gelard athanas kivwango vs the director of public prosecutions 2022 tzca 36 18 february 2022

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MKUYE, J.A., GALEBA, J.A. And KIHWELO, J.A.^ CRIMINAL APPEAL No. 103 OF 2019 GERALD ATHANAS @ KIVWANGO....................................................... APPELLANT VERSUS THE DIRECTOR OF PUBLIC PROSECUTIONS................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Sumbawanga) (Mambi, J.) dated the 5th day of April, 2019 in Criminal Sessions Case No. 57 OF 2016 JUDGMENT OF THE COURT 14th &. 18th February, 2022 KIHWELO, J.A,: This appeal arises from the decision of the High Court of Tanzania sitting at Sumbawanga (Mambi, J.) in which the appellant, Gerald Athanas @ Kivwango on 05.04.2019 was found guilty of murdering Balthazar Athanas @Mwanandenje ("the deceased"). According to the information to which the appellant pleaded not guilty, it was alleged that on 12.02.2016 at Kambiala village within Kalambo District in Rukwa Region, the appellant murdered the deceased contrary to section 196 of the Penal Code [Cap. 16 R.E. 2002, now R.E. 2019 (the Penal Code)]. i The facts of this case, in all their painful detail, are essentially told by Evodia Kamsin (PW1) and other prosecution's witnesses and shows that, on 12.02.2016 the deceased was sleeping with his wife (PW1) when around 00:30 HRS suddenly the sitting room door was opened and then the appellant entered inside the bedroom and from nowhere the appellant while illuminating the room using his torch started attacking severely the deceased in the head and chest using a machete. Shockingly, PW1 started screaming for help whereby David Athanas (PW2), the deceased's son who by then was sleeping just next room appeared for help but the appellant managed to escape. However, PW2 who came with a torch was able to identify the appellant. Sadly, the deceased succumbed to death immediately owing to the severe nature of injuries inflicted on him and according to the Post-Mortem Examination Report which was later prepared and produced in the trial court by Dr. Richard Mafunda (PW5) and admitted in evidence as exhibit P.3, the course of death was severe external haemorrhage. The incidence was immediately reported to the village chairman Mr. Patrick Sichome (PW3) who relayed the information to the police and soon thereafter the investigation was in high gear and WP. 7613 DC Raheli (PW4) was on the same day assigned to interview the appellant who immediately after the murder of his father (the deceased) surrendered himself at the village office and was handed to the police. PW4 recorded the cautioned statement of the appellant which was admitted in evidence as exhibit P.2. Furthermore, Shija 2 Mdadila (PW6) the Justice of Peace recorded the extra judicial statement of the appellant which was also received in evidence as exhibit P.4 and F. 6553 Detective Geofrey (PW7) is the police investigator who was assigned to investigate the case. The motive for the murder according to PW1 was the conflict between the appellant and the deceased since the appellant forcibly wanted cattle from the deceased. Subsequently, the appellant was arraigned in the High Court on an information of murder and stood trial in which the above mentioned seven prosecution witnesses testified. To protest his innocence, the appellant stood himself as the lone defence witness and in his scanty oral sworn testimony he denied any involvement. He was duly convicted and accordingly sentenced to suffer death by hanging. In compliance with the requirement of section 265 of the Criminal Procedure Act, [Cap 20 R.E. 2002, now R.E. 2019] (CPA) the learned trial Judge sat with three assessors and at the conclusion of the case for the prosecution and the defence, the learned trial Judge summed-up the case to the assessors who then returned a unanimous verdict of guilty against the appellant. Siding with the assessors, the learned trial Judge found it proven upon the evidence of the prosecution witnesses that the appellant was responsible for the murder 3 of the deceased. Accordingly, he was convicted and sentenced as shown earlier. Initially, the appellant in an attempt to vindicate his innocence had lodged a memorandum of appeal containing eight (8) grounds of grievance. Nonetheless, before the appeal could commence in earnest Mr. Baraka Mbwilo, learned advocate for the appellant sought and was granted leave to abandon the memorandum of appeal earlier on lodged by the appellant and instead argue a single ground contained in the memorandum of appeal which was lodged in Court on 10.02.2022 which he prayed to adopt. The new ground of appeal which Mr. Mbwilo beseeched us to consider in lieu of the earlier ones was that: 'T h a t t h e Honourable tria l Judge o f the High Court erred in law by failure to follow proper procedure o f the law on participation o f assessors that is to say selection, giving the chance to the appellant to object or not to the presiding assessors, inform ing and explaining their roles and responsibilities and fin ally explaining to them on vital points o f law from the evidence on record. The failure rendered the whole proceedings a n u llity." 