EMMANUEL BARAKANFITIYE ANOTHER VS THE REPUBLIC CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MUGASHA, 3.A., MWAMPASHI. 3.A. And NGWEMBE. J.A.^ CRIMINAL APPEAL NO. 385 OF 2023 EMMANUEL BARAKANFITIYE....................................... 1st APPELLANT JACKSON EMMANUEL................................................. 2nd APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, at Bukoba) (Ngigwjinji, J.) dated the 7th day of June, 2021 in Criminal Session Case No. 67 of 2021 JUDGMENT OF THE COURT 12th & 14th March, 2025 MUGASHA, J.A.: Emmanuel Barakanfitiye and Jackson Emmanuel, the 1st and 2nd appellants respectively, were jointly and together charged with the offence of murder contrary to sections 196 and 197 of the Penal Code Cap 16 R: E 2002, Now R: E 2022. It was alleged by the prosecution that on the 13/5/2020, at Kalundi 'A' Mwanga village within Biharamulo District in i Kagera Region, the appellants murdered one Mariana d/o Matabaro. They all denied the accusations levelled by the prosecution. This was followed by a full trial whereby the prosecution paraded six witnesses and tendered three exhibits. The defence had three witnesses including the appellants. However, in view of what is to unfold in due course, we shall not give a factual account underlying arraignment and conviction of the appellants. It suffices to point out that at the end of the trial, the appellants were convicted as charged. Whereas the 1st appellant was sentenced to death by hanging, the 2nd appellant who happened to be a minor was sentenced to serve a jail term at the pleasure of the President. It is against the said backdrop, the appellant have preferred this appeal seeking to impugn the decision of the trial court. Initially, the appellants fronted a total of ten grounds of appeal in the joint memoranda of appeal that is, the Memorandum of Appeal and a Supplementary Memorandum. However, before the commencement of the hearing of the appeal nine grounds were abandoned and the remaining sole ground is as hereunder: 1. That the trial court erred in law in denying the appellants who have a conflict of interests a fair trial, causing a failure of justice. At the hearing, the appellants were represented by Mr. Joseph Bitakwate, learned counsel whereas the respondent Republic had the services of Ms. Ajuaye Bilishanga, learned Principal State Attorney assisted by Ms. Chema Maswi, learned Senior State Attorney and Mr. Dickson Makoro, learned State Attorney. In addressing the sole ground of appeal, Mr. Bitakwate faulted the trial court for not according the 2nd appellant a fair trial which occasioned a failure of justice on his part. He pointed out that, whereas the 1st appellant in the confessional statement stated that he collaborated with the 2nd appellant to accomplish the killing mission, the 2nd appellant at the trial within trial was not accorded the right to ask questions or make a cross- examination in respect of the statement implicating him on the killing incident. He added that, since it is the confessional statement which was the basis of the trial Judge's conclusion that common intention to accomplish the killing incident was formed and proved, the trial was not fairly conducted and the 2nd appellant was prejudiced as he was neither 3 availed effective representation nor accorded the right to be fully heard as envisaged under article 13 (6) of the Constitution of the United Republic of Tanzania, 1977. To support his contention the appellant's counsel cited to us cases of ELIAS MWAITAMBILA AND TWO OTHERS VS REPUBLIC, Criminal Appeal No. 414 of 2013 and MUGISHA KATULEBE VS REPUBLIC, Criminal Appeal No. 76 of 2022 (both unreported).With the said submission, Mr. Bitakwate urged us to nullify the trial proceedings and judgment, quash and set aside the conviction and sentence meted on the appellants, set them at liberty because on the record, there is no watertight prosecution account to sustain or warrant the conviction of the appellants. On the other hand, the appeal was opposed by the respondent Republic. Ms. Maswi who addressed us on appeal argued that, the appellants were all accorded a fair trial. Making reference to the confessional statement of the 1st appellant, she was of the view that, since the role played by the 2nd appellant was merely to open the door of the deceased's homestead, such act had no nexus with the killing incident. On the way forward, the learned counsel implored us to determine the appeal 4 and proceed to dismiss it because the charge was proved to the hilt against the appellants. Upon a careful scrutiny of the record before us, the ground of complaint and the rival submissions of learned counsel for either party, we are called upon to determine if the 2nd appellant was fairly tried. The learned counsel locked horns on the issue. As earlier intimated, while the appellants' counsel was of the view that, the 2nd appellant was denied a fair trial, Ms. Maswi held the opposite view that none of the appellants was denied a fair trial. At the outset we restate that, a right to fair trial is a fundamental right embraced under article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977. This entails, when the rights and duties of any person are being determined by the court or by any other agency, that person shall be entitled to be fully heard, to the right of appeal and to be effectively represented by an advocate before a court of law. Thus, if a person is not accorded a fair trial, the respective trial and the resulting judgment can be annulled by the upper court. 