ISAYA JOSEPH CHUNGU

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: KOROSSO, J.A., KENTE, J.A.. And MGONYA. J.A.^ CRIMINAL APPEAL NO. 591 OF 2021 ISAYA JOSEPH @ CHUNGU................................................. 1st APPELLANT JAMES MWAIKUKA MASANJA @RASI............................... 2nd APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mbeya) (Karavemaha, J.l Dated the 24th day of September, 2021 in Criminal Sessions Case No. 65 of 2021 JUDGMENT OF THE COURT 11th & 21st February, 2025 KOROSSO, JA.: The appellants Isaya Joseph @ Chungu and James Mwaikuka Masanja @ Rasi were charged and convicted in the High Court sitting at Mbeya for the offence of Murder, contrary to sections 196 and 197 of the Penal Code, Cap 16 (the Penal Code) and sentenced to suffer death by hanging. Unsatisfied, they are before this Court appealing against the conviction and sentence imposed through joint memorandum of appeal with seven grounds filed on 4/3/2022 and three grounded i supplementary memorandum of appeal filed on 5/2/2025 which we will not reproduce at this juncture for reasons to be revealed later in this judgment. Before we proceed further, we find it pertinent to allude to the material facts as drawn from the record of appeal. It is the prosecution evidence that on 16/2/2013, after attending the funeral of a colleague, Zaituni Samson (the deceased), Janeth Joseph Chungu (who had a child) and the 1st appellant, stopped for drinks at a Pombe club belonging to Maria Paulo (PW8). Thereafter, around 18.00 hours or so, the three, decided to go home. Enroute back home, since it had started to rain, the deceased encouraged Janeth Chungu to rush home to protect the child she was carrying. Janeth heeded the advice and rushed home, leaving the deceased and 1st appellant walking together. Soon after, the 1st appellant arrived home only to inquire whether the deceased had already arrived there and was told it was not the case. The fact that the deceased was not back home by then prompted Janeth Chungu (Janeth) and the 1st appellant to start looking for her, trying to follow the path where she had last been seen. The search team went to meet Paulos Ludisha Mhewa (PW4), the deceased's husband, to inquire whether he had seen the deceased, however, he had not. PW4 and the 1st appellant picked some weapons and, together with Janeth, proceeded to search for the deceased, going back to where she was last seen. On the way there, the search team met one Esther Sinkala who was carrying the deceased on her back. At this time, the deceased was in a bad condition, vomiting and blood was oozing from her nose, mouth and private parts. The deceased was taken to PW4's house and on arrival there, she lost consciousness which prompted those around her then to take her to the hospital. However, she died on the way, and upon arrival there, Zaituni Samson was declared dead. Dr. Wedson Mastara Sichawe (PW3), who examined her dead body, opined that death was due to a fracture of the jugular vein that occasioned excessive bleeding. There was also a swelling of the neck and it was loose and flexible to the extent it could rotate in every direction. The 1st appellant and Janeth were arrested and suspected of causing the death of Zaituni Samson, however, Janeth was later released from custody. The 2nd appellant was arrested on 24/3/2013 upon being mentioned by the 1st appellant as his accomplice when questioned. Later, the 1st and 2nd appellant were charged with murder as expounded earlier herein, particularly, that on 16/2/2013 at Udindilwa Village, within Mbarali District, Mbeya Region, jointly and together, murdered one Zaituni Samson. Both vehemently denied the charge, which led to the conduct of the trial. 3 On the day the appeal was called for hearing before us, the appellants were represented by Messrs. Chapa Alfred and Steward Ngwale, learned advocates, while Ms. Caroline Matemu, learned Senior State Attorney, represented the respondent/Republic, assisted by Mr. Davice H. Msanga and Ms. Julieth Katabaro, learned State Attorneys. Before the hearing proceeded in earnest, Mr. Chapa prayed and was granted leave to abandon grounds 4, 5 and 6 found in the substantive memorandum of appeal. The Court was also informed that grounds 1, 2, 3 and 7 in the memorandum of appeal would be argued jointly, and in addition, grounds 1, 2 and 3 in the supplementary memorandum were to be argued individually. The appellants essentially fault their conviction and sentence by the trial court and upheld by the first appellate court for the following reasons: One, failure to consider the uncertainty in the cause of death of the deceased. Two, reliance on weak and uncorroborated circumstantial evidence to convict the appellants. Three, the impropriety in the admissibility of the cautioned statement (exhibit P2) and after being admitted, being read aloud in the absence of assessors. Four, non-consideration of the appellants' defence evidence. Five, failure to recall assessors after the conduct of trial within the trial, and six, not drawing adverse inferences upon the prosecution's failure to call material witnesses to testify. In amplifying the appeal, Mr. Chapa began addressing complaints number three and five stating that they are threshold grounds on points of law related to the trial court's inadvertence not to recall assessors after the conduct of trial within trial. The learned counsel for the appellants argued that the record of appeal does not show whether upon being excused from the trial proceedings before the commencement of the conduct of a trial-within-trial as found on page 61 of the record of appeal, the assessors were