4 At the hearing of the appeal before us, Mr. Mbwilo, learned advocate represented the appellant as earlier on hinted. On the other hand, Ms. Safi Kashindi Amani, learned State Attorney, represented the respondent Republic. In his eloquent and focused submission in support of the appeal, Mr. Mbwilo faulted the learned trial Judge for not following the law in as far as involvement of the assessors is concern. It was his contention that, assessors were not properly selected in terms of section 283 of the CPA and referred us to page 51 of the record of appeal where names of assessors were merely listed without being procedurally selected. He further contended that the learned trial Judge did not afford any opportunity to the appellant to either object or not to the participation of any of the assessors who sat to assist the trial court in the determination of his case. In demonstrating the alleged omission, Mr. Mbwilo referred us to pages 51 and 52 of the record of appeal. Furthermore, Mr. Mbwilo faulted the learned trial Judge for not informing and explaining the roles and responsibilities to the assessors who sat to assist him in the determination of the case. For this proposition, he argued that, although this is not the requirement of the law but this Court has settled this matter and referred us to page 13 of the typed decision in Hilda Innocent v. Republic, Criminal Appeal No. 181 of 2017 and pages 8 to 9 of the typed decision in 5 Galula Nkuba @ Malago and Another v. DPP, Criminal Appeal No. 394 of 2018 (both unreported). Submitting on the propriety of the summing up to the assessors, Mr. Mbwilo argued that the learned trial Judge did not direct assessors on the vital points of law involved in the case. Elaborating further on this point, he contended that the learned trial Judge did not direct the assessors on essential points of law such as malice aforethought and overt act which are essential ingredients of the offence of murder as stated under sections 196 and 200 of the Penal Code and referred us to page 78 of the record of appeal. Similarly, he contended further that, circumstantial evidence was not explained to the assessors as to what is it and under what circumstances can the court convict based upon such evidence. Elaborating, he once again referred us to page 78 of the record of appeal. Mr. Mbwilo went further to fault the learned trial Judge for not directing the assessors on the issue of visual identification and circumstances upon which the court may convict. He argued that, this omission was done despite the fact that the learned trial Judge discussed at considerable length visual identification in convicting the appellant referring to pages 98 (a) to 109 of the record of appeal. He rounded up his submission by faulting the learned trial Judge for not directing assessors on the issue of corroboration. He cited pages 6 8 to 11 of the typed decision in Lazaro Katende v. DPP, Criminal Appeal No. 146 of 2018 and pages 8 and 9 of the typed decision in Daniel Ramadhan Mkilindi @ Abdallah @Dulla v. Republic, Criminal Appeal No. 16 of 2019 (both unreported). As regards to the way forward, Mr. Mbwilo urged us to exercise our revisional powers under section 4 (2) of the Appellate Jurisdiction Act, Cap 141 R.E 2019 (the AJA) to nullify the proceedings and judgment of the trial court, quash the conviction and set aside the sentence. He rounded up by contending that for the interest of justice and considering the evidence on record, the Court is invited to order a retrial. Replying, Ms. Amani informed us that she was supporting all that the counsel for the appellant submitted, including the way forward adding that this was a fit case for retrial considering the evidence on record. However, Ms. Amani argued further that the learned trial Judge committed irregularities by including in his summing up notes matters which were extraneous to the record of proceedings and did not originate from evidence of witnesses. Specifically, she faulted the learned trial Judge who included facts like the appellant was the last person to be seen with the deceased. We have examined the record of appeal in light of the