CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA (CORAM: MWARIJA. J.A.. MASHAKA. J.A. AND FELESHI, J.A) CRIMINAL APPEAL NO. 280 OF 2023 A 1. IGNAS SUNGURA 2. JAMES PASCHALE 3. NICKSON NGALAMIKA @KADOGOO y ............................. APPELLANTS 4. IBRAHIM TELLA 5. FARAJA JAILOSI @ MWEZIMPYA J VERSUS THE REPUBLIC.................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Sumbawanga) (Mwenerrmazi, J.^ dated the 8th day of December, 2022 in Criminal Session No. 13 of 2021 JUDGMENT OF THE COURT 26th March & 8th April, 2025 FELESHI. J.A.: The instant appeal, that is, Criminal Appeal No. 280 of 2023 is the second appeal preferred by the appellants Ignas Sungura, James Paschale, Nickson Ngalamika @Kadogoo, Ibrahimu Telia and Faraja Jailosi Mwezimpya (the 1st, 2nd, 3rd, 4th and 5th appellants, respectively) i before the Court. Their first appeal was Criminal Appeal No. 375 of 2017 (the 1st appeal). The two appeals emanate from the Sumbawanga District Court Preliminary Inquiry No. 13 of 2013 where the appellants and one Weda Mashilimu @ Baba Siha (not part of the instant appeal) were arraigned on two counts namely, conspiracy to murder and attempt to murder: contrary to sections 215 and 211 (a) of the Penal Code, Chapter 16, respectively. While in the first count it was alleged on the unknown date, time and place, within Sumbawanga District in Rukwa Region, they jointly and together conspired to murder one Mwigulu Matonange; they were in the second count alleged to have jointly and together attempted to murder the said Mwigulu Matonange on the 5/2/2013 at Msia Village within the same district and region, by chopping his left hand using a machete. For a reason which will shortly become apparent, we will not present the substance on what transpired in trial proceedings. The background and facts giving rise to this second appeal in a nutshell thus are that: On 5/2/2013 a team of conspirators attacked Mwigulu Matonange, a person with albinism, who was out tending to his cattle. The assailants forcibly took him to a secluded location and using a machete they severed his left hand above the elbow and went at large. 2 His disappearance engaged his family into a search which at the end recovered him but, though was still alive, Mwigulu was severely injured. He was rushed to Mtowisa Health Centre and with him was a Police Form No. 3 (PF.3) which was later filled after he had received medical service. Then the investigation ensued for purposes of unfolding the perpetrators behind the atrocious act. The police in Tabora in the course of gathering information about individuals involved in trafficking human body parts arrested three suspects who later came to be the appellants and their accomplices. They also recovered a bone suspected to be part of a human body. On 6/5/2013, the Chief Government Chemist conducted DNA testing, and confirmed that the bone belonged to Mwigulu Matonange. That evidence linked the appellants to the crime and hence, they were charged and tried in High Court Criminal Sessions Case No.l of 2015 sitting at Sumbawanga (the trial court). After a full trial, the appellants were convicted on both counts where, while in the 1st count each of the appellants was sentenced to serve fourteen (14) years imprisonment, each of them was in the 2nd count sentenced to twenty (20) years imprisonment. The sentences were ordered to run concurrently. 3 Discontented by the decision of the trial court, the appellants preferred the 1st appeal which included Weda Mashilimu @ Baba Siha. They had a total of 34 grounds of appeal but, because of the irregularities found by the Court in the trial court proceedings to wit, non-compliance with sections 265 and 298 (1) of the Criminal Procedure Act, Chapter 20 (the CPA), the Court, acting under section 4(2) of the Appellate Jurisdiction Act, Chapter 141, nullified the trial court proceedings and judgment, quashed the appellants' conviction and set aside their sentence and ordered a re-trial. Upon the re-trial proceedings, page 300 of the record of appeal bears out that, the appellants were again convicted on both counts and on what looks to be compounded sentence, each was sentenced to twelve (12) years imprisonment. It is from the retrial proceedings in Criminal Session No. 13 of 2021 and the judgment dated 8/12/2022, the appellants jointly preferred this second appeal raising a total of six grounds which we need not reproduce for the reason that counsel for the appellants abandoned the 1st, 2nd, 3rd, 4th and 6th grounds and with the leave of the Court argued the 5th ground to wit, "The appellants were unfairly heard and improperly represented for being jointly represented/assigned with the same defence counsel despite their conflict o f interest regarding to the charges charged with." When the appeal was called on for hearing the appellants were present under the representation of Messrs. Mathias Budodi, Peter Kamyalile, Charles Kasuku, Ms. Neema Charles, and Ms. Tunu Mahundi, all learned advocates, respectively. On the other side, Ms. Flavia Shiyo, learned Senior State