20170525 TZCA Dodoma

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: LUANPA.J.A., MWARIJA.J.A., And MWAMBEGELE. J.A..^ CRIMINAL APPEAL NO. 150 OF 2016 1. WYCLIFE SALUM NYEN DO- 2. SHABANI KEFA NJULUMUI 3. JOHN MANGWELA ................................... APPELLANTS VERSUS THE REPUBLIC................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dodoma) (Kalombola, J) dated 8th day of April, 2016 in Criminal Session Case No. 39 of 2012 JUDGMENT OF THE COURT 24th & 25th May, 2017 LUANDA, J.A.: The appellants in this appeal namely, WYCLIFE SALUM NYENDO, SHABANI KEFA NJULUMUI and JOHN MANGWELA were jointly and together charged in the High Court of Tanzania (Dodoma Registry) with the offence of murder. It was alleged in the charge sheet that on 21/11/2011 at about 11.00 hrs at Ihumwa Village within the Municipality, District and Region of Dodoma the three unlawfully terminated the life of an old man called Philimon s/o Chimwagamwaga. After a full trial, the High Court was satisfied that the three had committed the offence. Accordingly, they were convicted and each was sentenced to suffer death by hanging. Dissatisfied with the finding of the trial High Court, they have preferred this appeal. In this appeal Ms Rosemary Shio learned Principal State Attorney appeared for the respondent/Republic; whereas Mr. Kuwayawaya S. Kuwayawaya learned counsel, represented the appellants. For reasons which we are going to explain shortly, we do not wish to give a summary of the case. At the commencement of the hearing of the appeal, the Court on its own raised one issue as preliminary matter. The issue we raised, after going through the record, was whether the learned trial judge summed up the case to the assessors properly. And if it was shown it was not summed up properly; what is its legal implication. We posed that question because we had mind in SS. 265 and 298(1) of the Criminal Procedure Act, Cap. 20 RE 2002 (the CPA). S. 265 of the CPA requires all criminal trials in the High Court to be conducted with the aid of assessors; whereas S. 298(1) of the CPA is the section which deals with summing up. The shortcomings which the Court spotted are, inter alia, the following. One, the learned trial judge did not inform the assessors who had the burden of proof in the case. Two, she did not also inform them what was the standard of proof to such an offence. Three, she did not indicate the ingredients of the offence of murder especially what constitutes malice aforethought. Four, the prosecution case relied upon, inter a/ia, circumstantial evidence but the judge did not say what it entails. Mr. Kuwayawaya told the Court that so long as the learned trial judge did not sum up the case properly, then the assessors were not fully involved in the conduct of the case. There was no trial worth the name. The way forward he said was to order retrial before another judge and a new set of assessors. Ms Shio also joined hands to what has been observed by the Court. At first, she said the way forward was to quash the entire summing up proceedings and order the trial learned judge with the assessors to sit and do the needful. But on reflection and especially upon being informed that the position of the Court to such situation has always been to order a retrial, she changed position and said an order of retrial is appropriate in the circumstances of the case. We wish to reproduce the relevant portion for ease of reference. Page 112 of the record reads:- "SUMMING UP TO ASSESSORS Gentleman (sic) assessors, the case on both sides is dosed, the following is the evidence this court had collected" Then the learned trial judge summarized the case to the assessors starting with the prosecution case which had 8 witnesses, briefly she summarized the defence case, submission of the defence counsel as well as submission by the learned State Attorney. She then proceeded to address the assessors thus as shown on pages 118 - 119 of the record:- 11Gentlemen assessors, this is the summary of evidence before us. As it is a requirement o f Section 298 (1) o f the Criminal Procedure Act, I hereby call upon each o f you to state opinion regarding a question whether the evidence in hand is adequate for this Court to find accused's (sic) or one or two o f accused guilty o f offence o f murder they stand facing. Either if prosecution side proved its case beyond a ll reasonable doubt. Gentlemen assessors may I remind you that this is a Serious offence in our Laws which if one is found guilty has to face a Capital sentence o f death by hanging. Gentlemen assessors having said so, it is now your opportunity to air your opinions. I thank you (H.H. KALOMBOLA) JUDGE 11/11/2015" From the above, it is clear that the learned trial judge did not sum up the case properly to the assessors. Now if the assessors in terms of S. 265 of the CPA assist the trial High Court in arriving at a just decision, had the assessors in this case assisted the High Court? S. 265 of the CPA provides: 265. A ll trials before the High Court shall be with aid o f assessors the number o f whom shall be two or more as the court think fit Definitely the answer to the question posed above is emphatic No. We wish to reaffirm once again that the opinion of assessors can be of great value and assistance only if they fully understand the facts properly vis -a - vis the law in question. These views were expressed in Washington s/o Odindo V R (1954) 21 EACA 394 6 and in Andrea and Others V R (1958) EA 684 where the then Court of Appeal for Eastern Africa, inter alia, said: " The opinion o f assessors can be o f great value and assistance to a trial judge but only if they fully understand the facts o f the case before them in relation to the relevant law. I f the law is not explained and attention not drawn to the salient facts o f case the value o f the assessors' opinion is correspondingly reduced" [See also Khamis Nassor Shomar V. S. M. Z [2005] TLR 228; Tulubuzya Bituro v R [1982] TLR 264) Since in this case the learned trial judge did not sum up the case properly to the assessors, it cannot be said that the trial was with the aid of assessors. That goes contrary to S. 265 of the CPA. In the exercise of our revisional powers as conferred upon us under S. 4(2) of the Appellate Jurisdiction Act, Cap. 141 RE 2002, we quash the proceedings and set aside both the conviction and sentence. We order the appellants to be tried afresh before another judge and a new set of assessors. Order accordingly. DATED at DODOMA this 25th day of May, 2017. B. M. LUANDA JUSTICE OF APPEAL A. G. MWARIJA JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the original 8