learned submissions of the counsel and the authorities relied upon. In determining the 7 appeal, we propose to discuss it in a pattern preferred by counsel for the appellant while addressing all the infractions referred in his oral submission in support of the appeal. It is commonplace that all trials before the High Court must be conducted with the aid of assessors. The basic statute that guides the conduct of trials with the aid of assessors and the procedure to be followed is obtained in Part III of the CPA and more specifically sections, 265, 283 and 285 of the CPA. We think, we should first appreciate what these provisions of the law provide. Section 265 of the CPA provides: "A ll trials before the High Court sh all be with the aid o f assessors the number o f whom sh all be two or more as the court thinks f it " Furthermore, section 283 of the CPA which provides for the procedure after the plea of not guilty has been entered at the commencement of trial reads as follows: "Where the accused person pleads "not g u ilty" or if the plea o f "not g u ilty" is entered in accordance with the provisions o f section 281, the court shall proceed to choose assessors, as provided in section 285 and try the case." [Emphasis added] Similarly, section 285 which relates to selection of assessors reads: "(1) Where a tria l is to be held with the aid o f assessors, the assessors shall be selected by the court, (2) "[Emphasis added] Clearly, reading between lines the above provisions of the law, it is conspicuously clear that, all criminal trials before the High Court have to be with the aid of assessors and understandably, we emphasised this in the case of Iddi Muhidini @ Kabatamo v. Republic, Criminal Appeal No. 101 of 2008 (unreported). It is important to stress also that, where assessors are involved there are certain mandatory procedural requirements which must be strictly complied with in order to bring them on board. The first and foremost is selection of assessors in terms of section 285 (1) of the CPA where the trial court is obliged to indicate in the record that assessors were dully selected and in fact indicate their names as well. This is done immediately after the plea of not guilty in terms of section 283 of the CPA. Moreover, after selection of assessors in terms of section 285 (1) of the CPA, the trial court is obliged to give the accused an opportunity to say whether or not he/she has any objection to any of the assessors from participating in the trial before its commencement. This is a sound practice of fair trial and is 9 designed to ensure that the accused is fairly tried. Indeed, the Court has echoed this in the case of Tongeni Naata v. Republic [1991] TLR 54 that: "It is a sound practice and should be followed, to give an opportunity to an accused to object to any assessor. " Corresponding observations were made in the case of Laurent Salu & 5 Others v. Republic, Criminal Appeal No. 176 of 1993 (unreported) cited also in Abdallah Juma@ Bupale v. Republic, Criminal Appeal No.537 of 2017 (unreported), in which the Court observed that: "Adm ittedly the requirem ent to give the accused the opportunity to say whether he has objection to any o f the assessors is not a rule o f law. It is a rule o fpractice which, however, is now w ell established and accepted as p art o f the procedure o f crim inal ju stice in the country...the rule is designed to ensure that the accused person has a fa ir tria l and to make the accused have confidence that he is having a fa ir trial, it is o f vital im portance that he be inform ed o f the existence o f this rig h t The duty to inform him is on the tria l judge, but if the judge overlooks this, counsel who are officers o f the court have equally a duty to rem ind him o fit " See also, Ndiragu Nyagu v. Republic [1959] E.A 75. 10 Equally, the court is duty bound to inform and explain to the assessors their roles and responsibilities in the conduct of the trial. Mr. Mbwilo argued and properly so, that this is not a requirement of the law. However, there is a litany of cases where this Court has emphasised the need to inform and explain to the assessors their roles and responsibilities expected of them in the trial ahead. See, for example, Hilda Innocent (supra), Abdallah Juma@ Bupale (supra). In the case of Hilda Innocent the Court observed that: 1W e go further and observe that it is equally im portant that although inform ing assessors on their role and responsibility is a rule o f practice and not a rule o f law, as it is fo r a long tim e an established and accepted practice in order to ensure their m eaningful participation , a tria l judge m ust perform this task im m