20150223 TZCA Bukoba

IN THE COURT OF APPEAL OF TANZANIA

AT BUKOBA rCO RAM: KIMARO. J.A.. LUANPA.J.A.. And JUMA.J.A. CRIMINAL APPEAL NO. 124 OF 2014 MULOKOZI ANATORY............................................ ............ APPELLANT

VERSUS THE REPUBLIC..........................................................................RESPONDENT (Appeal from the Conviction and Judgment of the High Court of Tanzania at Bukoba) (Miemmas, 3.) dated the 6th day of March 2014 in Criminal Sessions Case No. 58/2010

JUDGMENT OF THE COURT 10th &24th day of February,2015 LUANDA. J.A.: In the High Court of Tanzania (Bukoba Registry) at Bukoba, the appellant was arraigned on a charge of murder. The prosecution had alleged that on 17th January, 2010 at Kigarama village within Karagwe District in Kagera Region the appellant murdered Shukuru s/o Telesphory. After full trial the appellant was convicted as charged and he was sentenced to suffer death by hanging. Aggrieved by the finding of the trial High Court, he has preferred this appeal in this Court. i In this appeal, Mr. Mathias Rweyemamu learned Counsel represented the appellant; whereas Mr. Alyoce Mbunito learned State Attorney appeared for the respondent Republic. Mr. Mbunito supported the conviction and sentence meted out to the appellant. Mr.Rweyemamu has raised two grounds of appeal in the memorandum of appeal which run as follows:- 1. That the trial Judge erred in law and fact in that he failed to direct each gentle assessor to give separate opinion as a result the conviction and Judgment delivered and based on common opinion o f gentle assessors is nullity on the eyes o f the law.

2. That the trial Judge grossly erred in law and fact to base the conviction on the caution statement which was induced by threat and torture. The prosecution side built their case from four witnesses namely Liberius s/o Pastory (PW1), Sperius s/o Bibangamba (PW2), Raimond s/o Cornel (PW3) and D7759 D/CPL Ahamed (PW4). Briefly the prosecution case was to this effect:- A week or so before the deceased (Shukuru Telesphory) went missing, PW1 while grazing cattle during day time saw the appellant and the deceased going towards Rutunguru village. The two were familiar to PW1. The deceased asked PW1 to join them, but PW1 declined to do so as he was busy looking after cattle. That was the last day he had seen the deceased. The deceased went missing. When he heard about that information, of the missing of the deceased, he volunteered to tell the deceased's father about seeing the appellant and the deceased walking towards Rutunguru village. The information reached the village leadership whereby search commenced. The villagers divided into groups. Their efforts paid dividend as the deceased was found but already dead. The police were informed. The police went to the scene with a doctor who examined the body which had some parts missing like penis, ear, tongue. The body was taken and eventually buried. However, on the day of burial, information was circulating in the village that the

appellant was the one who caused the death of the deceased. He was arrested and when queried he spill the beans by mentioning Mwarabu and Batuka as the people with whom he cooperated with to kill the deceased. The two appeared before the village gathering. The villagers were angry, they started stoning the three. While the three were being stoned, police arrived upon receiving a telephone call. Among the police officers who went there was PW4. On arrival, they saw three bodies of human being lying on the road. Mwarabu and Batuka were dead already. But when the police went close to the appellant, the appellant woke up and sat down. And when he saw the police van, he embarked on it and thanked the police for rescuring him and asked them to send him to hospital which police did. It is the evidence of PW4 that while in hospital, the appellant told him the story. When PW4 realized that the appellant was telling him about how the deceased met his death, he cautioned him and took his statement. The same was admitted after the court had conducted a trial within trial. On the other hand the appellant denied to have caused the death of the deceased. The trial High Court was satisfied beyond any shadow of doubt that it was the appellant in conjunction with his two colleagues who were stoned to death who murdered the deceased. The High Court relied on the cautioned statement of the

appellant to ground conviction. As stated earlier on, Mr. Rweyemamu raised two grounds. But first he reiterated the importance of the High Court to sit with assessors as is provided under S. 265 of the Criminal Producer Act, Cap. 20 RE. 2002 (the Act). He then took us to the record of appeal pages 71 - 74 which reads as follows, we reproduce " Gentlemen assessors and lady assessor,, I now invite you; to give me your opinions whether the prosecution has proved their case against the accused person hence being guilty o f the charge. But should your minds entertain doubts about the totality o f the evidence adduced, please do not hesitate to opine that the evidence has not proved the prosecution case to the required standard and that the accused could not be convicted o f having murdered Shukuru Telepsphory. The option is vours. Should vou wish to make vour opinions right awav or should vou wish to retire and consult each other before vou are ready to give vour opinions the law allows vou to consult each other as you wish. Thank vou. [Emphasis ours]. G.J. Mjemmas

