CONSOLIDATED CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA, J.A.. FIKIRINL J.A, And KENTE, J.A1 CONSOLIDATED CRIMINAL APPEAL NOs. 160, 161 & 166 OF 2022 MUSANJILE MASANILO...... ................................................1st APPELLANT BAHATI KILUNGU @ MAZIKU........... .... ..... ,2nd APPELLANT ELIZABETH MASANJA@SHIJA @MAKANDI @MWANA MASANJA ........ ......... .............3rd APPELLANT VERSUS THE REPUBLIC........ ................................. ....... ................RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Tabora, at Tabora with Extended Jurisdiction) (Nsana, SRM - Ext. Juris) dated 1st day of April, 2022 in Criminal Session Case No. 22 of 2020 JUDGMENT OF THE COURT 5th & 22nd August, 2024 FIKIRIIMI. 3.A.: Musa Njile @ Masanilo, Elizabeth Masanja @ Shija Makandi @ Mwana Masanja, Bahati Kilungu @ Maziku, Mhoja John Shija @ Jurrta, Biria Masanja, and Regina Kashinje @ Kuiwa @ Tatu, hereinafter referred to as the 1st, 2nd, 3rd, 4th, 5th, and 6th accused persons, were charged with two counts: (1) attempted murder contrary to Section 211(a) and (2) possession of human body parts contrary to Section i 222A of the Penal Code, Gap. 16 Revised Laws. The particulars of the offence presented against them were that, on the night of 19th July, 2014, at Mmale village within Uyui District in Tabora Region, they unlawfully attempted to cause the death of Nkamba Ezekiel by chopping off her right arm. Almost a year later, specifically on 21st May, 2015, during the daytime at Maji Hotei Phantom area in Nyasubi Ward within Kahama District and Shinyanga Region, they were found in unlawful possession nine (9) pieces bones alleged to be human being body parts. All the accused persons denied the charges brought against them. After hearing from eighteen (18) prosecution and six (6) defence witnesses, admitting fourteen (14) prosecution and one (1) defence exhibits, the trial court acquitted the 2nd, 3rd and 5th accused persons on both counts. The 1st accused person was convicted on the 1st count and sentenced to life imprisonment but was acquitted on the 2nd count. The 2nd accused person was convicted on both counts and sentenced to life imprisonment on the Ist count and twenty (20) years imprisonment on the 2nd count, the sentence were to run concurrently. The 3rd accused person was acquitted on the 1st count but was convicted on the 2nd count and sentenced to fifteen (15) years imprisonment. Irritated by their convictions and sentences, the trio-Musa Njile @ Masanilo, the 1st appellant, Elizabeth Masanja @ Shija Makandi @ Mwana Masanja, the 2nd appellant, and Bahati Kilungu @ Maziku, the 3rd appellant, appealed to this Court, each lodging their own memorandum of appeal, However, at the hearing, through Ms. Stella Thomas Nyakyi their learned Advocate, a supplementary memorandum of appeal containing five (5) grounds was lodged, replacing the three previously lodged memoranda of appeals. Therefore, we shall not reproduce the complaints contained in the original memoranda of appeals lodged. However, it is important to provide some background on the events leading to this appeal. The narrative is as follows: On 19th July, 2014, at Malale Village within Uyui District of Tabora, it is alleged that the accused persons took part in the chopping off of the right forearm of INIkamba Ezekiel, a person with albinism. The victim, who sustained serious injuries, was taken to Ndala Hospital for medical attention. Meanwhile, the incident was reported to the police, and a criminal investigation was launched. All the accused persons, who had fled after the incident, were arrested on 21st May, 2015, at Maji Hotel in Kahama District, in possession of human body parts. During interrogation, they confessed. The recovered body parts were subjected to scientific examination at the Chief Government Chemist Laboratory (CGCL), and DNA tests confirmed that the bones were of a human being. Subsequently, all the accused persons were taken before a Justice of the Peace, where their Extra Judicial Statements were recorded, in which they once again confessed being found in possession of human body parts. They were arraigned in court and duly charged. As mentioned earlier, the accused persons were found guilty, convicted and sentenced. They have now appealed to this Court on five (5) grounds that:- 1. The learned Resident Magistrate with extended jurisdiction erred in law by convicting the appellants o f attempted murder without properjurisdiction. 2. The iearned Resident Magistrate with extended jurisdiction erred in iaw by convicting the 2nd and 3rd appellants of possession o f human body parts based on exhibits that lacked a proper chain o f custody. 