Attorney assisted by Mr. Joseph Mwakasege, learned State Attorney, represented the respondent, the Republic. It was Mr. Budodi, learned counsel for the 1st appellant, who led his fellow defence counsel to argue the solo opted ground of appeal. He argued that, despite the apparent conflict of interest which existed amongst the appellants, the 1st appellant and his co-appellants were represented by two advocates. Referring us to to pages 133 to 145 and from pages 146 to 155 of the record of appeal in respect of the trial court's preliminary hearing and trial hearing proceedings, respectively, he said, only Mr. Baltazar Chambi and Ms. Rehema Mpozimenya, learned advocates, appeared and represented all appellants. He said, as evidenced by exhibit P2, the 3rd appellant's cautioned statement which implicated his co-appellants. 5 Mr. Budodi strongly argued that, when more than one accused person are charged and their statements implicate each other, the principle of natural justice required each of them to be equally and effectively represented before the trial court. To support his argument, he cited the case of Magutu Sima @ Maro v. Republic (Criminal Appeal No. 553 of 2022) [2025] TZCA 265 (24 March 2025). Highlighting his argument, Mr. Budodi referred us to page 10 of that decision where the Court was of the view that, it was impractical for one advocate who represented two accused persons who had given incriminating statements against each other to cross-examine them and / or lead them to cross-examine each other. To Mr. Budodi, failure to cross-examine is a contravention to a constitutional right of equality before the eyes of law and fair trial as per article 13 of the Constitution of the United Republic of Tanzania, Chapter 2 (the Constitution). He further argued that, the irregularity obtained in the trial court proceedings renders its proceedings and consequent judgment a nullity. He thus implored the Court to nullify the trial court proceedings, quash the first appellant's conviction and set aside his sentence and order for his release. 6 Mr. Budodi further expressed his fear that, if this Court will order the 1st appellant to go for a re-trial that will be his 2nd re-trial and 3rd trial proceedings. He argued that the prosecution will seize the opportunity to re-fill the gaps obtained in its case. He also urged the Court to consider that the appellants have been in custody for more than twelve (12) years. On this, he cited the decision in the case of Lengume Lenemas Lesei v. Republic (Criminal Appeal No.420 of 2020) [2023] TZCA 17565 (30 August 2023) and beseeched the Court to allow the appeal for the best ends of justice. On their part, Messrs. Kamyalile and Kasuku, Ms. Charles and Ms. Mahundi for the 2nd, 3rd, 4th and 5th appellants respectively, adopted Mr. Budodi's position, submissions and prayers in their entirety for the appellants they represented. However, and without prejudice to Mr. Budodi's submission and prayers, Ms. Mahundi referred us to page 143 of the record of appeal and drew our attention to the fact that, during the preliminary hearing on 11/10/2021 Mr. Chambi, learned advocate who represented all six appellants raised the issue of each appellant to be availed with a separate advocate before the trial court. However, she argued, that was not considered as thereafter, as alluded to earlier, only two advocates represented all six appellants together at the trial. 7 On the respondent's side, Mr. Mwakasege readily conceded to the appellants' counsel's position and submissions. To reinforce his position, in addition to the authority cited by Mr. Budodi, he cited our mostly recent decisions in Emmanuel Baraka Nfitiye and Another v. Republic (Criminal Appeal No. 385 of 2023) [2025] TZCA 213 (14 March 2025), Mugisha Katulebe v. Republic (Criminal Appeal No. 76 of 2022) [2024] TZCA 1157 (28 November 2024) and Mabula Mwandu @ Nyau and Another v. Republic (Criminal Appeal No. 222 of 2023) [2025] TZCA 269 (24 March 2025). However, while acceding to the appellants' counsel's prayers, Mr. Mwakasege fairly, in our view, expressed his discomfort with the omnibus argument raised by the learned appellants' counsel that the Court should not order a re-tria!to deter the prosecution from filling gaps without substantiating those gaps. As aforesaid, he otherwise conceded the single opted ground of appeal. In rejoinder, all appellants' counsel had nothing to add. On our part, we have considered the concurrent submissions by the parties' counsel and the authorities referred to. On the outset, we have to note that the issue of each accused person to be availed with a separate advocate when they have conflicting interests is not novel as correctly cemented by the counsel for the parties in the authorities 8 referred to us and many others including, Charles s/o Kidaha & Others v. Republic (Criminal Appeal No. 395 of 2018) [2021] TZCA 526 (27 September 2021) an Masanja Magishi and 3 Others v. Republic (Criminal Appeal No, 286 of 2021) [2024] TZCA 1112 (15 November 2024). For instance, in Mabula Mwandu @ Nyau and Another