masao jumanne vs republic 2024 tzca 1 2 january 2024

IN THE COURT OF APPEAL OF TANZANIA AT POPOMA (CORAM: LILA, J.A.. MWAMPASHI, J.A. And MURUKE. J.A.^ CRIMINAL APPEAL NO. 268 OF 2021 MASAO JUMANNE.,................... ..... ....................... .....................APPELLANT VERSUS THE REPUBLIC.................................. ........................................ RESPONPENT (Appeal from the Judgment of the High Court of Tanzania at Dodoma) (MansoonJ.) dated the 18thday of March, 2021 in Criminal Sessions Case No. 51 of 2019 JUDGMENT OF THE COURT 6th December, 2023 & 2nd January, 2024 MURUKE. J. A: The appellant, Masao Jumanne was charged with and convicted of the offence of murder contrary to section 196 and 197 of the Penal Code [Cap 16 R.E. 2002, now R.E. 2022], in Criminal Sessions Case No. 51 of 2019, before the High Court of Tanzania sitting at Dodoma (the trial court). It was alleged that on 31st day of December, 2016, at Bahi Village within Bahi District, Dodoma Region, the appellant murdered one Shauri Samweli (the deceased). The appellant denied the charge levelled against him and therefore, the case had to proceed to a full trial. The prosecution case was i built on evidence adduced by six witnesses, supported by two documentary exhibits, namely the Post Mortem Examination Report, (exhibit PI) and the sketch map of the scene of the crime (exhibit P2). On his side, the appellant testified atone, as he did not summon any witness. In essence the prosecution case, as obtained from the record of appeal reveals that, the appellant Masao Jumanne was married to PW1, Maria Thomas. The two were married in 2003. They were biessed with three children, Ludoviko Masao (PW4) Mariana Masao (PW3), and Pelagia Masao. The marriage between the parties, for whatever be the reasons, was broken down and the parties could no longer live together as husband and wife. This is what was testified by both the wife who testified as PW1, and the appellant who in his defence acknowledged that the marriage between them had broken down. After the marriage was dissoived, Maria Thomas, (PW1) moved to another home with her children. She then found another man, Shauri Samweli, the deceased. PW1 complained about the extreme cruel nature of his ex-husband, the appellant herein, who used to go to her house at night while drunk and would abuse her with abusive words and threaten her. The extreme cruelty made the life of Maria Thomas miserable; she reported the cruelty and abuse of her ex-husband to the village leaders and even to police, but they would do nothing to stop him. On the fateful day, that is, on 31st December, 2016, Masao Jumanne (the appellant) went to Maria Thomas's house. It was at 21:00 hours. He was armed with a machete. The children of Maria Thomas including Ludoviko Masao (PW4), and Mariana Masao (PW3) were playing outside the house while PW1 was cooking in the kitchen. The kitchen was inside the house and she was using firewood for cooking. The appellant went to the house and knocked, he said "hodi". The children of Maria Thomas, that is, Ludoviko (PW4) and Mariana (PW3) told their mother that there was someone knocking. PW1 went to the door, and suddenly the appellant started smashing her with the machete. The appellant cut PW1 on her fingers of the right hand, her hand, and two blows on her face. She was bleeding but managed to escape. She went straight to the Ten Cell Leader Cosmas Joseph and immediately after reaching the Ten Cell Leader house she fell and fainted. In PWl's house, at the material time, there was Shauri Samweli (deceased), who was sleeping at the sitting room. The appellant entered in the room and slashed Shauri Samweli with a machete on the right shoulder near the neck. He then pulled him towards the door and slashed him again on the head and at the back. While attacking his ex-wife and the deceased, his children, that is, Mariana (PW3) and Ludoviko (PW4) were there, they saw him attacking their mother and their step father or uncle. After the attacks, the appellant left the scene, leaving his children with the dead body of Shauri Samweli, PW1 was rushed to hospital unconscious. When she regained consciousness on 1st January, 2017 in the morning, she told the Village Chairman one Victoria Samweli (PW2) that they should go home to check if her children and Shauri Samweli were safe. Victoria Samweli, PW2 and one Njanjuu Thomas who is PWl's brother went to Maria Thomas's house. They found the dead body of Shauri Samweli lying at the door, there was blood all over the door, and in the sitting room. Njanjau went to report to the police station. The police went to the scene, accompanied by Dr. Erasto Mbiche (PW5), who examined the body, and reported that the death was due to severe hemorrhage. The police drew the sketch map of the scene and interviewed the witnesses. The appellant, Masao Jumanne was apprehended by the villagers and taken to the police station. He was interviewed but denied committing the offence. He was then charged for the murder of Shauri Samweli. After a full trial, the appellant was convicted of an offence of murder and sentenced to suffer death by hanging. Being dissatisfied with both the conviction and sentence, the appellant filed a memorandum of appeal on 08/07/2021 comprising six grounds. However, for reasons that will be apparent in the course of this judgment we do not intend to reproduce the said six grounds. We will only reproduce two grounds of appeal comprised in a supplementary memorandum of appeal filed on 04th December, 2023; which are as follows: 1. That, the trial Court erred in iaw and fact in convicting and sentencing the appellant by relying on unsworn evidence given by PW3 in contravention of Section 198 (1) o f Criminal Procedure Act [Cap 20 R.E 2022]. 