3. The learned Resident Magistrate with extended jurisdiction erred in iaw by convicting the appellants of the offenses charged while there was unclear involvement o f assessors and an improper summing-up. 4 4. The learned Resident Magistrate with extended jurisdiction erred in law by convicting the 1st and 2nd appellants based on a cautioned statement that was recorded contrary to the law. 5. The learned Resident Magistrate with extended jurisdiction erred in law by convicting the appellants o f the offenses charged while the prosecution did not prove their case beyond a reasonable doubt At the hearing, Ms. Stella Thomas Nyakyi, learned Advocate, appeared for all the appellants, while Mr. Enosh Gabriel Kigoryo, learned State Attorney, represented the respondent/Republic. We had indicated before that each of the appellants had lodged a memorandum of appeal, as a result three different appeals were instituted registered as Criminal Appeal Nos. 160, 161, and 166 of 2022. We, thus consolidated them pursuant to Rule 69 of the Tanzania Court of Appeal Rules, 2009 (the Rules) and adopted the supplementary memorandum of appeal lodged by Ms. Nyakyi on behalf of all the appellants. Addressing us on the first ground on lack of jurisdiction, Ms. Nyakyi argued that the case was heard by a Resident Magistrate with extended jurisdiction. This occurred after the transfer of the record from the High Court in terms of Section 256A (1) of the Criminal Procedure Act (CPA). The Judge In-Charge ordered the transfer of the case to the Resident Magistrate's Court at Tabora, specifically assigning honourable Gladys Nancy Barthy, Senior Resident Magistrate with Extended Jurisdiction (SRM-Ext. Juris) to handle the case, as reflected on pages 111-118 of the record of appeal. However, the record indicates a different sequence of events following the plea-taking. From pages 119- 485, honourable Seraphine Benard Nsana, SRM, Ext. Juris, took over the case and continued with it to its conclusion. Crucially, the record does not show any indication that the case was formally transferred to honourable Nsana, SRM, Ext. Juris, by the Judge In-Charge. The law mandates that there must be an order assigning the case to the specific magistrate, which is missing in this situation. As a result, based on the record, the proceedings before honourable Nsana, SRM, Ext. Juris, without the proper grant of power under Section 256A (1) of the CPA, are irregular and a nullity. Ms. Nyakyi made reference to the case of Mateso Wilson Shantiwa v. R, (Criminal Appeal No. 106 of 2021) [2024] TZCA 541 (10th July, 2024; TANZLii), to support her argument. Mr. Kigoryo, joined hands with Ms. Nyakyi that the procedure was flawed for failure to comply with section 256A (1) of the CPA. In view of their concessional submissions, we believe this one ground should suffice to dispose of the appeal. Taking up the task given of determining the propriety of the proceedings before honourable Nsana, SRM, Ext. Juris, we find it will be convenient to start our deliberation by looking at section 256A (1) of the CPA, which provides thus:- "The High Court may direct that the taking o f a plea and the triai of an accused person committed for triai by the High Court, be transferred to, and be conducted by a resident magistrate upon whom extended jurisdiction has been granted under subsection (1) o f section 173/' [Emphasis added] What is evident is that there was a transfer of the Criminal Case Session No, 10 of 2020 to the Resident Magistrate's Court which was registered as Resident Magistrate's Court Extended Jurisdiction at Tabora in Criminal Session Case No. 22 of 2020 and assigned to honourable Barthy, SRM with Ext. Juris. That is reflected on page 110 of the record of appeal. The record is, however, silent on transfer of the case to honourable Nsana, SRM, Ext. Juris. Given that jurisdiction need 7 not be assumed but specifically conferred, lack of evidence that there was a transfer of the said record to honourable Nsana, SRM, Ext, Juris, in terms of section 256A (1) of the CPA, means she was never conferred with such jurisdiction. The proceedings before her were nothing but a nullity since she had no jurisdiction conferred on her. The issue of jurisdiction is paramount in the administration of justice. Fortunately, this is not the first time we are faced with the like scenario. In the following cases Thomas Gasper Mchamisi v. R, Criminal Appeal No. 291 of 2013, which was cited in the case of Sefu Shayo v. R, (Criminal Appeal No. 477 of 2019) [2022] TZCA 632 ('18th October, 2022; TANZLii), Robert Mkabe v. R, Criminal Appeal No. 332 of 2017, Nasra Hamis Hassan v. R, Criminal Appeal No. 545 of 2017 and Mateso Wilson Shantiwa (supra) referred by Ms. Nyakyi for the appellants, we had an opportunity of dealing with the situation albeit with slight differences, but all were related to transfer of cases tried by the High Court, Whereas transfer of cases is permitted depending on its nature, the following must be keenly observed that (i) appropriate provision must be invoked, (ii) the transfer must be to a specific Resident Magistrate with extended jurisdiction, (iii) who shall sit at the appropriate court within the jurisdiction of the Court of Resident Magistrate in which the offence is alleged to have occured. The emphasis here is, the transfer is never to the Resident Magistrate's court only but to that particular Resident Magistrate with Extended Jurisdiction assigned. Taking over conduct of the matter for whatever reasons without proper transfer in terms of section 256A (1) of the CPA, invalidated proceedings before honourable Nsana, SRM, Ext. Juris, since there was no requisite transfer order, conferring jurisdiction on her. In such situation there is no any other remedy but to declare the proceedings in Criminal Session Case No. 22 of 2020 a nullity. From the consensus, we prompted the learned Counsel to address us on the way forward in the event we find ourselves sharing their settled position. Ms. Nyakyi advised against ordering a retrial, citing significant gaps in the prosecution's case which could be exploited if the prosecution were given another opportunity by way