v. Republic (supra), we noted in part that: "... the conflict o f interest between the appellants at the trial was apparent. They could not be effectively represented by one advocate. What the trial court ought to have done in the circumstances was to adjourn the trial and order that each appellant be assigned a separate advocate. The said procedural Irregularity renders the proceedings a nullity because the appellants were denied fundamental rights o f being heard and represented." The essence of our deliberation is for effective representation before the court of law as one of the tenets of a fair hearing which embraces a fundamental right to be heard envisaged under article 13 (6) (a) of the Constitution. The same right to fair hearing and representation is governed by the CPA and the Legal Aid Act, Chapter 21. Section 310 of the CPA provides that: 9 "310. Any person, accused before any criminal court, other than a primary court, may o f right be defended by an advocate o f the High Court subject to the provisions o f any written iaw relating to the provision o f professional services by advocate." Besides, section 33 of the Legal Aid Act states that in criminal proceedings, if the presiding Judge or Magistrate determines that it is in the interest of justice for the accused to receive legal aid for the preparation and conduct of their defense or appeal, and the accused lacks the financial means to afford legal services, then the Judge or Magistrate must certify that the accused requires legal aid. Upon issuing such a certificate, the Registrar will assign a legal aid provider with an advocate to assist the accused in preparing and conducting their defense or appeal. The implementation of section 33 above is further detailed in the Legal Aid (Remuneration of Advocates) Rules, 2019 on how the powers of Judges and Magistrates can be well exercised. See the elaboration in Mugisha Katulebe v. Republic (supra). With the above law, we find constrained to agree with the concurrent submissions by the parties' counsel that, going by the record of appeal, the appellants were incriminating each other in their statements admitted by the trial court. For example, at pages 303 to 313 10 of the record of appeal, the 3rd appellant's cautioned statement mentioned to conspire with the 5th, 1st and 2nd appellants. Also, at pages 321 and 331 of the record of appeal, the extrajudicial statements of the 2nd and 3rdappellants respectively, mentioned the 4th and 1st appellants. Besides, page 295 of the record of appeal shows that, the trial court in the impugned judgment referred to an extra-judicial statement of the 2nd appellant incriminating the 1st appellant. Nevertheless, as correctly substantiated by Ms. Mahundi, no remedial measures were taken by the trial court to ensure the appellants were effectively represented. It is plainly clear that, page 143 of the record of appeal bears out that Mr. Chambi, who was representing the appellants before the trial court had raised the concern of each appellant to be availed with defence counsel on the ground that they had conflicting interests in their statements. The record below speaks by itself on what transpired before the trial court on 11/10/2021: "Mr. Chambi Defence Counsel: The accused will testify on their own behalf they don't intend to have exhibits. We pray the court considers adding defence counsel. For there conflicting interest in the statements o f the accused. It is possible each should have his counsel. li Mr. Mwabeza-State Attorney: No objection to that. Court: Let the D/registrar arrange to add two defence counsel during trial." Sgd: B.D.Ndunguru June 11.10.2021 As indicated above, it is not known what made the trial court think three advocates would have met the prayer raised by Mr. Chambi and then, what clogged its order and let all accused persons before it to be represented by only two advocates during the trial. In view of the foregoing, we entertain no doubt that it was not in the interest of justice to have all five appellants before us represented by the same two advocates as, each appellant ought to have a separate advocate for effective cross-examination. What happened, we find, prejudiced the appellants' right to fair hearing. We encountered a similar situation in Charles s/o Kidaha & Others (supra). In that case, an extra-judicial statement of the first appellant implicated other appellants. When it was about to be tendered, the advocate who was representing 12 other appellants raised an objection which led to a trial within trial. During that min case hearing, we found that the other appellants, though implicated in the extra-judicial statement, had no opportunity to cross-examine since the same advocate was representing them all. Resolving the anomaly, we had this to say: "Thus, in this appeal, the learned Judge breached the basic rights o f the 2Pd and J d appellants when he proceeded to hear and determine on the admissibility o f Exhibit P2 without giving an opportunity to the 2nd and 3 d appellants to cross-examine the witnesses for both the prosecution and the