20101004 TZCA Mwanza2

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IN THE COURT OF APPEAL OF TANZANIA

ATMWANZA (CORAM: KIMARO, J.A., LUANDA, J.A., And MANDIA, J.A.:) CRIMINAL APPEAL NO. 39 OF 2007 STEPHEN MHORO@NGAZA SALEHE ......................................... APPELLANT

VERSUS ( THE REPUBLIC ......................................................................RESPONDENT · (Appeal from the Judgment of the High Court of Tanzania at Tarime} (Mackanja, J.) dated the 23 rd day of January, 2007 in Criminal Session No. 91 of 2005

JUDGMENT OF THE COURT 28th September & 7th October, 2010 MANDIA. l.A.: The appellant STEPHEN MHORO @ NGAZA SALEHE appeared before the High Court of Tanzania sitting at Tarime on an information of murder. He was found guilty and convicted and duly sentenced to death by hanging. He has now appealed to this Court. The appellant was represented by Mr. Anthony K. Nasimire, learned advocate, while the respondent was represented by Mr. Seth Mkemwa, learned State Attorney. 1 - I Mr. Anthony Nasimire, learned advocate, filed a memorandum of appeal containing two grounds which read as follows:- "!. That since the learned trial Judge did not comply with the mandatory provisions of section 293(2) of the Criminal Procedure Act (Cap 20 RE 2002), he was not justified in drawing an adverse inference against the Appellant.

2. That it was unsafe for the learned trial Judge to convict the Appellant on the basis of the uncorroborated evidence of visual identification of the Appellant by PW2, Nyakhu w/c Ndurwe." The facts as adduced in the trial High Court tended to show that on 17/10/1994 at 6 p.m. PW1 Mariam d/o Mato and the deceased went to visit the deceased's friend at a place which is not disclosed. These two left the friend's home round about 11 p.m. to go back to Saba Saba Village where the deceased Kikondo Mweya lived. On reaching the tarmac road, about 2 ten paces from the deceased's house, a male person who PWl had never seen before sprang out of a bush by the side of the road, stood in the road and uttered these words:- "Hamna mtu kutoka; wote hapo hapo" This man held a stick in his right hand and a machete in his left hand. The man went on to address the deceased thus:- "Si nilikuwa, nakuambia? Leo umepatikana". The deceased replied thus:- "Ee, mume mwenzangu, kwa nini unataka kuniua"? PWl Mariam d/o Mato told the trial Court that he persuaded the armed person from attacking the deceased, and the reply she got was this:- "Na wewe unataka? Lakini mimi sikuwa na nia na wewe." After this exchange of words, the armed man slashed the deceased with the machete, cutting the left hand. The deceased shouted:- 3 "Ndurwe, Ndurwe, Ndurwe, Muhoro ananiua." After this cry out for help by the deceased

PWl Mariam d/o Mato ran while shouting for help. PWl testified that there was bright moonlight so she could see the deceased's assailant clearly. The cries for help by the deceased were heard by PW2 Nyakahu w/o Ndurwe, the wife of the man to whom the deceased was crying out for help. As fate would have it, the man to whom the deceased was crying out for help was sick, so it was his wife PW2 Nyakahu w/o Ndurwe who responded to the alarm. PW2 Nyakahu w/o Ndurwe told the trial Court that on hearing the cries for help she armed herself with a bow and arrows and went out towards the direction from where the cries for help had come. PW2 testified that she could see her way around because, in her words, "the night was bright with moonlight, like daytime". In this bright moonlight PW2 saw her neighbor Muhoro Nganza hacking the deceased Kikondo Mweya. PW2 testified that Muhoro Nganza pursued the deceased while slashing him until the deceased reached her (PW2's) compound and fell down, after which Muhoro turned back and fled. 4 The prosecution closed its case after the testimony of these two witnesses. Thereafter Mr. Kitwala, learned advocate appearing on behalf of the appellant, addressed the Court thus:- "The accused shall testify in his defence. We do not wish to call any other person". After this address by the advocate for the accused person the appellant in turn addressed the Court

thus:- "I have nothing to say in my defence". What followed thereafter was the final address by both the prosecution and the defence and the summing up to assessors. The assessors returned a unanimous verdict of "guilty". The trial Court found the offence proved and convicted the appellant accordingly. On the accused person's decision to keep quiet after his advocate had already indicated for the record that the accused will testify in his own defence, the Court made the following remark:- 5 "When a person is charged with as serious an offence as murder, and damaging evidence has been adduced against him and he decides to keep quiet, the Court shall be entitle to draw an adverse inference to the effect that either he does not have any evidence at all or that there is something incriminating which he has decided to conceal behind his silence". It is this comment on the appellant's silence which forms the plank of this appeal. Arguing the appeal, Mr. Anthony Nsimire, learned advocate for the appellant, contended that since the Court proceedings do not show that the appellant was addressed under Section 293 (2) of the Criminal Procedure Act, the appellant was not properly advised on whether to defend himself or not defend himself. The learned advocate contends that what transpired after the prosecution closed its case should be voided and the appellant allowed to exercise the