recalled back in court to enable them to take part in the trial when exhibit P2 was being read aloud, having been admitted as evidence as discerned at page 73 of the said record . He argued further that, although the record of appeal at page 75 of shows the assessors questioning PW6 for clarification, in the absence of any record showing that the assessors were recalled before exhibit P2 was admitted and read aloud, the plausible inference that can be drawn is that the assessors were absent and thus did not participate in the hearing at that stage. According to Mr. Chapa, reading the contents of an exhibit upon being admitted is an essential component in a trial because it allows an accused person and others who are part of the trial 5 to understand the gist of the admitted exhibit. For the assessors, arguably assists them when deliberating on what verdict to give and on this, he cited the case of Emmanuel Konrad Yosipati v. Republic, Criminal Appeal No. 296 of 2017 (unreported) to cement his contention. Therefore, the anomaly meant the admitted cautioned statement of the 2nd appellant (exhibit P2) not being read before them, he argued, and therefore questioned the propriety of its admissibility. Mr. Chapa contended further that the irregularities discerned show that the trial was conducted without assessors as required under section 283 of the Criminal Procedure Act, Cap 20 (the CPA) before its amendment as they were not availed with all the necessary tools for their verdict to be proper, that is, exhibit P2. He thus prayed for the Court to find the irregularity fatal and incurable and that the appellants were undoubtedly prejudiced. When questioned on the remedy, he submitted that although in such situations, the general remedy is to order a retrial, when the principle in the case of Fatehali Manji v. Republic [1966] EA 343 is considered and applied, an order for the retrial will not be appropriate and it is not what justice demands in the circumstances for two reasons: first, failure to recall the assessors to be part of the proceedings when exhibit P2 was admitted and read aloud was unquestionably prejudicial to the appellants' rights since the assessors were not privy to such evidence, essential to facilitate them to have informed deliberations before giving a verdict as required by the law. Second, a retrial will provide the prosecution with an opportunity to fill the gaps in their case. He contended that a scrutiny of the record of appeal reveals apparent holes in the prosecution case. He expounded such gaps to include; impropriety in admitting exhibit P2 and failure of the prosecution to prove that exhibit P2 was recorded within the time specified by the law under section 50(2) of the CPA. Mr. Chapa further argued that, with such irregularities, the remedy is to expunge exhibit P2 and urged us to proceed thus. According to him, expunging exhibit P2 will further weaken the prosecution case since it was essential for the prosecution to prove its case as it was relied upon by the trial court to convict the appellants. He contended that in the absence of exhibit P2, the remaining evidence against the appellants is too weak to sustain the appellants' convictions. Furthermore, he asserted that this fact is further amplified by the prosecution's failure to call two material witnesses to testify (Janeth and Esther). He stated that Janeth was important because she was with the 7 deceased and the 1st appellant en-route home until she left the two together upon rushing home to protect her child from the rain. According to Mr. Chapa, evidence from Esther, who was the one carrying an unconscious deceased when the search team was looking for the deceased, was important because it would have given light on where she found the deceased and her condition then before carrying her. He urged us to draw an adverse inference on the prosecution's failure to call such important witnesses without giving any explanations, contending that apart from the fact that it weakened their case, an inference can be drawn that they had something to hide and that their evidence was probably in favour of the appellants. He cited the case of Metusela Musa v. Republic, Criminal Appeal No. 214 of 2021 (unreported) to reinforce his contention. Discussing whether an order for retrial will be appropriate in view of the irregularities discerned, the learned counsel for the appellants reasoned that this is not a fit case for such an order since it will provide the prosecution side room to fill the highlighted gaps in evidence to prove the case and render injustice to the appellants. He implored us to find the appeal meritorious, allow it, quash the convictions against the appellants and set aside the sentences meted out on them. In reply, Mr. Msanga who anchored in submitting for the respondent Republic, commenced by resisting the appeal and then amid his submissions upon further reflections, backtracked and decided to support the appeal for the following reasons: one, he conceded to the irregularities in the conduct of trial upon the trial court's failure to recall the assessors at the time of admitting exhibit P2 and the reading of its contents. He argued that in the absence of any record to show they were recalled and present in court at the time controverted section 283 of the CPA. Two, that exhibit P2 was improperly admitted because section 50(2) of the CPA was contravened since there was no evidence to show the time the 2nd appellant was arrested and thus rendered it difficult to determine whether his cautioned statement was recorded within the four hours specified by the law upon his arrest. He thus submitted that the