with malice aforethought. He also argued that, there were other instances of contradictions within exhibit P4 raising an issue whether or not the appellant confessed to have committed the offence of murder. Upon being probed by us on the substance of exhibit P2 which he asked us to expunge, Mr. Magweyega was quick to submit in the alternative that, its substance is the same as that of exhibit P3, for it reveals the same circumstances that negate malice aforethought on the part of the appellant. He added that, other than exhibits P3 and P4, 6 there was no evidence from the prosecution witnesses, in particular, PW1 and PW2 to show that the appellant predetermined to kill the appellant. Ms. Wampumbulya Shani, learned Senior State Attorney who appeared for the respondent Republic at the hearing of the appeal was assisted by Mr. Isihaka Ibrahim Mohamed and Mr. Nico Malekela, both learned State Attorneys. Addressing us in reply, Mr. Mohamed said that the respondent is supporting the conviction for murder. In his detailed submission in reply, the learned State Attorney contended that the prosecution proved the case against the appellant beyond reasonable doubt. That, the malice aforethought was duly proved by the evidence on the record which shows how the deceased was killed by strangulation at her neck and the weapon used which was, in this case, a rope, and the appellant's conduct after the incident. In respect of the appellant's conduct, the counsel submitted that, he fled to Mwanza and then Songwe, immediately, after the incident to avoid being arrested. Mr. Mohamed added that, the trial court did not only rely on exhibits P3 and P4, which are however free from the defects and all what the counsel is alleging, to ground the conviction, but also relied on the testimony of PW2 which proved that the appellant was the last person to be seen with the deceased alive. In elaboration, he submitted that, there is no law providing for specific time within which extra­ judicial statement has to be recorded. Therefore, the failure to account for the delay has no effect on the case. After all, it was further argued, exhibit P3 was recorded voluntarily and both exhibits P3 and P4 were admitted without any objection. Thus, the appellant, it was argued, cannot be heard complaining about those exhibits. Reliance was placed on the authority of Abas Kondo Gede vs Republic (Criminal Appeal No. 472 of 2017) [2020] TZCA 391 (12 August 2020). In addition, the learned advocate said that the failure to sign on each or any page of the extra-judicial statement was not one of the requirements, if we go by what was stated in the case of Japhet Thadei Msigwa vs Republic (Criminal Appeal No. 367 of 2008) [2011] TZCA 407 (1 July 2011). Dismissing the argument that the appellant was provoked, it was argued that, that argument cannot hold water since the appellant denied to have killed the deceased. Reliance was heavily placed, by the learned State Attorney, on Silva Makanyaga vs Republic (Criminal Appeal No. 36 of 2002) [2006] TZCA 190. In rejoinder, the learned counsel for the appellant, essentially, reiterated in a nutshell his submission in chief. However, he added that, 8 the failure to object admissibility of exhibits P3 and P4 at the trial cannot bar one to challenge its legality in appeal. That, the rope taken from the appellant's jacket cannot be said to be a lethal weapon as alleged by the learned Senior State Attorney. And that, the fact that the appellant ran away after the incident, it is a common reaction, in the circumstances, and malice aforethought should not, in the circumstances, be inferred from it. He reiterated that, we find merit on the ground and allow the appeal. We have gone through the record of appeal. Indeed, the trial court convicted the appellant based on a combination of pieces of evidence which we explained above. These are circumstantial evidence, exhibits P3 and P4, which the court found to have been voluntarily made by the appellant, and testimony of PW2. The evidence of PW2 implied that the appellant was the last person to be seen with the deceased alive at Paradise Lodge. The exhibits were not objected by the appellant at the trial. It is when the appellant was testifying in his defence that he said that, he was beaten up, tortured and made to record the statements under duress, although he did not raise any objection when the said exhibits were tendered in evidence. We agree with the learned State Attorney that, on the authority of Abas Kondo Gede (supra), it was already too 9 late for him to raise such objection after he had conceded to their admission. Thus, the issue of involuntariness that he also raised during the defence as he disowned the confessional statements he made before PW4 and PW6 was an afterthought because it was not raised when the statements were introduced into evidence and admitted as exhibits P3 and P4. See for instance, Emmanuel Lohay & Another v. Republic (Criminal Appeal No. 278 of 2010) [2013] TZCA 292 (4 March 2013). As a matter of general principle, an appellate court cannot allow matters that were not raised and decided by the court(s) below. It means, therefore, that the substance of the evidence on those exhibits is