CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MUGASHA. 3.A., KHAMIS, J.A. And ISMAIL, 3.A.1 CRIMINAL APPEAL NO. 325 OF 2022 JOHANES SILILO @KAMIHANDA.......... ............... ................... 1st APPELLANT GODIANI GAMGWERA.................... .......... .............................2nd APPELLANT FREDERINA SILILO......... .................... .................... ..............3rd APPELLANT SILILO SABASABA @ KAMIHANDA......... .... ...................... 4th APPELLANT SILILO KABEBA................................... ........................... .......5th APPELLANT VERSUS THE REPUBLIC................................... ......................... .............RESPONDENT (Appeal from the Judgment of the Resident Magistrate Court Of Bukoba at Bukoba) fTesha, SRM EXT-JURDS^ dated the 31st day of March, 2022 in Criminal Session Case No. 26 of 2019 JUDGMENT OF THE COURT 28th November & 2nd December, 2024 MUGASHA, J.A.; Before the Resident Magistrate with extended jurisdiction, the appellants were arraigned as hereunder: " STATEMENT OF THE OFFENCE: ATTEMPT TO MURDER c/s 211 (a) AND of the Penal Code, Cap 16R.E200Z l PARTICULARS OF OFFENCE: That LAURIAN S/0 SILVANUS MUGOGO @BIGONDE, GABRIEL 5/0 RUKAWENSHONI, JOHANES S/0 SILILO @ KAMIHANDA, GODIAN S/0 GAMGWELA, FRIDERINA W/O SILILO, SILILO S/O SABASABA, @KAMUHANDA and SILIO S/0 KABEBA on the 2$h day o f August,2017 during morning hours at Kashanda village within Ngara District in Kagera Region did attempt to murder one Charles Bechumila Biera. The appellants did not plead guilty. In order to prove its case, the prosecution paraded six witnesses and tendered documentary and physical exhibits namely, the motorcycle registration card (PI), inspection letter from Tanzania Revenue Authority of the motorcycle (P2), PF3 of the victim, Charles Bichumula (P4) and a motor cycle with registration No. MC 842 AWP SANYA and five spears. On the part of the defence, thirteen witnesses including the appellants testified and tendered three documents to wit a school fees payment receipt, bus tickets to and from Karagwe to Dar-es- salaam exhibits Dl, D2 and D3 respectively. The background of the appeal is as follows: In 2017 when PW1 was a councillor at Nyakahanga Ward, on the 29/8/2017 2017 the District Commissioner for Karagwe convened a meeting with the committees for 2 security and defence and the Ward Development. The purpose of the meeting was to discuss the dispute between Pastoralists and Farmers. This involved a fact finding expedition to Nyakahanga village involving two teams. According to Charles Gerald Bachubila (PW1), he led the first team and the other team was led by the District Commissioner. While heading to the disputed area, it is alleged that a group of people armed with spears, machetes and arrows surfaced from the forest and attacked PW1 who sustained injuries on the armpits and the hip. Initially, PW1 stated that he was not able to identify attackers as stones were thrown towards him. The attackers disappeared after hearing a gunshot leaving behind PW1 lying on the ground until when G.3317 D/CPL Dennis surfaced together with a militiaman. PW1 recalled that, at that time he was unable to do anything until when Denis (PW4) a militiaman who was with the other team surfaced at the scene of crime. PW4 recalled that before he lost consciousness, PW1 mentioned the attackers to be Sililo's children and their workers without specifying which Sililo he was referring to given that the 4th and 5th appellants bear the surname of Sililo. However, Inspector Agnes Kaiza (PW2) who was in another team had a different version having stated that, PW1 told them that the attackers were Sililo, his wife and two children. Again, PW1 did not mention if Sililo was the 4th or 5th appellant. Another version as to who attacked PW1 eame from Benard Ndutura, PW5 who recalled that while at the hospital, PW1 mentioned Sililo Kamihanda, Sililo Kabeba, Godian Gamgwera and children of Sililo Kamihanda. Whereas PW1 was taken to the hospital, the appellants were arrested, taken to Kayanga Police Station, interrogated and finally arraigned in court on accusations that they attempted to murder PW1. On the hand, the appellants denied each and every detail of the prosecution account. They all raised the defence of alibi and each stated his/her whereabouts on the date and time of the occurrence of the fateful incident. The 1st appellant stated that he is a student and that on material day, he was at Gracious Secondary School in Ngara District. The 2nd appellant claimed to have been at Rushanji area, Wandalu Village to attend his ailing son who later died which was confirmed by his brother Philbert Gamgwera who testified as DW6 at the trial. The 3rd appellant stated that on the fateful day, she was at his parents' home attending her sick mother as supported by Hosea Mabaramaji (DW8). He added that, she was arrested on 7/11/2017 after raising an alarm at a public gathering seeking to draw the attention of the President on her house which was broken into. The 4th appellant stated that on material date and time, he went to Nyaishozi Secondary School to pay School Fees as per receipt exhibited as D1 which was flanked by Atira Benet, a teacher who testified as DW11; and the 5th appellant who claimed to have travelled to Dar-es-salaam produced a bus ticket in that regard (exhibit D2). At the conclusion of the trial, the trial court was convinced by the prosecution evidence that the case against the appellants was proved at the required standard. The appellants were found guilty, convicted and sentenced to life imprisonment. Undaunted, the appellants have knocked the doors of the Court seeking to demonstrate their innocence. However, we shall not reproduce the grounds of appeal on account of what will be apparent in due course. At the hearing, the appellant was represented by Messrs. Erick Martin Mutta and Ibrahim Mswadick, learned counsel. The respondent Republic had the services of Ms. Immaculate Mapunda and Ms. Wampumbulya Shani, both learned Senior State Attorneys alongside Mr. Enosh Gabriel Kigorya, learned State Attorney. Before proceeding to hear the appeal, we wanted to satisfy ourselves if the Resident Magistrate with Extended jurisdiction was properly conferred with jurisdiction to try the criminal session case which is a subject of the present appeal. Upon taking the floor, Ms. Shani submitted that, the Resident Magistrate with Extended jurisdiction, Luambano RM, was not conferred with original jurisdiction to try a homicide case because the transfer of the case file was predicated under section 45 (2) of the Magistrates' Courts Act [CAP 11 R.E 2019] instead of section 256A (1) of the Criminal Procedure Act [CAP 20 R.E 2019] (the CPA). Yet, she added, the re-assignment of the case file by the Judge In charge to Tesha SRM with extended jurisdiction was improper because there was nothing before the High Court to be reassigned since the file was still before Luambano,SRM with extended juridiction in the registry of Resident Magistrates' Court. On account of the stated anomalies, Ms. Shani implored on us to nullify the entire trial proceedings and return the case file to the High Court for it to conduct a retrial on ground that, on the record there is sufficient evidence to ground the conviction of the appellants. To bolster her argument, she cited to us the cases of NICHOLAUS MGONJA @ MAKAA VS THE REPUBLIC, Criminal Appeal No. 265 of 2016 and ABEID YAHAYA VS REPUBLIC, Criminal Appeal No. 549 of 2016 (both unreported) whereby confronted with akin scenarios, the Court ordered a retrial. Upon being probed, on a reflection, she conceded that a retrial is not worthy given the weak and insufficient prosecution account. On the other hand, the learned counsel for the appellant subscribed to the submission of the learned Senior State Attorney to the effect that the trial proceedings are a nullity and that a retrial is not worthy. They added that, the prosecution account is weak because the appellants were not properly identified and that the trial court relied on documentary and oral evidence which was not earlier on made known to the appellants at the committal stage, The respective evidence was in relation to the motorcycle registration card, a letter from TRA and the PF3 authored by Dr. Patrick Bigambe who testified as PW6. It was thus argued that, in the absence such evidence being adduced as additional in terms of section 289(1) of the CPA, such evidence deserves to be expunged from the record. On account of the said lapses in the prosecution account, it was argued by the learned counsel that a retrial is unworthy as it will enable the prosecution to fill in the glaring evidential gaps. Ultimately, the learned counsel urged us to set the appellants at liberty. Having gone through the record of appeal, we have to determine the propriety or otherwise of the trial proceedings and chart out the way forward. Initially, the appellants' case to the High Court was registered as Criminal Session case No. 41 of 2019. The High Court purportedly transferred the case to be heard and determined by Hon. Josephat D Lwambano Senior Resident Magistrate (extended Jurisdiction). The said transfer order reads as follows: "Date:23/10/2019 Coram: Hon. LG. Kairo, J. Patties: Absent Court: Pursuant to the provision o f section 45 (2) of the Magistrate CourtAct Cap 11 R:E2002 I hereby re-assign this Criminal session case No. 41 o f 2019 to be heard and determined by Hon. Josephat D. Lwambano (SRM-ESQ) with Extended jurisdiction It is so ordered/! The record shows that Hon. Josephat D Lwambano SRM presided over the case, in the plea taking and preliminary hearing. Later, another transfer