the republic vs samwel mgomelwa 2 petro 8 others 2023 tzhc 22641 15 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI CRIMINAL SESSIONS CASE No. 47 OF 2021 REPUBLIC VERSUS SAMWEL MGOMELWA @ PETRO................................................ 1st ACCUSED RAMADHANIIDD @ BA KA RI..................................................... 2nd ACCUSED MANDA ULINJE @MOMBO......................................................... 3rd ACCUSED AMINI MASILIMU @ ZABLONI.................................................. 4th ACCUSED GEORGE KAONWA @ MTANGWA................................................ 5th ACCUSED YASINI ALLY @ ISSA................................................................ 6th ACCUSED LAMECK PAULO @ MTUKO......................................................... 7th ACCUSED ELIA LENDAMA................... 8™ ACCUSED ANDASON CHUYO @ LUBEREJE................................................. 9th ACCUSED RULING 15th November, 2023 BARTH Y, J: This ruling follows the arguments that arose during the trial when the prosecution lodged a notice to call additional witnesses under section 289(1) of the Criminal Procedure Act, Cap 20 R.E. 2022 (referred to as the CPA). 1 Arguing for consideration of tnis court to grant their notice, Ms. Rose Kayumbo, the learned state attorney, argued that their notice was lodged on 14/11/2023 and duly served to the defence side. It was also her argument that the reason for lodging the notice was due to the fact that the intended witness for the prosecution side, Anneth Mshendwa, was not named as the prosecution witness. It was stated, the prosecution side intends to tender the caution statement of the fourth accused person, Amini Maslimu, as the exhibit of the case. As there is no other witness to tender the same than the witness they sought to add. Further to that, it was stated the extra judicial statement of Amini Maslimu was read out during the committal proceedings to have confessed to the commission of crime. It was her further submission that, the defence side would not be prejudiced with the witness they intend to add, as the extra judicial statement was already supplied with records of committal proceedings. However, the witness they intend to call did not record her statement at the police station, but the notice filed has complied with the requirement to state the substance of the intended exhibit, as it was 2 read out before the committal court. Thus, she was firm that the provision of section 289(1) of CPA was complied with. Essentially, the said notice was objected by all defence counsels stating the following reasons. 1. The defence side was surprised with the notice which was not served within reasonable time in accordance with section 289(3) of CPA. 2. The statement of the person intended to be added as a witness was not read out during the committal proceeding. 3. The statement read out at committal proceedings on page 21 shows it was for the third accused person and not for Amini Maslimu, who is the fourth accused person. 4. The statement of the witness intended to be added was never recorded at the police station. 5. The notice is an afterthought as it was not made dear as to when the fact was discovered to necessitate the witness being added. 3 It was therefore the argument of all defence counsels that there was the non-compliance with the provision of the law, and the notice should not be granted for the interest of justice, as it will prejudice the accused persons. Rejoining on the arguments made by the defense side, Ms. Kayumbo maintained her arguments made in her submission in chief, further stating that the notice is proper before this court and has complied with the law. As the provision of section 289(1) did not prescribe the time to give the notice. She further rejoined that, having the records of the committal proceedings states the extra judicial statement that will be tendered it is for third accused person without referring to his name. She contended that, the error was just the slip of the pen, as there was no other extra judicial statement referred to, but for the fourth accused Amini Maslimu and not for Manda Ulinje the third accused person who was never taken to the justice of peace. Again, on the objection that the prosecution did not disclose as to when they became acquainted with the knowledge and sought to call an additional witness, she recounted that the fact was known to them on 14/11/2023 when they filed the notice. 4 To conclude, she invited this court to be guided with the case of Masamba Musiba @Musiba Masai Masamba v. Republic, Criminal Appeal No. 138 of 2019 [2021] TZCA 2070. She therefore prayed for their notice be granted by this court. This court, having heard the opposing arguments of both sides, before tackling the objections raised, I will state in the outset that the objections need to be on the point of law and not the point of fact. As decided in the case of Mukisa Biscuit Co. Ltd v. West End Distributors Ltd, it was clearly held that a preliminary objection has to be on a pure point of law and not one that can be ascertained from facts. A similar position was emphasized by the Court of Appeal in the case of The Soitsambu Village Council v. Tanzania Breweries Ltd and Tanzania Conservation Ltd, Civil Appeal No. 105 of 2011 (Unreported). Therefore, with regard to the objections raised, I will start my deliberation with the objections that the statement of the person intended to be added as a witness was not read out or listed at the committal proceeding. With regard to this objection, there was an agreement from both sides that the statement of Anneth Mshendwa, whom the prosecution 5 side had intended to add as the prosecution witness, was never read out during the committal proceeding, as it was never recorded at the police station which is in contravention with the requirement of section 246(2) of CPA. In the case of Hamisi Meure v. Republic [1993] TLR 213 the court held that, allowing the evidence of justice of peace to be used at the trial when his statement was not read at the committal proceeding and no notice had been given was fatal. In this case, the statement of the witness intended to be added was never read out at the committal proceedings. Also, Anneth Mshendwa was not among the witnesses the prosecution had intended to call, as she was not mentioned during committal proceedings. In the case of Ester Jofrey Lyimo v. Republic, Criminal Appeal No. 123 of 2020 [2022] TZCA 197 the court was tasked with similar situation. Then it came to the findings that, the substance of such evidence was availed through other listed evidence. Also, in the case Of Mussa Ramadhani Maqae v. Republic, Criminal Appeal No. 545 of 2021 TZCA [2023] 181 the Court of Appeal considered the evidence of the witness for the prosecution side, which was not listed or read out at the committal proceeding to be fatal. 6 In the present matter, the record of committal proceedings does not clearly show the extra judicial statement of Amini Maslimu was read out, despite the fact that the same has been attached to the record. It is now an established principle that the records of the trial tribunal/court should always speak for themselves. The emphasis was made by the Court of Appeal in the case of Attu J. Myne v. CFAO Motors Tanzania Ltd, Civil Appeal No. 269 of 2021 at Dar es salaam. To consider that the substance of the extra judicial statement was read out at the committal proceedings without the record speaking for itself will prejudice the defence side. The claim of slip of pen which led to the errors on the face of records indicating extra judicial statement of third accused will be tendered, but it implied it was for the fourth accused person. If there was any clerical error it was to be rectified by the court that conducted the committal proceedings by way of review. To assume otherwise at this stage, it will be at the detriment of the defence side. These grounds alone are sufficient to find that the notice to call the additional witness for the prosecution is not sufficient, as the extra judicial confession of Amini Maslimu was not clearly listed or mentioned at the committal proceedings of the lower court. Also, there was no 7 statement of Aneth Mshendwa listed or read out during the committal proceeding to justify the substance. For the reasons stated, the notice to call additional witness is not granted. It is so ordered. Dated at Babati this 15th of November, 2023. JUDGE 8