taken to have been admitted by the appellant and proved by the prosecution. They did not require further proof. Thus, in so far as the statements were freely made by the appellant, what is contained therein is the best evidence we can have on what had happened. See the cases of Mohamed Haruna @ Mtupeni and Another v. Republic (Criminal Appeal No. 259 of 2007) [2010] TZCA 250; and Selemani Hassani v. Republic (Criminal Appeal No. 364 of 2008) [2010] TZCA 325 (22 March 2010). We dismiss this complaint forthwith. Equally, the complaint that, there was a delay of 9 days which was not accounted for is without merit as is the argument that there was a 10 page in exhibit P3 which was not signed by the appellant. Both arguments by the counsel for the appellant are neither supported by the Guidelines nor any law that specifies the period within which an extra­ judicial statement must be recorded by an accused whenever he is ready and providing for a requirement of signing each page of extra­ judicial statement. See for instance, Japhet Thadei Msigwa (supra). We equally dismiss the two complaints. Having disposed of the above complaints, we now deal with the issue whether the prosecution case was proved beyond reasonable doubt. Ahead of everything, it is worth noting that the fact that the appellant caused the death of the deceased, if we go by the substance of the confessional statements (exhibits P3 and 4), is not disputed. Thus, the specific question to be resolved is whether the killing was with malice aforethought so as to make it murder. It is settled law that where death occurs as a result of a fight or on account of provocation, the killing is manslaughter and not murder. See for instance, Juma Kilimo v. Republic (Criminal Appeal No. 70 of 2012) [2012] TZCA 51 (9 July 2012); Benjanin Mwansi v. Republic [1992] TLR 85; Herman Nyigo v. Republic [1995] T. L. R. 178; Saidi Kigodi @ Side v. Republic (Criminal Appeal 281 of 2009) [2011] TZCA 137 (1 July 2011); and Jacob Asegelile Kakune v. D.P.P. (Criminal li Appeal 178 of 2017) [2020] TZCA 75 (24 March 2020); Aloyce Kitosi v. Republic (Criminal Appeal 284 of 2009) [2012] TZCA 242 (6 December 2012); and Jackrine Exsavery v. Republic (Criminal Appeal 485 of 2019) [2021] TZCA 428 (27 August 2021). In relation to provocation which is at issue in this appeal, we are aware that for it to be a defence, it is not enough for one to cite a long existingconflict or provocation, for that will not suffice if thereis no last and sudden act of provocation. See, Jacob Asegelile Kakune(supra). In Benjanin Mwansi (supra), we offered some kind of a mathematical formula as to what may amount to provocation which may be available to an accused person as a defence. In that case, we held that: "K illing on provocation is provided in section 201 o f the Penai Code thus: 'When a person who law fully k ills another under circum stances which, but fo r the provisions o f this section ; would constitute murder, does the act which causes death in the heat o f passion caused by sudden provocation as hereinafter defined, and before there is tim e fo r his passion to cool, he is g u ilty o f m anslaughter only.' Thus, in killin g on provocation, circum stances which constitute m urder are proved and established. But that is not the end. There is som ething extra and that is sudden provocation. I f were to be m athem atical and devise a form ula we would say: Killing by provocation is equal to circum stances which constitute m urder plus sudden provocation without tim e fo r cooling down. So, what the learned Judge did was to catalogue circum stances which would constitute murder. But the issue is: Was there or was there not sudden provocation?" With the foregoing in mind, we have gone through the testimonies of all witnesses and the substance of the post mortem report (exhibit P2), as well as the extra-judicial statement (exhibit P3) and cautioned statement (exhibit P4) which describe and detail circumstances and the manner in which the deceased met his death. However, we have noted that there is evidence emerging from the confessional statements (exhibits P3 and P4), which were heavily relied on by the trial court to ground the conviction and which was however not challenged and not considered by the trial court. The evidence is to the effect that, the appellant and the deceased were in intimacy relationship for quite a long time. That fact, was a matter of common knowledge to PW1 and PW2 and is evident in the appellant's confessional statements (exhibits P3 and P4). That, the duo had squabbles amongst themselves before. That, on the fateful day, the appellant found from her phone photos and video clips in which she was with another man, both naked and in an act of intimacy. That, seeing that, the deceased was cheating on him, the appellant was provoked, lost his self-control and, as a result, ended up killing the deceased. That, the killing was by strangling her with the aid of a rope from within the jacket that he wore and nothing else. According to the said confessional statements (exhibits P3 and P4), the appellant had before the killing seen the deceased with another man and had all along been accusing her of infidelity. Their meeting