order was issued by the High Court as reflected at 70 of the record of appeal "Date: 4/3/2022 Coram: Hon. Dr. N.N. Kiiekamajenga, J. Parties: Absent Court: Pursuant to the provision o f section 45(2) of the Magistrate CourtAct Cap 11 R.E2002. I hereby re-assigned this Criminal Session No. 26 of 2019 to be heard and determined by Hon. Terry Sophia. C. Tesha (SRM-ESQ) with Extended Jurisdiction It is so ordered" Thus, the trial was presided by Hon. Terry Sophia C. Tesha, the Resident Magistrate with Extended Jurisdiction, pursuant to the subsequent transfer order which was also wrongly predicated under the provisions of section 45(2) of the Magistrates' Courts Act Cap 11 R.E.2019 (the MCA) which stipulates: "The High Court may direct that an appeal instituted in the High Court be transferred to and be heard by a resident magistrate upon whom extended Jurisdiction has been conferred by section 45(1)” Under the cited provision, a specified magistrate is conferred with extended appellate jurisdiction to preside over and exercise jurisdiction ordinarily exercisable by the High Court to preside over appeals from subordinate courts. In respect of cases in which the High Court is mandated with original jurisdiction, the High Court is vested with discretion 9 to transfer such cases to RM with extended jurisdiction in terms of section 256A of the CPA which provides: "256A.-(1) The High Court may direct that the taking o fa piea and the triai o f an accused person committed for trial by the High Court, be transferred to, and be conducted by a resident magistrate upon whom extendedjurisdiction has been granted under subsection (1) o fsection 173," In that regard section 173 (b) of the CPA, invests in the RM with extended jurisdiction powers to try any specified case or cases of such offences and specified in the order to impose any sentence which could lawfully be imposed by the High Court. Yet, the applicability of both sections 256A of the CPA and Section 45(2) of the MCA was emphasised in the case of ABDALLAH RAMADHANI @ SINDANO VS REPUBLIC, Criminal Appeal No. 184 of 2022. The Court categorically stated as follows; "Two main significant provisions relate to transferring the cases triable by the High Court. The provisions are sections 256A (1) o f the CPA and 45 (1) and (2) of the MCA. Starting with the provision o f section 256A (1) o f the CPA ...From the wording o f the provision, the transfer envisaged here is that o f cases triable by 10 the High Court, which involves plea taking and trial. One such situation is murder trials, in which the Judge in-charge retying on section 256 A (1) o f the CPA could transfer the case to the Resident Magistrate with Extended Jurisdiction in RM’s court to carry out the assignment Such transfer is appropriate and in line with what has been provided by the provision. ...Another transfer instance is under section 45 (2) o f the MCA, Under the provision, the appeals that the High Court ordinarily hears could be transferred to the Resident Magistrate's Court to be attended by a Resident Magistrate with extended Jurisdiction. See also the cases of HAMIS SAID (§> JUMA VS REPUBLIC, Criminal Appeal No. 627 Of 2021, and, ABRAHAMAN RAMADHANI @ CHINO VS REPUBLIC, Criminal Appeal No. 130 of 2013. In view of the stated position of the law, in the present case the transfer predicated under section 45(2) of the MCA did not confer jurisdiction on the RM to determine the matter at hand and as such, the RM with extended jurisdiction embarked on a nullity to try the criminal case which is a subject of this appeal. In the circumstances, given the fatal omission in the transfer orders, none of the two magistrates with extended jurisdiction was clothed with jurisdiction to preside over the plea taking or the trial. In a nutshell, there was no transfer whatsoever of the case file from the High Court to any of the Resident Magistrate with extended jurisdiction. On account of the above stated omission, ordinarily, we would have ordered the case file to be remitted to the High Court for it to conduct an expedited trial in accordance with the law. However, we agree with the learned counsel for either side that a retrial is unworthy. We say so given the circumstances warranting an order of a retrial as expounded by the Eastern African Court of Appeal in the case of FATEHA ll MAN3I VS REPUBLIC [1966] E A 343. The Court said thus, "a retrial w iii be ordered only when the original trial was illegal or defective. It will not be ordered that the conviction be set aside because o f insufficiency o f evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial. Even where a conviction is 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 oniy be made where the interests ofjustice require." 