2. That, the learned trial Judge erred in iaw and fact in convicting the appellant based in the evidence o f PW1, PW2, PW3, PW4, PW5 and PW6 whose testimonies were unprocedural received by omitting to append her signature at the end o f their evidence thus unreliable and a nullity. On the hearing date, the appellant was represented by Ezekiel Amon Mwakapaje, learned advocate, whereas, Mr. Geofrey Aron Mlagala learned 5 Senior State Attorney and Mr. Guthad Mwingira learned State Attorney represented the respondent, Republic. We have considered the submissions by the counsel for both parties; however, we think the second ground in the supplementary memorandum of appeal is capable of disposing of this appeal. In the said second ground, the main complaint raised and conceded by the learned state Attorney is that, the trial Judge did not sign the proceedings after recording the evidence of the witnesses. We are in agreement with Mr. Mwakapaje that, from pages 38 to 62 of the record of appeal, the learned trial Judge did not append her signature after recording evidence of PW1, PW2, PW3, PW4 and DW1. The authenticity of the testimonies of the said witnesses together with the veracity of the trial court's proceedings is questionable. We find that the said omission had vitiated the entire trial court's proceedings and thus, they are a nullity. The issue of not appending signature after each witness's evidence was considered by the Court in the case of Yohana Mussa Makubi & Another v. Republic, Criminal Appeal No.556 of 2015 F20181 TZCA 80: [10 July 2018: TANZILII]. In that case, having been faced with an akin situation, the Court, after revisiting the provisions of section 356 of the Indian Criminal 6 Procedure Code which is in pari materia with section 210 (l)(a) of the CPA, observed that, what obtains in India as a rule of law is in our jurisdiction a long-established rule of practice as part of the procedure in the proper administration of criminal justice before the High Court. Specifically, the court observed that: "In iight o f what the Court said in WALIIABDALLA KIBWITA’s and the meaning o f what is authentic, can it be safely vouched that the evidence recorded by the triai Judge without appending her signature made the proceedings iegaiiy valid? The answer is in the negative. We are fortified in that account because, in the absence of signature o f triai Judge at the end o f testimony of every witness: firstly\ it is impossible to authenticate who took down such evidence. Secondly-f if the maker is unknown then, the authenticity o f such evidence is put to question as raised by the appellants’ counsel. Thirdly if the authenticity is questionable, the genuineness o f such proceedings is not established and thus; fourthlysuch evidence does not constitute part of the record o f trial and the record before us. " Then, the Court went on to state that: - 7 "We are thus, satisfied that, failure by the judge to append his/her signature after taking down the evidence o f every witness is an incurable irregularity in the proper administration o f criminaljustice in this country. The rationale for the rule is fairly apparent as it is geared to ensure that the trial proceedings are authentic and not tainted. Besides; this emulates the spirit contained in section 210 (1) (a) of the CPA and we find no doubt in taking inspiration there from. In view o f the stated omission the trial proceedings o f the High Court were indeed vitiated and are a nullity..." The principle was also emphasized in the case of Sabasaba Enos @ Joseph v. Republic, Criminal Appeal No. 411 of 2017 r20211 TZCA 142: [29 April 2021: TANZLII] and Mhajiri Uladi & Another v. Republic, Criminal Appeal No. 234 of 2020 r20211 TZCA313:[16 July 2021: TANZLII] that; "As demonstrated in this appeal, the testimonies o f all witnesses were not signed by the learned trial Judge not only the authenticity o f the testimonies of the witnesses but also the veracity o f the trial court record itself is questionable. In absence o f the signature o f the person who recorded the evidence, it cannot be said with certainty that what is contained in the record is the true account o f the evidence of the witness since the recorder of such evidence is unknown. On account o f such omission, the entire triai court proceedings recorded after the conduct of the preliminary hearing are vitiated because they are not authentic Indeed, we are satisfied in the instant case that, the trial judge did not append her signature particularly after PW1, PW2, PW3, PW4 and DW1 had concluded their testimonies. We are of the view that this does not offer assurance that the trial proceedings are authentic and not tainted. Consistent with our earlier decisions on this aspect, it is obvious that the omission