JUDGE 03.03.2014 MS. Oliva Jonstone: We pray to be given time to discuss the matter among ourselves. Mr. Stephen Baaeni: That's correct. Mr. Peter Rwechunaura;That's correct. Order: Prayer by honourable assessors granted. Hearing is adjourned for half an hour. Accused to be remanded in custody till then. GJ. Mjemmas

JUDGE 03.03.2014 03.03.2014 Coram: G.J.K. Mjemmas, J. Mr. A. Matuma- State Attorney for the Republic Mr. Mathias Rweyemamu - Defence Counsel for the accused person Accused (name) Mulokozi Anatory- present under custody and represented by Mr. Mathias Rweyemamu, Advocate. Assesors: 1. Oliva Jonstone 2. Stephen Bageni > A ll present 3. Peter Rwechungura Mr. Matuma: Hon. Judge, the case is coming up for receiving assessors' opinions. Court: Assessors to deliver their opinion. G.J. Mjemmas

JUDGE 03.03.2014 ASESSORS' VERDICT Ms. Oliva Jonstone: Mr. Setphen Bugeni will deliver ourjoint opinion Mr. Peter Rwechunaura: That's correct. Mr.Stephen Bageni : Hon. Judge, after hearing the evidence from the prosecution and the defence we wish to ask a question. Is Shukuru Tetesphory dead or not. The answer is in the affirmative. He is dead. From circumstantial evidence they said Shukuru Teiephory was last seen alive with the accused Mulokozi. Why Mulokozi shouldn't be found guilty. It is our opinion that Mulokozi should be found guilty. PW1 did not see the accused kill the deceased but he saw them together. There is also the evidence o f PW4. Hon. Judge, from the circumstantial evidence such killings are rampant in this District so we urge that legal measure should be taken. Thank you. Order: Judgment on 06-3-2014 Accused to be remanded into custody. GJ..K.Mjemmas

JUDGE 03/03/2014." He then argued the first ground which has two limbs. One, he said it was wrong for the learned High Court Judge to allow assessors to retire and consult as section 298(1) of the Act does not permit such course. That was misdirection on the part of the learned Judge. Two, he said the same section imposes a duty upon the trial High Court Judge to take opinion of each assessor orally and record them separately. To allow all assessors to agree on one verdict, and the same be presented by one of them in this case is not proper. It goes contrary to S. 298(1) of the Act. He referred us to the decision of this Court in R V Crospery Ntagalinda @Koro, Criminal Appeal No. 73 of 2014 (unreported). We wish to point out right away that the issue in the above cited case is not relevant to the present case. In that case the issue of law discussed was whether assessors are permitted to cross- examine witnesses which is being governed by S. 177 of the Evidence Act, Cap. 6 RE. 2002 and which is not relevant with our issue under discussion. Be that as it may, Mr.Rweyemamu said non compliance with S. 298(1) of the Act vitiates the proceedings. So, he prayed that we make a declaration that the proceedings are a nullity. 9 Responding to this ground, Mr. Mbunito in the first place join hands with Mr.Rweyemamu that the learned trial High Court allowed the assessors to retire and

consult. But, he went on to say, the learned Judge was not wrong to do that as S.298(4) of the Act permits the assessors to retire and consult. Turning to the second limb, Mr. Mbunito also said it is true that the learned Judge did not comply with S. 298(1) of the Act in taking the opinion of assessors orally and record them separately. In this case the assessors consulted and thereafter one stated the opinion on behalf of others. Mr. Mbunito said that was wrong. But he was quick to point out that the irregularity or omission did not occasion any miscarriage of justice on the part of appellant notwithstanding the word "shall" is deployed. Mr. Mbunito said as no injustice was occasioned on the part of the appellant, it is not proper therefore to declare the entire proceedings a nullity. In rejoinder Mr. Rwyemamu said the law must be followed to the latter. We start with whether the law permits the assessors to retire and consult. This should not detain us. As correctly submitted by Mr. Mbunito, S. 298(4)of the Act is clear. It allows such course. The sub-section reads:- 10 298(4) Nothing in this section shall be construed as prohibiting the assessors or any o f them from retiring to consider their opinion if they so wish or during such retirement or at any time during the trial from consultation with one another. Next is whether the law permits assessors to agree on one verdit