ediately after ascertaining that there is no any objection against any o f the assessors by the accused before commencing the tria l." Certainly, having careful examined the position of the law as well as the considerable body of case laws on the infractions complained of by Mr. Mbwilo, admittedly, the trial Judge did not follow the law in as far as involvement of assessors was concerned. We wish to let record of appeal, at pages 51 and 52 speak for itself: "Date: 4.06.2018 li Coram: Hon. Dr. A.J. Mambi, J. For Republic: Simon Peres, State Attorney For Accused: Budodi, Adv Accused: Present Interpreter: Mr. A. Chitimbwa, English into Kisw ahiii and vice versa. Inform ation is read over and properly explained to the accused person in Kisw ahiii language as follows. Assessors 1. Salom e Kapeie 2. Biandina Walinguzo 3. Ibrahim Makia Prosecution: -My Lord I am Scolastica Lugongo for the Republic. We also have Mr. Kampakasa fo r the defence. My Lord we have four witnesses and we are ready. Defence:- We are ready. Court: - The accused is rem inded his charges on m urder and he pleads as follow s: Accused: - Siyo Kw eli (NOT TRUE) Court: Enters (sic) Piea o f Not G uilty to the accused (sic) S g d D r . AJ.Mambi Judge Prosecution: We pray to ca ll the first witness. Court: The first prosecution witness (PW1) is called to testify." Clearly, from the above excerpt, when the trial commenced on 4.06.2018 the learned trial Judge did not follow the law in involving the assessors in that 12 assessors were not properly selected in terms of sections 283 and 285 of the CPA instead assessors were merely listed in the coram. Furthermore, the learned trial Judge did not ask the appellant whether he had any objection to any of the assessors from participating in the trial before commencement of the trial contrary to conventional wisdom in the spirit of fair trial to the appellant. Moreover, the learned trial Judge did not inform and explain to the assessors their roles and responsibilities in the conduct of the trial contrary to the established sound practice. As to the cumulative effect of the above infractions and the way forward we wish to pause here for now, and, we shall at a later stage of our judgment, revert to this disquieting aspect of the proceedings to determine its consequences. Coming to the final issue which was argued by Mr. Mbwilo and admitted by Ms. Amani in relation to the irregular summing up by the learned trial Judge, we are enjoined to interrogate and determine whether the summing up was, indeed, irregular and, if so, whether it vitiated the trial. At the outset, we wish to reaffirm the time-honored requirement under section 265 of the CPA that all criminal trials before the High Court must be conducted with the aid of at least two assessors. In addition, a trial Judge sitting with assessors is required by section 298 (1) of the CPA to sum up the 13 case to the assessors before inviting them to give their opinion. Section 298 (1) of the CPA provides that: "When the case on both sides is dosed, the judge may sum up the evidence for the prosecution and the defence and sh all then require each o f the assessors to state his opinion orally as to the case generally and as to any specific question o f fact addressed to him by the judge, and record the opinion. "[Emphasis added] The above provision has been interpreted in such a way that, although the word "may" in ordinary usage connotes discretion, but in this context, it has been interpreted as imposing a mandatory requirement on the trial Judge to sum up the evidence. Indeed, the Court echoed that position in Mulokozi Anatory v. Republic, Criminal Appeal No. 124 of 2014 (unreported) where it stated: "We wish first to say in passing that though the word 'm ay' is used im plying that it is not m andatory fo r the tria ljudge to sum up the case to the assessors but as a matter of long established practice and to give effect to s.265 of the Criminal Procedure Act that a ll trials before the High Court shall be with the aid o f assessors, the tria l judge sitting with assessors have invariably been summing up cases to the assessors." [Emphasis added] When summing up, the learned trial Judge is duty bound to explain all the vital points of law relevant to the case. There is a long and an unbroken chain of authorities stressing the importance and duty imposed on trial High Court Judges who sit with the aid of assessors, to sum up adequately to those assessors. See, for example, Omari Khalfan v. Republic, Criminal Appeal No. 107 of 2015, Said Mshangama @ Senga v. Republic, Criminal Appeal No. 8 of 2014, Masolwa Samwel v. Republic, Criminal Appeal No. 206 of 2016 (all