at the lodge on the fateful day was only meant to resolve their differences and forgive each other, of which they seemingly did. The deceased as a result asked the appellant to buy her some chips of which he agreed and left with the deceased's phone to get the chips for her. Upon perusal on the contents of her WhatsApp account in her phone, whilst on his way to buy her some chips, his eyes landed on the photos and video clips revealing the deceased with another man, both naked and in actual act of intimacy. The seeing of those photos and video clips sparked off the appellant's anger and as a result, he lost self- control. Consequently, he, there and then, returned to the room and ended up killing her by strangling her with the aid of his jacket's rope out of provocation. The evidence of other prosecution witnesses, in particular, PW1 and PW2 did not rule out what was admitted by the appellant as to how the appellant killed the deceased. While the prosecution heavily relied on the confessional statements to prove that, the appellant actually killed the deceased with malice aforethought, it did not lead any evidence to negate the defence of provocation which is apparent in the said statements. On the contrary, the receptionist at the paradise lodge (PW2) supports what was stated in the statements that the duo were lovers, and that the appellant returned to the lodge immediately after leaving it on the fateful day. The deceased mother (PW1) also supports the statements to the effect that the duo were in intimacy relationship which she did not, however, approve. Likewise, exhibit P2 is consistent with what the appellant stated in his confessional statements as to the circumstances and manner in which he killed the deceased by strangling her neck with the aid of a rope. Similarly, none of the witnesses, particularly PW2, suggested that the appellant had premeditated to kill the deceased on the fateful day. In this respect, there was no evidence led by the prosecution which showed that the appellant was armed when he arrived at the lodge with the deceased or even after leaving and coming back. There was also 15 nothing to suggest that the appellant brought a rope which was not part of his jacket to execute his purpose. Likewise, none of the prosecution witnesses also suggested that the alleged photos and video clips were non-existent and thus the alleged defence was not available. We are left wondering on what would have been the decision of the trial court if it had in any way directed its attention on the facts in the confessional statements which raised a defence of provocation and which, if admitted, would negate malice aforethought. We made such consideration mindful that, we only have the story as narrated by the appellant in his confessional statements (exhibits P3 and P4) which underlined the defence of provocation, and which story was used by the prosecution and believed by the trial court to ground the conviction although it failed to consider the circumstances relating to defence of provocation inherent in the said statements. On whether or not there was sufficient circumstances of provocation warranting the defence of provocation to be available to the appellant as raised in his confessional statements, we resolve the issue in the appellant's favour. Taking into account the evidence as analysed above, we find that, there was, in the circumstances, sudden provocation caused by those photos and video clips of the deceased with another man, whilst both are naked and in an actual act of 16 intimacy. Bearing in mind what was stated by the appellant in his confessional statements about those photos and video clips, we think that, they were deadly enough to deprive the appellant his self-control if they are looked at in relation to the relationship that existed between the deceased and the appellant. We are also satisfied that, the appellant acted within the heat of the passion and that, there was no moment of cooling down having returned right away to the room where the deceased was and killed her with the aid of the rope that was part and parcel of his jacket. We are also, increasingly, of the view that, had the learned trial judge directed his mind to the circumstances described by the appellant in his confessional statements, he would not have rejected the appellant's defence of provocation, so to speak. We, therefore, find that, the appellant killed the deceased out of provocation. Consequently, we find the appellant not guilty of murder but of manslaughter. In the result, we quash the conviction for murder, and set aside the sentence of death. Henceforth, we convict the appellant of the offence of manslaughter contrary to section 195 (1) of Cap. 16. Considering the circumstances of the case, we impose on the appellant a sentence of imprisonment for a term of fifteen (15) years since he has been in prison since 30th September, 2022. The appeal stands allowed to that extent. DATED at MUSOMA this 24th 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 25th day of March, 2025 in the presence of Appellant in person via video link from Musoma District Prison and Mr. Jonas Samwel Kivuyo, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original.