and the same be presented by one assessor. It is on record that after the assessors had returned, following their request for consultation; they told the court that one of them will deliver their joint opinion. Indeed, one of them did that. But S. 298 (1) of the Act demand that each assessor shall separately state his own opinion. The section reads:- 298(1) When the case on both side is dosed, the judge may sum up the evidence for the prosecution and the defence and shall then require each o f the assessors to state his opinion orally as to the case generally as to any specific question o f fact adduced to him by the judge and record the opinion. ii We wish first to say in passing that though the word "may" is used implying it is not mandatory for the trial judge to sum up the case to the assessors but as a matter of long established practice and to give effect to S. 265 of the Act that all trials before the High Court shall be with aid of assessors, trial judges sitting with assessors have invariably been summing up the cases to the assessors. (See Khamis Nassoro Shomar v. S.M. Z [ 2005] TLR 228 and Hatibu Gandhi VR [1996] TLR12). Back to our case. In our case the judge didn't comply with the above cited section which require each assessor to separately state his own opinion. But it is not in dispute that they gave their opinions. In Francis Juma s/o Musungu VR [1958] EA 192

the case originating from Kenya the defunct Court of Appeal for Eastern Africa was faced with almost similar situation. The facts were that after the trial Judge had summed up the case, the assessors retired and conferred together. On returning to court, the first assessor stated "we all agree that accused is guilty" but the others were not asked to confirm this statement and did not speak individually. 12 S. 381 of Criminal Procedure Code of Kenya requires each assessor to state his own opinion orally and individually like our Criminal Procedure Act. The Court said:- "The wording o f s. 318 o f the Criminal Procedure Code, in providing that the judge "shall then require each o f the assessors to state his opinion orally, and shall record such opinion," clearly contemplates and, we think, requires that each assessor shall separately state his own opinion." It finally concluded thus:- "l/I/e were, however o f opinion that this irregularity was curable under the provisions o f S. 381 o f the Code." It is no doubt that the then Court o f Appeal for Eastern Africa took that stand because the irregularity did not in any way occasioned any miscarriage o fjustice on the part o f the appellant. In our case, it is clear that the assessors did not comply with the law in that each assessor to state his own opinion orally and individually. But they gave their opinions. We do not think that

that; irregularity or omission in this case, had prejudiced the appellant and occasioned any miscarriage of justice to warrant nullifying the entire proceedings. Before pronouncing any proceeding in a criminal case to be a nullity, it must be shown that the irregularity was such that it prejudiced the accused and therefore occasioned failure of justice (See Michael Luhiye VR [1994] TLR 181) Since in this case the appellant did not show the irregularity or omission to have prejudiced him and therefore occasioned any miscarriage of justice, we are not prepared to go along with Mr.Rweyemamu in nullifying the entire proceedings. Further, the error complained of is not material at all. In terms of Rule 115 of the Court of Appeal Rules,2009 we are precluded from revising or make any substantial charge or ordering a retrial on account of such error. The Rule reads 115. No judgment, decree or order o f the High Court shall be revised or substantially varied on appeal\ nor a new trial ordered by the Court, on account o f any error, defect or irregularity, whether in the decision or otherwise, not affecting the merits, or the jurisdiction o f the High Court; and in the case o f a second appeal this Rule shall be construed as applying to both the trial Court and the first appellate Court. The first ground is devoid of merits. Turning to the second ground, Mr. Rweyemamu said the

appellants was not free agent when he gave his cautioned statement; he was tortured. In any case he said the evidence is weak. Responding Mr. Mbunito said there was no torture. The appellant gave the statement on his own volition. Before the cautioned statement was admitted in Court, a trial within trial was conducted to ascertain whether the appellant gave the statement on his own free will. The trial learned judge was satisfied that the appellant gave it voluntarily. The Judge further went on to see the 15 contents of the statement. He was satisfied that what is contained therein is nothing than the truth. He said, inter alia, thus. "Those details could only be explained or given by a person who had direct knowledge o f what happened or who actually participated in the commission o f the offence." As regards to whether PW4 the police officer, who took the statement did it with any malice he was satisfied that he had no bad motive or any grudge. We have carefully gone through the record. The learned trial Judge properly addressed himself as to how to treat retracted or repudiated confession. In this case although retracted, the appellant did not deny to give it but said he was tortured. With respect, we entirely agree with his reasons that the appellant was not tortured. In fine like the learned trial Judge we are satisfied that the appellant gave the statement voluntarily. In the said statement, the appellant confessed to have killed the deceased in collaboration with his colleagues. 16 This ground too has no merit. The appellant was properly convicted and sentenced. We dismissed the appeal. DATED at BUKOBA this day of 23rd February, 2015. N.P.KIMARO

JUSTICE OF APPEAL B.M. LUANDA

JUSTICE OF APPEAL I.H. JUMA 17