amounted to an incurable irregularity as it cannot be cured by section 388 of the CPA. In the result, we find that the omission vitiated the entire proceedings of the trial court and thus they are a nullity and cannot be left to stand on the record of appeal. The remaining issue is whether retrial can be ordered. On our part, having scrutinized the factual setting in the record of appeal, we agree with the submission by Mr. Mwakapaje, the learned counsel for the appellant that, there are lapses in the prosecution case, namely, One, PW3 testified not under oath. When PW3 was testifying at page 45- 49 of the records of appeal she was of 16 years of age. That means, in terms of Section 127(4) she does not fall under the category of the children of tender age who were supposed to give their evidence in compliance with Section 127 (2) of the Evidence Act, However, the trial judge conducted voire dire test prior to recording her evidence. Two, there is no dispute that, PW1 and the appellant were husband and wife until they separated few months before the incident of murder. PW1 being wife of the appellant, the trial court did not consider as to whether she was compellable witness in terms of section 130 (1) of the Evidence Act [Cap. 6 R. E. 2019] which provides that, where a person charged with an offence is the husband or the wife of another person that other person shall be a competent but not a compellable witness on behalf of the prosecution. PW1 was not accorded the right to opt whether or not to give evidence against her spouse (appellant). Three, there is inconsistence in PWl's evidence who allege to be the eye witness. At page 37 of the records PW1 testified that she saw the appellant slashing the deceased on the neck, however at page 38 when examined by the State Attorney's she stated that she did not see the appellant cutting or slashing the deceased. Four, there are material contradictions in the evidence of the PW1 and PW4. At page 40, PW1 when answering the 2nd assessor's questions, she averred that she heard the deceased telling her "Maria nimepigwa kwenye shingo” while at page 50 and 51 PW4 stated that, after PW1 had been slashed by the appellant she ran away. He went on stating that, the deceased did not tell mama (PW1) he was attacked. Five, the offence of murder was witnessed by PW3 and PW4 at the age of 11 and 12 years, and testified at the age of 16 and 17 years respectively. If retrial is ordered, they will testify at the age of 20 and 21 years, assuming the case is heard on 2024. PW3 and PW4 will be more knowledgeable than when they witnessed the murder on 31st December, 2016. Under those circumstances, we find a retrial will enable prosecution to perfect their previous case. In the end, like the learned appellant's counsel, we don't think it is proper and in the interest of justice to order a re-trial on account of lapses on the evidence available on the record of appeal. An order of re-trial will definitely pave way for the prosecution to fill up the obtaining gaps which will therefore occasion an injustice to the appellant. That stance was lucidly stated in the decision of the defunct East African Court of Appeal in the case of Fatehali Manji v. R, [1966] EACA 343 as follows: - "In general, a retrial will be ordered only when the original trial was illegal or defective. It will not be ordered where the conviction is set aside because o f insufficiency o f evidence or for purpose of enabling the prosecution to fill up the gaps in its, evidence at the first trial. Even where a conviction vitiated by a mistake o f the trial court for which the prosecution is not to blame; it does not necessarily follow that a retrial shall be ordered; each case must depend on its own facts and circumstances and an order o f retrial should only be made where the interests o fjustice require."(Emphasis added). Also, in the case of Ndaro Sumuni Mabuse @ Amiri Ronaldo & Others vs Republic (Criminal Appeal No, 117 of 2023) [2023] TZCA 17761 (18 October 2023, TANZLII) when faced with the same question of whether it was proper to order retrial the court stated that: " ...retrial is meant, for correcting the omissions caused or experienced during trial and not otherwise. Therefore, if there is a possibility that the intended retrial will permit the prosecution to perfect its flawed case, the Court has in most cases refrained from doing that The rationale behind is if the availed opportunity will allow the prosecution to reorganize 12 its case and filing the gaps then there is a possibility or likelihood o f causing injustice to the accused person and that is not what courts who are temple o fjustice are for." In the result, for the foregoing reasons, we allow the appeal, thus, quash the conviction and set aside the sentence. Consequently, we order the immediate release of the appellant unless he is otherwise held for another lawful cause. DATED at DAR ES SALAAM this 29th day of December, 2023. S. A. LILA JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Judgment delivered this 2ndday of January, 2024 in the presence of Appellant in person and Ms. Faudhiat Mashina, learned State Attorney for the Respondent vide video link from the High Court of Tanzania at Dodoma, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 13