of retrial. She pointed out several weaknesses in the prosecution's case, underscoring that they led to prosecution failure to prove their case beyond reasonable doubt. Giving example of some of those weaknesses as: first, that the charge sheet was inconsistent with the evidence presented. In the charge sheet nine (9) pieces of bones were referred, whereas PW4 referred to six (6). Second, those bones, whether six or nine were not tendered as evidence during trial. Third, the cautioned statements of the 1st and 2nd appellants were improperly procured. For instance, the 1st appellant's statement was recorded outside the prescribed time limit, as per Section 50(1) (a) of the CPA, which requires that a statement be recorded within four hours of arrest. What is gathered from the record is the cautioned statement was recorded on 25th May, 2015 as per exhibit P3, but it was unclear when he was arrested, as shown on page 356 of the record of appeal. Even if there was a valid reason for the delay, which was not explained, there is no evidence that an extension of time was sought and granted by the court. This raises further questions, particularly considering that other accused persons were arrested on 21st May, 2015, and brought to the police station on 22nd May, 2015, highlighted Ms. Nyakyi. Regarding the 2nd appellant, her cautioned statement-exhibit P5, found on page 371, and particularly at page 378, it is not indicated whether the statement was read to her or she read it herself, as 10 required under Section 57(3) of the CPA. Fourth, the Extra Judicial Statements of the three appellants could not be relied upon to secure a conviction since their confessions did not support the charges they were facing. For instance, the 1st appellant confessed to cutting the hand of someone's wife who happened to be albino, rather than a child's (Nkamba Ezekiel) forearm; the confession therefore relates to a different person. As for the 2- appellant's Extra Judicial Statement - exhibit P10, found on page 404, mentions that she admitted to being found in possession of human being bones, but it was unclear to whom those bones belonged. Fifth, the chain of custody of the retrieved bones was not established. According to the evidence, the bones were taken to Kahama Police Station, but it was not stated who took them. This was followed by a letter from Igunga Police Station, but the author of the letter was not disclosed. Additionally, it was unclear who took them, when and how to the CGCL. The entire process lacked sufficient detail for an accurate trail. When the Court inquired whether the bones could easily change hands, making a paper trail of their transfer necessary, Ms. Nyakyi responded by acknowledging that while it is true the bones might not change hands easily, the fact remains that there was inconsistent information: the charge sheet referred to nine (9) bones, ii whereas the evidence mentioned six (6) bones. Based on these inconsistencies, she opposed a retrial order being made. Regarding fairness in light of the injuries sustained by the victim, Ms. Nyakyi candidly agreed that punishment is necessary to penalize, reform, and serve as a lesson to others with similar intentions. However, she acknowledged that no punishment would change the fact that the victim had lost her arm. On the strength of her submission she beseeched us to allow the appeal, nullify the proceedings, quash the conviction, set aside the sentence and release the appellants. On his part, Mr. Kigoryo joined hands with Ms. Nyakyi that the proceedings before honourable Nsana, SRM, Ext. Juris, were a nullity due to the absence of a formal transfer of the case to the said magistrate. He emphasized that the case must be transferred to a specific individual, not just the court. Regarding the way forward, he also concurred with Ms. Nyakyi that there should not be a retrial assigning the following reasons for his stance: first, his primary concern was that, although the appellants were connected with the finding of what were alleged to be human bones, 12 there remained a significant question: if those bones were of a human being and to whom they belong? Second, according to PW18, employee from CGCL, she received mouth swabs from the appellants for DNA testing. No explanation was given why was swabs not taken from PW1, the victim's mother, or the victim herself, who was still alive at the time. If a retrial is ordered, there is a possibility that the prosecution could use this opportunity to rebuild their case. Third, the alleged bones were never tendered in court as exhibits; instead, the prosecution relied on a seizure certificate- exhibit P2, Failure to tender the actual bones in court and without any explanation or proof that the bones were destroyed by court order, the outcome of a retrial would be predictable, the prosecution would likely have the opportunity to reconstruct their case. Fourth, the learned State Attorney pointed out that neither the seizure certificate nor the bones were listed as potential evidence during committal proceedings required under Section 246(2) of the CPA. Fifth, he supported the argument that the chain of custody was inadequate. Sixth, in the climax of his submission, he pointed out that there was no compliance with Section 246(2) of the CPA or Section 289(1) of the CPA. This was related to PW18's testimony. She testified without being listed as a witness, therefore her statement was