CRIMINAL APPEAL NO 318 OF 2020 MUSA KANYERERE VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: WAM BALI. J.A.. KIHWELO. 3.A. And ISSA. J-A.l CRIMINAL APPEAL NO. 318 OF 2020 MUSA KANYERERE...................................................................... APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Ism aiLJJ dated the 25th day of June, 2020 in Criminal Sessions Case No. 163 of 2016 JUDGMENT OF THE COURT 8th & 18th July, 2024 ISSA, J.A.: The appellant, Musa Kanyerere was arraigned before the High Court (the trial court) sitting at Mwanza in Criminal Sessions Case No. 163 of 2016 for the offence of murder contrary to section 196 of the Penal Code, Cap. 16. The appellant was therefore tried and convicted as charged and sentenced to death by hanging. Aggrieved with the conviction, the appellant lodged the instant appeal. The prosecution case against the appellant was that, on 18th November 2014 at 5.00 hours at Sese Village within Magu District in Mwanza Region, the appellant murdered his mother in law, Helena Hilomeji (the deceased). He pleaded not guilty to the charge. The prosecution paraded three witnesses to prove the charge, and after full trial he was convicted as charged and sentenced as stated earlier. For a reason that will become apparent shortly, we find unnecessary to explore the factual settings giving rise to the appellant's conviction and sentence. Aggrieved by the conviction, the appellant lodged a memorandum of appeal containing eight grounds of appeal. However, on 27th June, 2024 Mr. Kassim Seleman Gilla, learned advocate who was assigned to represent the appellant, in terms of rule 73 (2) of the Tanzania Court of Appeal Rules, 2009 lodged a supplementary memorandum of appeal containing three grounds of appeal in substitution of the appellant's memorandum of appeal lodged earlier on. The three grounds of appeal go thus: 1. The committal proceedings were fatally defective as the statement and documents forming part o f the prosecution's evidence were not read to the accused person, hence, contravening the mandatory provisions o f section 246(2) and (3) o f the Criminal Procedure Act, Cap. 20 R.E. 2022. 2. That, the trial court erred in law and facts in convicting the appellant basing on uncorroborated Exhibit P3 (cautioned statement) which was also taken beyond four hours from the time o f the arrest. 3. That, the trial court erred in law and facts in convicting the appellant o f the offence charged while the prosecution case was not proved beyond reasonable doubt When the appeal was called on for hearing, the appellant was present in person and had the services of Mr. Kassim Seleman Gilla, learned advocate whereas the respondent Republic was represented by Ms. Magreth Bernard Mwaseba, learned Senior State Attorney. Mr. Gilla started his submission by arguing the first ground of appeal and intimated that the second and third grounds of appeal will be argued as alternatives. For the first ground, Mr. Gilla faulted the District Magistrate Court (the committal court) for the failure to conduct the committal proceedings in accordance with section 246 of the Criminal Procedure Act, Cap. 20 (the CPA). He argued that, the statements of the witnesses and exhibits which were expected to be tendered at the trial were not read over during committal proceedings and thus were null and void. He, therefore, urged the Court to nullify the proceedings from 21st October, 2016 when the committal proceedings started to 25th June, 2020 when the judgment of the trial court was delivered. As a way forward, he prayed to the Court to order that a fresh committal proceedings be conducted by the committal court. In response, Ms. Mwaseba out-rightly supported the appeal on the first ground. Ms. Mwaseba's argument in support of the appeal is that, the record of appeal is very clear that committal proceedings were irregular because: One, the provision used for committal was section 245 of the CPA instead of section 246. Two, the committal court did not comply with section 246 (2) of the CPA as the substance of the evidence of all witnesses for the prosecution was not read over. She therefore implored the Court to invoke its power under section 4(2) of the Appellate jurisdiction Act, Cap.141 (the AJA) to nullify the committal court proceedings together with those of the trial court, quash conviction and set aside the sentence and remit the file to the committal court to start the committal proceedings afresh. She fortified her proposition by referring to our decision in Malocha Kalinji @ Venus & Another v. The Director of Public Prosecutions (Criminal Appeal No. 238 of 2019) [2023] 7ZCA 17717 (4 October 2023, TANZLII). In rejoinder, Mr. Gilla reiterated his earlier submission and urged the Court to follow the path which was followed in the case of Malocha Kalinji (supra). The issue for our determination in the instant appeal is whether the committal proceedings were conducted in accordance with the law and if not what is the way forward. Section 246 of the CPA is the guiding provision on this matter and it provides: "(1) Upon receipt o f the copy o f the Information and the notice; the subordinate court shaii summon the accused person from remand prison, or if not yet arrested, order his arrest and appearance before it and deiiver him or to his counsei a copy o f the information and notice of trial delivered to it under subsection (7) o f section 245 and commit him for trial by the court; and the committal order shall be sufficient authority for the person in charge o f the remand prison concerned to remove the accused person from prison on the specified date and to facilitate his appearance before the court. (2) Upon appearance o f the accused person before it, the subordinate court shall read and explain or cause to be read to the accusedperson the (3) information brought against him as weii as the statements or documents containing the substance o f the evidence o f witnesses whom the Director o f Pubiic Prosecutions intends to caii at the trial,\ (4) After compiying with the provision o f subsections (1) and (2) the Court shaii address the accused person in the foiiowing words or words to the iike effect: "You have now heard the substance o f the evidence that the.prosecution intends to caii at your triaL You may either reserve your defence, which you are at liberty to do, or say anything which you may wish to say relevant to the charge against you Anything you say wiii be taken down and may be used in 1' % * evidence at your trial\" (5) N/A (6) N/A (7) N /A" This provision entails that, in the conduct of committal proceedings, the committing magistrate must comply with four essential conditions. One, once the magistrate receives the information for* committal