infraction should move the Court to expunge exhibit P2 which will then leave circumstantial evidence only to sustain the conviction against the appellants. The learned State Attorney stated further that the circumstantial evidence available is weak as the cause of death was not ascertained, and in the absence of exhibit P2, there is no other cogent evidence to draw an inference that it is only the appellants who could have 9 committed the offence charged. Additionally, he conceded that Janeth and Esther were essential witnesses who could have further assisted in building the case for the prosecution and failure to call them to testify weakened the prosecution case and left gaps in the chain of events. He thus prayed the Court to quash the appellants' conviction, set aside the sentence imposed and allow the appeal. There was no rejoinder from the appellants' counsel save for imploring us to consider the grounds of appeal and the prayers sought. Having considered the submissions, cited authorities from the counsel for the parties on the two grounds of appeal discussed and gone through the record of appeal, we find the central issue to be whether the trial was conducted by assessors as the law required then. It is pertinent to note that in June 2021 when the trial hearing subject to this appeal commenced, it was a requirement under section 265 of the CPA for all criminal trials before the High Court, to be conducted with the aid of two or more assessors as selected by the trial court. This essentially entailed active participation by assessors who with the leave of the Court could query witnesses to get clarification on facts adduced under section 177 of the Evidence Act, Cap 6 (Evidence Act). 10 However, the above position changed following the amendments ushered in through the Written Laws (Miscellaneous Amendments) Act No. 1 of 2022. Since then, such, is no longer a requirement as section 265 (1) of the CPA now reads: "265 (l)-The high Court may, where it considers necessary for the interest of justice, sit with not less than two assessors provided that in deciding the matter, the judge shall not be bound, by the opinions of assessors." The position of the law prior to the above-mentioned amendments, further required the trial Judge to sum up the evidence adduced at the trial and thereafter, assessors were obliged to give their opinions in terms of section 298(1) of the CPA. Given the law alluded to above, plainly, full participation of assessors in the trial was important and were seen of great assistance to the trial Judge in the conduct of the trial. Undoubtedly, to be of value and provide the necessary assistance to the trial Judge, apart from being apprised of the relevant laws and the salient facts of the case, assessors, had to fully understand the facts of the case before them as stated in Washington Odindo v. Republic [1954] 21 EACA 392. li In the instant case, the record shows that on 7/09/2011, after the Court ordered for the conduct of a Trial within Trial (page 61 of the record), the court assessors were discharged. Thereafter, after the ruling related to the objection by the defence on the voluntariness of the cautioned statement of the 2nd appellant (at page 73 of the record of appeal), the trial court having admitted the said cautioned statement as exhibit P2, went on to order for it to be read over loudly in court in the presence of both parties. There is no record to show that the assessors were invited back to hear the contents of exhibit P2 being read and their presence is seen later when they were invited to ask PW6 (who was the one testifying) questions for clarification (page 75 of the record of appeal). Their absence at the time exhibit P2 was read over is also reflected in their opinions as found at pages 145 and 146 of the record of appeal. The first and third assessors' opinions made no reference to exhibit P2, which can also be discerned from the opinion of the second assessor who only narrates what PW6 testified with regard to exhibit P2. Considering exhibit P2 was relied upon to convict the appellants, at page 176 to 182 of the record of appeal, the trial Judge states: " With respect to exhibit P2 after admitting it the issue that arises relates to the weight to be 12 attached to it in proving the accused persons guilt or otherwise... Exhibit P2 tells a story which is consistent with truth as told by prosecution's witnesses, especially PW3, PW4 and PW8. The statement complement\ as well with the contents of postmortem report (exhibit PI) which described the deceased's death and that what caused it is severe haemorrhage caused by the fracture of the neck jugular veins... As such, this court is justified to rely on it, taking into consideration that it meets the threshold of weight of evidence required of it." Flowing from the above excerpt, evidently the High Court, together with circumstantial evidence, fully relied on exhibit P2, to convict the appellants. Therefore, plainly, it was essential for the assessors not to be deprived of its contents, so that they could give a more informed opinion on the guilt or innocence of the appellants. The importance of reading essential documents such as exhibit P2 to assessors cannot be overstated. Since, the appellant's conviction was arrived after the opinion of assessors had been given, we are thus certain, as alluded to by Mr. Chapa and the learned State Attorney, that the infraction addressed above, vitiated the trial. We also find it prudent to expunge exhibit P2 from the record. In light of the above, we invoke our revisional powers under section 4 (2) of the Appellate Jurisdiction Act, 13 Cap 141 (the AJA), and