unreported) and Lazaro Katende (supra). In the case of Omari Khalfan (supra) the Court faced with akin situation reiterated the importance of summing up to assessors underscored in the defunct Court of Appeal for Eastern Africa in Washington s/o Odindo v. R [1954] 21 EACA 392 thus: "The opinions o f the assessors can be o f great value and assistance to the tria l judge but only if they fu lly understand the facts o f the case before them in relation to the relevant law . " Admittedly, there is no exhaustive list of what are the vital points of the law which the trial High Court should address to the assessors and take into account when considering their respective judgments. In the case of John Mlay v. Republic, Criminal Appeal No. 216 of 2007 (unreported), the Court underscored what should be considered in a proper summing up, that is to say: 15 "All essential elem ents/ingredients in a case, burden o f proo f and the duty o f the prosecution to prove the case beyond reasonable doubt■ elaboration on the cause o f death, m alice aforethought and main issues in the case including, but not lim ited to the nature o f the evidence, credibility o f witnesses etc." In the instant case, we subscribe to the concurrent submission by the learned counsel that the learned trial Judge's summing to the assessors was clearly irregular. First and foremost, it is evident from summing up notes that the learned trial judge did not address assessors on vital points such as malice aforethought and overt act despite the fact that they were mentioned at page 78 of the record of appeal as being some basic legal principles governing criminal law. Similarly, circumstantial evidence was mentioned at page 78 of the record of appeal but unfortunately, the learned trial Judge did not address the assessors as to what that concept entails and under what circumstances can the court convict based upon such evidence. Despite not doing so, the learned trial Judge addressed in detail in his judgment as he must have. Also, the issue of visual identification and the circumstances upon which the court may convict based upon visual identification was not addressed to the assessors but surprisingly, the learned trial Judge addressed it at considerable length in his judgment from pages 99 to 108 of the record of appeal and in fact the conviction was mainly based on visual identification of PW1 and PW2. 16 We note from pages 84 to 85 of the record of appeal that the assessors unanimously returned the verdict of guilty against the appellant but none of them was able to say if the killing was with malice aforethought. In view of the non-directions committed in the summing up canvassed above, we are constrained by the law to hold that the appellant's trial was unfair because it cannot be said to be one conducted with the aid of assessors as envisaged under section 265 of the CPA. The totality of the above infractions both in relation to the involvement of assessors and the irregular summing up makes the trial of the appellant a nullity. Before we take leave, and in view of our conclusion above, it is instructive to interject a remark, by way of a postscript without going into much details that the trial Judge's summing up to assessors and the judgment contains matters beyond what witnesses actually testified on as rightly submitted by Ms. Amani. This is evident across the summing up notes and judgment. This malpractice is abhorred and the Court has in numerous occasions warned trial courts not to include in their summing up notes and judgments, facts which are not reflected in the recorded evidence in the proceedings. See, for example, Athanas Julias v. Republic, Criminal Appeal No. 498 of 2015 and Shija Sosoma v. DPP, Criminal Appeal No. 327 of 2017 (both unreported). We think, this sufficiently suffices to remind trial courts once again. 17 For these reasons, we invoke the provision of section 4(2) of the AJA and nullify all the proceedings and judgments from the stage of when the trial commenced, quash conviction and set aside the sentence of death that was meted upon the appellant. For avoidance of doubt, the Preliminary Hearing shall not be affected by this decision. We further order that, meanwhile the appellant shall remain in custody to wait for the said retrial. DATED at MBEYA this 17th day of February, 2022. R. K. MKUYE JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL The Judgment delivered this 17th day of February, 2022 in presence of the appellant in person, represented by Mr. Baraka Mbwilo, learned advocate and Ms. Irene Mwambeza, learned State Attorney for the respondent/Republic is hereby certified as a true copy of the original. 18