CamScanner 05 02 2024 14

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI (CORAM; WAMDALI. 3.A.. KITUSL J.A. And NGWEMBE, J.A.) CRIMINAL APPEAL NO. 455 OF 2020 IBRAHIM S/O JUMA MBWAMBO............................................... APPELLANT VERSUS THE REPUBLIC.....................................................................RESPONDENT (Appeal from the decision of the Resident Magistrates' Court of Moshi at Moshi) (Massati - SRM EXT.JUR^ dated the 26th day of August, 2020 in Ext. Jur Criminal Sessions Case No. 4 of 2020 JUDGMENT OF THE COURT 22nd April, & 2nd May, 2024 KITUSL J.A.: The appellant Ibrahim Juma Mbwambo together with two others were jointly charged with the murder of one Niwael Sadita Mndimi. The prosecution led evidence to prove that the three culprits jointly and unlawfully caused the deceased's death. It was alleged that on 2/2/2018 a herd boy known as Hemed Juma stumbled on the body of the deceased buried within the area where he had been grazing his stock. He ran to the police station and reported his discovery to ASP Samwel Malmu (PW1), a police officer. Meanwhile, PW3 stated that he got to know that somebody was in possession of the deceased's telephone line and was using it to demand money from her relatives. PW3 testified that he obtained a print out from Tigo telephone company which assisted him to establish that it was the appellant who was using the deceased's phone to solicit for money. So, PW3 arrested the appellant at Ndungu village and interrogated him, in the course of which he confessed to have murdered the deceased, disclosed where he had kept the telephone and implicated the other culprits, who were later acquitted. The accused persons disputed the allegations and gave evidence aimed at exonerating themselves, but at the end of it all, the assessors who took part in the trial returned a verdict of guilty against the appellant, who was accordingly convicted by the trial court, Massati, SRM with Extended Jurisdiction. He was sentenced to death, while the other two were acquitted, as already alluded to above. Aggrieved by the conviction and sentence, the appellant has preferred this appeal. He had earlier raised 12 grounds of appeal in the original memorandum of appeal, and subsequently two supplementary 2 grounds to make a total of 14 grounds of appeal, all challenging the merits of the decision of the learned SRM with Extended Jurisdiction. That v/as not enough, as two more grounds were belatedly raised as supplementary memorandum of appeal to challenge the propriety of the proceedings before the trial court. We would therefore be required to deal with 16 grounds of appeal, drawn by a lay hand and not easily comprehensible. However, Mr. Patrick Paul, learned advocate who represented the appellant, made our life easy by reducing those grounds into four areas of complaint. The first area, which we must determine at the earliest, attacks the decision of the trial court for having proceeded from proceedings which were presided over by an improperly constituted court. The thrust of Mr. Paul's argument in relation to that ground of appeal is that sometime during the hearing which was conducted with the aid of three assessors, one of those assessors fell ill. Thereupon the learned SRM whith Extended jurisdiction proceeded with the remaining two assessors observing that, she was mandated by the law to do so. We agree with the course taken by the trial SRM with Extended jurisdiction, because it was both prudent to do so and also permissible by section 286 of the Criminal Procedure Act, (CPA). Mr. Paul submitted, and we respectfully agree with him, that when the trial court allowed that assessor to join back in the proceedings later, it committed an error which vitiated those proceedings. It is our finding that by doing what it did, the trial court wrongly invited that assessor to participate in the decision of the case part of which, he had not had the benefit of hearing witnesses testify on. Section 286 of the CPA which gave the learned magistrate the power to proceed with the remaining two assessors, does not envisage the indulgence of resummoning the assessor as did the learned trial magistrate. It provides: - "286 Where in the course of trial with the aid of assessors but at any time before they state their opinions, any assessors is from any sufficient cause, prevented from attending throughout the trial or absents himself and it is not practicable immediately to enforce his attendance, the trial shall proceed before the remaining assessors but if only they are not less than two in number, and where the trial so proceeds, the remaining assessors shall be deemed in all respects to be properly constituted for the purpose o f the trial and shall have power to return a verdict accordingly whether unanimous or by majority." Ms. Grace Madikenya, learned State Attorney who represented the respondent Republic assisted by Mr. Phllbert Mashurano, also learned State Attorney, was at one with Mr. Paul on the incompetence of the proceedings that led to the impugned judgment. On the basis of this correct position taken by the learned counsel showing a clear violation of section 286 of the CPA, we allow the ground of appeal challenging the competence of the proceedings. Accordingly, we nullify the proceedings for the irregular involvement of the assessor whose participation had earlier been dispensed with. It is common course that when proceedings are nullified on account of such procedural irregularity as pointed out above, the court may order a retrial where it