12 Having considered the glaring lapses in the prosecution evidence on the record and the stated position of the law on grounds prompting a retrial, we do not think that a retrial is worthy because the prosecution would utilise the opportunity to fill in the evidential gaps. We shall demonstrate. The strength of the prosecution account hinged on the evidence on visual identification of those who attacked PW1. It is settled law that evidence on visual identification is of weakest kind and it should not be acted upon to convict unless the possibilities on unmistaken identification are eliminated. See: WAZIRI AMANI VS REPUBLIC [1980] TLR 250 and RAYMOND FRANCIS VS REPUBLIC [1994] TLR 100 In the present case, the evidence on visual identification is wanting in the wake of the contradictory prosecution account. Beginning with PW1, he gave a contradictory account as to who attacked him. Besides claiming that the attackers were in a mob holding spears and machetes and he did not recognise any them, in another instance PW1 stated that he was attacked by the 1st, 2nd and 5th appellants. Such contradictory account from a crucial witness rendered PWl's account incredible and of no evidential value. In this regard, the evidence given PW2, PW4 and PW5 sourced from the discrepant account of PWl, is purely hearsay with no evidential value. That apart, PW2, PW4 and PW5 who claimed to have been told by PW1 on the persons who attacked him on the fateful incident, their evidence leaves a lot to be desired and it is at variance and contradicts PWl's account. Whereas PW4 stated that PWl mentioned the attackers to be Sililo children and their workers; PW2 stated that the attackers were Sililo, her wife and two children, Yet, PW5 testified that, while at the hospital PWl mentioned the attackers to be Sililo Kamianda, Sililo Kabebe, Godian Gamgwera and children of Sililo Kamanda. From this account, it is not known as to which children of Sililo were being referred to by the prosecution witnesses given that the 3rd,4th, and 5th appellants bear the surname of Sitilo. Therefore, the contradictory account in respect of visual identification did not eliminate the possibilities of mistaken identification of the appellants. In a nutshell, none of the appellants was positively identified at the scene of crime. We have also gathered that the trial court wrongly acted on evidence which was not properly before it to convict the appellants. The respective evidence was the PF3 of PWl and PW6 who authored it, the motorcycle registration card and the TRA letter inquiring on the owner of the motorcycle. These were not initially introduced at the committal stage as per the dictates of section 246 (2) of the CPA which enjoins the committal 14 court to ensure that the substance of the evidence to be relied upon by the prosecution at the trial is made known to the accused at the committal stage or else it cannot be acted upon unless introduced at the trial as additional evidence in terms of section 289 (1) of the CPA. Therefore exhibits PI, P2 and P4 deserve to be expunged as we hereby do. Consequently, in the absence of the expunged evidence, there is insufficient evidence to establish the extent of the injuries sustained by the PW1. Besides, there is no evidence to connect the 4th appellant with the abandoned motorcycle. Finally, we have gathered that, the defence of alibi adduced by the appellants though not given the deserving attention by the trial court clouded the prosecution with heavy doubt and it was not controverted at all. This entitles the appellants to the benefit of doubt. It is in view of aforegoing, we initially pointed out that the prosecution evidence is wanting and a retrial is unworthy because it will be utilised by the prosecution to fill in the evidence gaps and thus prejudice the appellant which is against the intent and purpose of a retrial. We did so in the case of JOSEPH LEONARD MANYOTA VS REPUBLIC, Criminal Appeal No. 485 of 2015 (unreported). In that case, although the Court found that the case file was wrongly transferred to the RM with extended jurisdiction to conduct a criminal session case, it declined to order a retrial on account of insufficient prosecution evidence on the record. In view of what we have endeavoured to discuss, we invoke our revisional powers under section 4 (2) of the Appellate Jurisdiction Act [CAP 141 R.E 2022], nullify the entire proceedings, quash and set aside the conviction and sentence meted on the appellants. Consequently, we order the immediate release of the appellants unless if they are held for other lawful cause. DATED at BUKOBA this 30th day of November, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 2nd day of December, 2024 in the presence of Mr. Ibrahim Mswadick, learned counsel for the Appellants and Ms. Evaresta Kimaro, Ms. Matrilda Assey, both learned State Attorneys for the respondent / Republic, is hereby certified as a true copy of the original.