purpose, he is required to summon the accused person to appear before it. Two, he has to supply to the accused person or his advocate the copy of the information and notice of trial and then commit the accused for trial. Three, the committal court is required to read and explain to the accused person, the charge brought against him, the statements of witnesses and the documents containing the substance of the evidence. Four, the committal court is required to address the accused person to the effect that he may reserve his defence or say whatever he may wish which is relevant to the charge, but whatever he says will be taken down and may be used as evidence at the trial. The crucial question thus, is whether the committal court complied with any of the above stated conditions. For the sake of clarity, let us reproduce what the committal court recorded at page 24 of the record of appeal: "Public prosecutor: Case for committalproceedings I pray to proceed Court: Prayers granted. Committal Proceedings u/s 245(6) CPA [Cap. 20 R.E 2002] commences. i Public prosecutor: The accused shall face trial for murder c/s 196 & 197 o f the Penal Code [Cap. 16 R.E 2002]. ? * The prosecution case shall be supported by the following witnesses: (i) Sabina Magobe of Sese village (ii) Keya Mgwilomeji o f Fumagila Igoma Ward (iii) E 2496 D/CPL Magesa of Nyakato Police Station (iv)Ass. Insp. Emmanuel Rodgers, Police Officer at Misungwi (v) Madala Mussa ofSese village - Magu. Intended prosecution exhibits: (I) Cautioned statement o f the accused (ii) Postmortem Examination Report (Hi) Sketch map o f the scene o f crime DEFENCE CASE Accused: I shall call no witness, your honour, I pray for free iegal service from the Government ORDERS (i) Under section 245o f the Criminal Procedure Act [Cap. 20 R.E 2002 the accused person is committed for trial before the High Court at the next session the date o f which shall be communicated to the accused by the Deputy Registrar o f the High Court. (ii) The accused shall have free authentic copy o f this committalproceedings as soon it is typed. (iii) The accused shall have free legal services, from the Government (iv) Until such time, the accused is called for trial before the High Court he shall remain in custody." Glancing at the above excerpt, we have no hesitation in declaring that section 246 of the CPA was not complied by the committal court. We shall explain. The information was not read and explained to the appellant as required, the statement and documents containing the substance of witnesses evidence were not read. This was a violation of section 246(2) of CPA. Further, the appellant was not addressed by the committal court to the effect that he may reserve his defence or say whatever he may wish which is relevant to the charge, and that whatever he says will be taken down and may be used as evidence at the trial. This omission is a contravention of section 246(3) of the CPA. The position of law on this aspect is very dear. The Court in Alfan Apolinary @ Kyalubota and 3 Others v. The Republic (Criminal Appeal No. 164 of 2021) [2023] TZCA 17579 (31 August 2023, TANZLII) stated: "... mere listing o f the names o f witnesses and exhibits for prosecution does not amount to compliance with those subsections o f section 246 o f the CPA. On the contrary, compliance with those subsections presupposes that there is compliance with subsections (1) and (2) o f the same section. Moreover, subsection (3), (4), (5) and (6) could not come into play while subsection (2) which lays the foundation was not complied with." The position was further fortified by the Court's earlier decision in The Director of Public Prosecutions v. Sharif s/o Mohamed @ Athuman and 6 Others (Criminal Appeal No. 74 of 2016) [2016] TZCA 635 (5 August 2016, TANZLII), while considering the import of non- compliance with section 246(2) it was stated: "Our understanding o f this provision is that it is not enough for a ,witness to merely allude to a document in his witness statement, but that the contents o f that document must be made known to the accused person(s). I f this is not complied with the witness cannot laterproduce that document as an exhibit" Again, the Court in Malocha Kalinji (supra) stressed on the importance of compliance to section 246(2)of CPA. It stated: "... it is apparent that compliance with subsection (2) of section 246 o f die CPA is paramount, because no witness will be called to testify for the prosecution whose statement was not read over at committal proceedings save where the prosecution has complied with the provisions o f subsection (1) and (2) and the Court has undertaken its duty o f scrutiny under subsection (3) o f section 289." Turning to the instant appeal, the record of committal proceedings conducted on 21st October, 2016 leaves no doubt that there was total non­ 10 compliance with section 246 (2) and (3) of the CPA. In the circumstances, we entirely agree with both learned counsel that, the apparent omission by the committal court to comply with section 246(2) of the CPA was a fatal irregularity which occasioned injustice to both the appellant and prosecution. The respective prosecution witnesses could not have legally testified and tendered documentary evidence which were later relied on by the trial court to convict the appellant In addition, since there is total non-compliance with section 246(2) and (3) we agree with both counsel that, the committal order was invalid and the way forward is to nullify the proceedings of the committal court as well as that of the trial court and remit the case to the committal court to conduct fresh committal proceedings in compliance with section 246 of the CPA. In the event, we allow the first ground of appeal. Since the first ground disposes the appeal, we find no need to determine the second and third grounds which were preferred as alternative. Ultimately, we allow the appeal. In fine, we invoke the provision of section 4(2) of the ADA to revise and nullify the proceedings of the District Court of Magu dated 21st October, 2016 and those of the High Court in Criminal Sessions Case No. 163 of 2016, quash the conviction and set aside the sentence. ii Finally, we remit the case file in PI Case No. 38 of 2014 to the District Court of Magu to conduct fresh committal proceedings before another magistrate as soon as practicable. We further order that, the appellant should remain in custody pending the holding of fresh committal proceedings. DATED at MWANZA this 17th day of July, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 18th day of July, 2024 in the presence of Mr. Kassim Selemani Gilla, learned counsel for the appellant and Ms. Bitunu Yunus Msangisa, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original.