not read out during the committal proceedings. And during the trial, she testified without notice to the accused persons, as required under Section 289(1) of the CPA. Given the significant shortcomings, Mr. Kigoryo asserted that ordering a retrial would be unfair to the appellants. Luckily, as shown above Ms. Nyakyi and Mr. Kigoryo are at one that retrial is not an option. The assigned reason being, it would afford the prosecution an opportunity to reconstruct its case. We admit there are conspicuous glitches which had the trial court directed itself properly assuming there was no issue of jurisdiction, no conviction could have been secured. Aware of the decision in Fatehali Manji v. R, [1966] E.A 343, that: "a retrial should be ordered only when the original trial was illegal or defective and should hot be ordered where the prosecution evidence is patently weak and by ordering a retriai, the prosecution will seize that opportunity to fill up gaps at the prejudice of the appellant." [Emphasis added] 14 Ordering retrial should therefore he carefully considered. On the one hand should not give the prosecution room to overhaul its case and on the other see that the order is not prejudicial to the appellants. See also: Selina Yami and Others v. R, Criminal Appeal No. 94 of 2013 which was referred in Christian Mwinuka v„ R, Criminal Appeal No. 263 of 2018 (both ureported) Against the above warning and sifting through the evidence on the record, we are without a doubt that this is not a fit case for retrial. We will not dig out all the shortfalls but mention a few. The lapses in the prosecution case started from when the committal proceeding was conducted, for failure to comply with the requirement under section 246 (2) of the CPA. The human being bones subject of the second count were not listed nor was the name of the witness who dealt with examination of those bones from the CGCL mentioned, meaning even her statement was never read during the committal proceeding. We had an opportunity of previously addressing the fate of none compliance with section 246 (2) of the CPA, where we observed that the omission is fatal and vitiates the proceedings. See: The Director of Public Prosecutions v. Sharif Mohamed @ Athuman & 5 Others, Criminal Appeal No. 74 of 2016 and Remina Omary Abdul v. R (Criminal 15 Appeal No. 189 of 2020) [2022] TZCA 118 (15th March, 2022; TANZLii), Masamba Musiba@ Musiba Masai Masamba v. R, (Criminal Appeal No. 138 of 2019) to list a few. The infraction did not end at the committal proceedings stage but extended to the hearing phase. During the hearing, the prosecution were not able to tender the bones allegedly found in possession of the appellants. In the case of Michael Gabriel v. R (Criminal Appeal No. 240 of 2017) [2021] TZCA 24 (19th February, 2021; TANZLii), the appellant was charged and convicted for the offence of unlawful possession of government trophies. At the hearing, the alleged trophies, which were two leopard skins, were not tendered in evidence nor inventory form admitted. The Court concluded that the offence of unlawful possession of trophies was not proved. In this appeal, likewise, the nine bones allegedly found in possession of the appellant were not tendered. Instead the prosecution relied on certificate of seizure which was admitted in evidence as exhibit P2. Without tendering the actual exhibits or explanation or proof that the bones were destroyed by the court order and that they were destroyed in the presence of the appellant as stipulated in paragraph 25 of the Police General Order No. 229, rendered the charge not proved. 16 See: Mohamed Juma @ Mpakama v. R, (Criminal Appeal No. 385 of 2017) [2019] TZCA 518 (27th February, 2019; TANZLii). The prosecution also failed to establish the chain of custody from the impoundment of the alleged nine bones, their transfer from the Police to the CGCL, leading to PW18 being summoned as one of its witnesses. Even though bones could fall in the category of items that could not easily change hands, we see sense in Ms. Nyakyi's submission that, without tendering of the bones in evidence nor explanation being given as to why was that, establishing a chain of custody cannot simply be wrapped under the rugs. This has blemished and weakened the prosecution case. Another obvious lapse is that PW18 testified as a prosecution witness while she was not listed nor her statement read out during the committal proceedings. This contravened both sections 246 (2) and 289 (!) of the CPA. Since PW18 was not listed nor her statement read during the committal proceedings, the door was still open as the prosecution could have resorted to applying section 289 (1) of the CPA which requires a notice to summon additional witnesses or document, be given within a reasonable time. They did not do that. With the few pointed out defects we entirely agree that retrial will be prejudicial to the appellants. In the end, we proceed to allow the appeal, nullify the proceedings, quash the conviction and set aside the sentence. All three appellants be released from prison unless being held for some other lawful reasons. DATED at TABORA this 21st day of August, 2024. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL The Judgment delivered this 22nd day of August, 2024 in presence of Saikon Justin Nokoren, learned counsel for the appellants and Mr. Steven Mnzava, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original.