nullify the proceedings, quash the conviction and set aide the sentence imposed by the trial court against the appellants. That being the position, it is now incumbent to consider whether the appellants be retried as the general rule guides us. In determining this, we rely on the established principle expounded in the case of Fatehali Manji (supra), and thus constrained to consider the peculiar circumstances of the case and what the interest of justice demands. We are alive to the settled law that an accused person may be convicted on strength of circumstantial evidence without any other type of evidence to corroborate it, a position restated by the Court in Julius Justine and Four Others v. Republic, Criminal Appeal No. 155 of 2005 and Georgina Masala v. Republic, Criminal Appeal No 128 of 2014 (both unreported). However, we are also guided by law as found in the case of Simon Musoke v. Republic [1958] 1 EA 715 which held: "In a case depending exclusively upon circumstantial evidence, the court must, before deciding upon a conviction, find that the inculpatory facts are incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that o f guilt!' 14 Furthermore, in the case of Marecha Mashala v. Republic, Criminal Appeal No. 447 of 2019 (unreported), the Court considered the holding of the decision of the Privy Council in Lezjor Teper v. Reginam [1952] A.C. 480 at page 489 stated: "It is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co­ existing circumstances which would weaken or destroy the inference." Taking into account of the above cited decisions, the issue before us is whether in the instant case, circumstantial evidence relied upon by the trial court to convict the appellants irresistibly pointed out to the guilt of the appellants removing any other inference. In responding, we agree with both the learned State Attorney and the learned counsel for the appellants, that this is not the case. Given the nature of the evidence on record, where both sides have agreed that the cause of death of the deceased was not established to the standard required, and in the absence of the confessional statement (exhibit P2), we are of the view that the uncorroborated circumstantial evidence, which was relied on by the trial court to convict the appellants, cannot sustain conviction of the appellants. The absence of 15 Janeth and Esther as witnesses for the prosecution further weakens the prosecution case. The available circumstantial evidence is derived from Kasimu Watsoni (PW1), the Village Chairman, whose evidence was that he was informed after the deceased was already laying down unconscious at PW4's premise. Joseph Amanyisye (PW2), the Village Executive Officer recounted a similar testimony to that of PW1. The evidence of PW4, related to asking his children the whereabouts of the deceased upon returning home in the evening on the fateful day, being informed she had gone to a funeral with Janeth and to join the search team looking for his wife only later to find Esther carrying her while vomiting, bleeding and later became unconscious. The other witness relevant in proving circumstantial evidence is PW8, a pombe seller, who testified to have seen the deceased with the 1st appellant and Janeth and they stopped at her club to drink at around 15.00 hours. That at around 20.00 hours, the three left together to go home and that it was the last time she saw the deceased as the next day she heard, Zaituni was dead. Suffice it to say, the evidence of the witnesses as to what transpired prior to the death of the deceased person does not leave us with only one conclusion that it were the appellants who caused the death of the deceased. The fact that it is Esther who was the one 16 carrying the body of the deceased alive though in a bad state of health removes the element that it was the 1st appellant who was the last person to be seen with Zaituni when alive. In the case of Mathayo Mwalimu and Another v. Republic, Criminal Appeal No. 147 of 2008 (unreported), the Court stated that: "... if an accused person is alleged to have been the last person to be seen with the deceased, in the absence of a plausible explanation to explain away the circumstances leading to the death, he or she will be presumed to be the killer." It is pertinent to understand that the doctrine of the last person to be seen with the deceased does not apply anytime it seems thus. It has been held that the doctrine ought to be treated and applied with caution. (See, Twaha Elias Mwandungu v. Republic [2000] T.L.R. 277 and Nathanael Alphonce Mapunda and Another v. Republic [2006] T.L.R. 395). There is also the fact that for the doctrine above to apply, it has to be corroborated by other evidence as stated in the case of Japhet Kalanga v. Republic, Criminal Appeal No. 332 of 2016 (unreported). Having gone through the evidence as recounted above, we are satisfied that there is no evidence that gives credence to assertions for us to invoke the doctrine of the last person to be seen with the deceased against the 1st appellant. In the premises, as we have endeavoured to address, although satisfied that the death of the Zaituni Saimoni was unnatural, the prosecution failed to prove beyond reasonable doubt that it is the appellants who caused it. Consequently, we allow the appeal. We order that the appellants be set at liberty unless held for other lawful cause. DATED at MBEYA this 20th day of February, 2025. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 21st day of February, 2025 in presence of Mr. Steward Ngwale, learned counsel for the Appellant and Ms. Upendo Lyimo, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original.