defence. Consequently, consistent with settled law, we are o f the firm view that the decision o f the trial court was reached In violation o f the 2Pd and J d appellant's constitutional right to be heard, and it cannot be allowed to stand." Following the above law, we found the trial court proceedings and the resultant decision were, indeed, a nullity. As to the remedy thereof, having paid regard to the decision of the defunct Court of Appeal of East Africa in Fatehali Manji v. The Republic (1966) E.A. 343 and considered the circumstances of the appeal before us we were satisfied that the interest of justice in that appeal required us to order a retrial. In that case, it was held that: 13 "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 the purposes o f enabling the prosecution to fill gaps in its evidence at the first trial ... each case must depend on its own facts and circumstances and an order for retrial should only be made where the interests ofjustice require it." [Emphasis added] In the instant appeal, we agree with Mr. Mwakasege that, it was improper for Mr. Budodi's to invite the Court not to order re-trial without substantiating the alleged gaps which, if an order for re-trial is issued, would allow the prosecution to fill them hence prejudice the appellants. That assertion was thus a fallacy and not in line with the position settled in Fatehali Manji (supra). The decision in the 1st appeal, that is, Weda Mashilimu @ Baba Siha & Others v. Republic (Criminal Appeal 375 of 2017) [2020] TZCA 187 (1 April 2020) tells it all that, before declining the appellants' prayer to order for the appellants' release from prison, we were taken through the alleged gaps but, we found there was nothing new that the prosecution could introduce in its record. We thus ordered for a /"e-f/Ti?/whilst reasoning that: 14 "In the present case, considering the gravity o f the offence, the fact that the irregularities in the proceedings were to a large extent occasioned by the trial court, and the fact that although as mentioned by the learned counsel for the appellants and also to some extent conceded by the learned State Attorney, on other procedural irregularities in the prosecution evidence especially related to admissibility o f some documents. We are o f the view that there is enough oral evidence from prosecution witnesses and some confessional statements which reflect a strong case against the appellants without the prosecution resorting to filling any gaps in available evidence. We are thus settled that, an order for retrial under the circumstances, will serve the interests o fjustice in this case."[Emphasis added] Therefore, in view of the foregoing and bearing in mind on what transpired in this case and as may arise in other cases, we find it imperative to remind that, a party arguing against re-trial should not censure the prosecution with "possible pre re-trial gaps filling investigation" without substantiating the gaps in question. That is to assist the appellate court to consider and hear the prosecution before finally deciding whether to order re-trial or not. As indicated above, it is unfortunate that, in this appeal, during rejoinder, the learned appellants advocates did not give any substantiation. 15 Lastly, we were invited by Mr. Budodi to consider the period spent by the appellants in custody in the light of our decision in Lengume Lenemas Lesei (supra). Indeed, that we find at once that it was a misconceived argument on the reason that, in Lengume Lenemas Lesei (supra) we invoked our revisionary powers to discount the period spent by the appellant in custody which was inadvertently not discounted by the trial court under section 172 (2) (c) of the CPA. Therefore, we find that case law cited to us is irrelevant to the ground of appeal before the Court. Consequently, in view of what transpired in this matter from when we last determined the 1st appeal above, we think, the instant appeal merits another keen attention by the Court because, the period reckoned from 3/5/2013 when the appellants were first arraigned before the committing court to date, is now longer than the custodial sentence of twelve years imposed on each appellant by the trial court on 8/12/2022. Therefore, as prayed, we decline to order another re-trial as doing so, in our view, will inevitably cause grave injustice to the parties for irregularities further condoned by those entrusted to control and regulate proceedings. 16 That said and done, we allow the appeal on that sole ground of appeal. We nullify the trial court's proceedings and the resultant judgment, quash the appellants' conviction, set aside their sentence and order for their immediate release from prison unless they are held for other lawful causes. DATED at SUMBAWANGA this 2nd day of April, 2025. A. G. MWARIJA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 8th day of April, 2025 in presence of appellants in person - unrepresented and Mr. Ladislaus Akaro, learned State Attorney for the Respondent/Republic is hereby certified as a true -DEPUTY REGISTRAR COURT OF APPEAL 17