options provided by Section 293(2) of 6 the Criminal Procedure Act. The learned advocate drew support from a decision of this Court in JAMES BUGINGO versus REPUBLIC, Criminal Appeal No. 67 of 2006 (Mwanza Registry unreported). In reply Mr. Seth Mkemwa, learned State Attorney appearing on behalf of the Respondent/Republic, argued in support of both the conviction and sentence. The learned State Attorney sought to distinguish the Bugingo case on the ground that in the present case though the record is silent on whether the Court made the address to the accused person, the advocate appearing for the accused person elected on behalf of the accused person on what mode will be followed while giving defence. On the other hand in the Bugingo case the Court is not on record as addressing the accused person, and the advocate also did not elect on the mode of defence on behalf of the accused person. The learned State Attorney also advanced the argument that a distinction must be made between trials where there is defence representation and where there is not. He is of the view that the duty to address is more evident when the accused person has no defence representation. 7 Since the bone of contention is Section 293(2) of the Criminal Procedure Act, Chapter 20 of the laws R.E. 2002, it may be opportune to quote the section in full in order to get a good grasp of the arguments by both

counsel. The section provides thus: "293-(1) When the evidence of the witnesses for the prosecution has been concluded, and the statement, if any, of the accused person before the committing Court has been given in evidence, the Court, if it considers after Mearing the advocates for the prosecution and for the defence, that there is no evidence that the accused or any one of several accused committed the offence or any other offence of which, under the provisions of section 300 to 309 of this Act he is liable to be convicted, shall record a finding of not guilty. (2) When the evidence :of the witnesses for the prosecution has been concl~ded and the statement, 8 if any, of the accused person before the committing Court has been given in evidence, the Court, if it considers that there is evidence that the accused person committed the offence or any other offence of which, under the provisions of section 300 to 309 he is liable to be convicted, shall inform the accused person of his right - (a) to give evidence on his own behalf; and (b) to call witnesses in his defence, and shall then ask the accused person or his advocate if it is intended to exercise any of those rights and record the answer; and thereafter the Court shall call on the accused person to enter on his defence save where he does not wish to exercise any of those rights. (3) If the accused person, after he has

been informed in terms of subsection(2), elects to remain 9 silent the Court shall be entitled to draw an adverse inference against him and the Court as well as the prosecution shall be permitted to comment on the failure by the accused to give evidence. (4) Notwithstanding that the accused person accepts or gives any evidence not on oath or affirmation he shall be subject to cross-examination by the prosecution". We have endeavored to reprodu~e the whole of Section 293 in order to set out the relative duties of the parties after the prosecution closes its case. The first scenario is that under Section 293(1) where, after the prosecution has closed its case, the Court hears advocates for both the prosecution and the defence submitting that there is no case to answer 1 which can lead to a finding of not guilty. The second scenario is that under Section 293(2) where the Court finds there is a case to answer. Here, instead of the Court hearing advocates as in Section 293(1), it is obliged to address the accused person directly and inform him (or her) of his right 10 ' to give evidence on his/her own behalf and to call witnesses in defence. ' The duty to inform is placed on the Court, and the other party required to exercise his rights is the accused person, not any other third party. Particular note should be made of the use of the words "and then shall ask the accused person or

his advocate". A proper construction of these words mean that after the Court has addressed the accused person directly, the next task is for the Court to ask the accused or his/her advocate if it is intended to exercise any of the rights which were the subject of the address by the Court to .the accused person. It is here that the reply can be given by either the accused person or his/her advocate, and the answer recorded. The duty to inform is mandatory and is an obligation on the Court. The consequences of the duty of the Court to inform are evident in Section 293(3), which states that after the Court has informed the· accussed I person of his rights, and the accused person keeps quiet, the Court can draw an adverse inference. 11 Learned advocate for the appellant cited the authority of JAMES ' BUGINGO VR Criminal Appeal No. 67 of 2006 as authority for the first ground of appeal. In reply Mr. Seth :Mkemwa, learned State Attorney appearing on behalf of the Respondent/Republic, urged us to distinguish between cases where there is defence' representation, particularly in the ' present case where the advocate for the accused person made the election for the accused person without an address by the Court to the accused person, and the situation in the Bugingo case (supra) where there was no election at all. In view of what we said above, it does not matter if there is ' an

advocate representing an accused person or not. So long as the Court does not perform its function of addressing the accused person in terms of Section 293(2) of the Criminal Procedure Act, the Court as well as the prosecution lose the right to comment adversely on the failure by the accused person to give evidence. Since the duty to inform is couched in mandatory terms, failure to perform this duty is a fatal default. A trial held contrary to or in disobedience of an, express provision of law as to the mode of trial is not an irregularity which is curable, but is an illegality which vitiates the trial. 12 I Invoking our revisional jurisdictitjn under Section 4(2) of the ! Appellate Jurisdiction Act, 1979, as amen~ed by Act No.17 of 1993 we hold I i that all the proceedings subsequent to / the closure of the case for the I prosecution are null and void and are h~reby quashed. The judgment and I I sentence of both the trial Court and the ~ppellate High Court are set aside. I I We remit the record to the trial Court fof the proceedings to continue from I I the point where the Court endorsed t~at the prosecution had closed its I case. ! i th DATED at MWANZA this 4 day of:October, 2010. i N. P. KIMARO JUSTICE /oF APPEAL I i I i B. M. ILUANDA

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JUSTICE OF APPEAL I I i W. S.l MANDIA

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JUSTICEI OF APPEAL I 13 • I ,II :I 'I I l I I I certify that this is a true copy of tHe original. I 'I I I r . I I ! . I I i L - · J.. I! . . P. BamP,1kya i.

SENIOR DEPUTY REGISTRAR I j i ! .l . 'I :! ·lI I I f I l ·i ,I I ·l

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