5 In the present matter, it is not in dispute that the conviction of the appellants was inter alia based on the confessional statement of the 1st appellant exhibited as P3 after being cleared in a trial within trial. The respective statement is reflected at page 84 of the record of appeal which in part, reads as follows: "Nakumbuka tarehe 01/07/2020 majira ya saa 17:20 hrs huko Rwamgasa Kataro Geita nikiwa ndani ya hifadhi ya pori hi/o Miima wa tisa (9) niiikamatwa na askari poiisi pamoja na askari mgambo kwa kushirikiana na shemeji yangu aitwaye Yohana s/o John na baada ya kunikamata askari hao waiiotoka Biharamuio waiinihoji kuhusiana na tuhuma za mauaji ya mama yangu Mariana Matabaro na mimi ninakiri kuhusika na mauaji hayo ya kuua mama yangu kwa kumkatakata mapanga sehemu ya kichwani, upande wa sikio ia kuiia na kidoie gumba cha mkono wa kuiia na panga hiio niiiiitupa maporini nami niiishirikiana na Jackson Emmanuel ambaye yeye aiienda kumgongea. Mambo Barakanfitiye ndiye aiitaka kuwa na juhudi za kumuokoa mama iakini aiipigwa jiwe kifuani.... tuiiondoka na baadaye tuiirudi Hi 6 kuhakikisha kama amekufa kweli na wakati huo Mambo Barakanfitiye alikuwa pembeni, hakuweza kufanya chochote kwa kuwa tayari alikuwa tayari ameshapigwa jiwe la kifuani akaogopa kutusoge/ea. Mimi nimeamua kumuua mama yangu Mariana Matabarn kwa sababu ya ardhi na pia ugomvi wa mara kwa mara na watoto wangu ambao ni Deous Emmanuel na Jackson Emmanuel. " In the bolded expressions, besides, the 1st appellant confessing to have killed his mother, it is shown that it is the 2nd appellant who knocked the door of the deceased who was thereafter hacked to death. It is glaring that the cautioned statement of the 1st appellant incriminated the 2nd appellant. Apparently, the 1st appellant retracted his confessional statement which necessitated a trial within trial whereby after PW1 F 5433 D/CPL Pastory adduced evidence that the confessional statement was legally procured, the sole defence counsel for the appellants did not raise any question thereto. However, the 2nd appellant whose interests were affected of the injurious assertion was not availed opportunity to put questions to such witness in respect of the confessional statement. This militated against the rule of natural justice because the 2nd appellant was not heard before the admission of a statement. We think, such a situation was 7 prompted by the representation of the appellants by a sole defence counsel thus raising a serious conflict of interest which could only be remedied by availing each appellant with own defence counsel. But this was not the case. Faced with an akin situation, the Court in the case of ELIAS MWAITAMBILA AND THREE OTHERS VS REPUBLIC (supra) it was held thus: "So, it was not practicable for all accused persons to be effectively represented by one counsel. In such situation, the best the trial court could have done was to adjourn the trial so that each accused could get a different counsel to realise their right to effective legal representation. Finally as the appellants did not get the benefit o f a fair trial the trail was annulled with an order that it be tried de novo". In the matter under scrutiny, it is evident that before the trial court, the 1st appellant's cautioned statement which was exhibited in evidence contained incriminating evidence against the 2nd appellant and it was the basis upon which his conviction was founded after the learned trial Judge concluded that, both appellants had formed a common intention to prosecute the killing of the deceased. Thus, on account of such glaring conflict of interest, the effective representation of the two appellants by one defence counsel was impracticable and it occasioned a failure of justice as the 2nd appellant was not availed a fair trial envisaged under article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977. This was emphasized in the case of MUGISHA KATULEBE VS REPUBLIC (supra), where the Court faced with a similar scenario held thus: "...In cases involving more than one accused person with conflicting interests and given that each accused is entitled to be fairly tried, effective representation is pertinent and it can only be attained if each accused is assigned a separate advocate. In the matter under scrutiny, given the apparent conflict o f interest between the appellant and co­ accused, the effective representation o f the accused before the trial court was not possible with a sole defence counsel representing all accused persons". Therefore, in view of what we have endeavoured to discuss, we agree with the Mr. Bitakwate that the entire trial was vitiated because the 2nd appellant was not fairly tried which occasioned a failure of justice. This can be remedied in a retrial which is in our considered view, the best 9 option given the circumstances of this case. Consequently, we allow the appeal, nullify the trial proceedings and the resulting judgment, quash and set aside the conviction and sentence meted on the appellants. It is further directed that, the information of the charged offence of murder be placed before another Judge for expedited plea taking, preliminary hearing and the trial. The Registrar should assign an advocate for each accused person and meanwhile the appellants should remain in custody. It is so ordered. DATED at BUKOBA this 14th day of March, 2025. S. E. A. MUGASHA JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 14th day of March, 2025 in presence of both Appellants in person and Mr. Dickson E. Makoro, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.