considers appropriate so to do. As settled in the case of Fatehali Manji v. Republic [1966] 1 EA 343, there are circumstances under which such an order may not be made, such as when, for instance, an order of retrial would serve no useful purpose owing to the prosecution evidence being insufficient to ground a conviction, or where such an order may provide the prosecution with an opportunity to cure identified errors or loopholes in the prosecution case, to the prejudice of the appellant. In line with the above settled principle, Mr. Paul submitted that in this case, there are procedural and evidential shortcomings in the trial proceedings, which militate against ordering a retrial. These shortcomings which constitute the other areas of complaint are; improper admission of exhibits, failure to consider defence case and lastly that the case was not proved against the appellant, beyond reasonable doubts. These complaints are raised in the grounds of appeal as it shall be demonstrated in due course. Submitting on ground 4 of the original memorandum of appeal, the learned advocate cited, for instance, the fact that the evidence of DC Richard (PW2) should not have been recorded because he was not listed, and the substance of his evidence not read over, during the committal proceedings. He made the same attack in relation to Dr. Samwel Amos Memba (PW5), the medical doctor who performed the post-mortem, submitting that his evidence was also wrongly received because the statement of that witness was not read out during the committal proceedings as per section 246 (2) of the CPA, nor was his name listed. The learned advocate raised a similar argument in respect of exhibit P2, a bag in which there were said to be mobile phones implicating the appellant. He moved for an order of expungement of the evidence of PW2, PW5 and exhibit P2. Ms. Madikenya for the respondent Republic had no qualm, once again as she agreed with Mr. Paul. It is an established principle under section 246 (2) of the CPA, obviously in keeping with rules of fair hearing, that the substance of documents and the statements of witnesses intended to be used by the prosecution against the accused, must be disclosed by the prosecution at the time of committal proceedings. If not so disclosed in compliance with section 246 (2) of the CPA, such evidence may not be tendered during the hearing. [See the case of Michael Maige v. Republic, (Criminal Appeal No. 222 of 2020) [2023] TZCA 54 (24th February, 2023, TANZLII) among many. For that reason, and since it is conceded that the prosecution did not make use of section 289 of the CPA which would have otherwise made it possible for them to apply for calling additional witness, we expunge the evidence of PW2, PW5 and that of Exhibit P2. The exclusion of that evidence leaves the prosecution case much the poorer, because in effect, it means there is no proof of the cause of death and also that the mobile phone and telephone chip which are part of Exhibit P2 tendered by PW2, and which would probably link the appellant to the commission of the murder, is not there anymore. Several other evidential shortcomings were raised by the appellant. The prosecution's failure to produce the telephone print outs was raised under the 6th ground of the original memorandum of appeal. The question of the identity of the body of the deceased was raised by the appellant in grounds 1, 2 and 3 of the original memorandum of appeal and has not been surmounted because no relative came forward to Identify the kitenge clothe as an uncommon Item that It would be said could not belong to anybody other than the deceased. For no known reason, the herd boy who discovered the body did not feature as a witness either. Mr. Paul alluded to more ailments which were also conceded to by Ms. Madikenya. These include contradictions between the cautioned statement and the search and seizure certificate, as well as the fact that the chain of custody of Exhibit P2 was not established. Since Exhibit P2 has already been expunged, we need not discuss the issue of chain of its custody, but we are satisfied that the other infractions that have been pointed out by the learned counsel and conceded to by Ms. Madikenya render the case for the prosecution too weak to sustain a conviction in the event of a retrial. If we pick but one example to demonstrate the irony in the evidence, the cautioned statement in which the appellant allegedly disclosed the location of the bag containing the implicating telephones, and that the search was prompted by it, was made on 6/3/2018 while search was made on 5/3/2018. That sequencing of events raises eyebrows, in our view, and we would accordingly refrain from ordering a retrial, lest the prosecution seize that opportunity to cure the anomaly. 8 From our discussion above, having nullified the proceedings of the trial court for the improper involvement of the assessor whose participation had earlier been dispensed with, we allow that ground of appeal. However, for the reason that the prosecution case has other procedural and evidential shortcomings raised in the second, third and fourth grounds of appeal, we do not order a retrial but direct the appellant's immediate release from prison if his incarceration is not otherwise lawful. DATED at MOSHI this 30th day of April, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 2ndday of May, 2024 in the presence of the Appellant in person and Mr. Mashurano Philbert, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. j T e T fovo DEPUTY REGISTRAR V COURT OF APPEAL