IN THE COURT OF APPEAL OF TANZANIA

AT MBEYA

(CORAM: MMILLA, J.A., MUGASHA, J.A., AND MWAMBEGELE, J.A.)

CRIMINAL APPEAL NO. 436 OF 2016

1. APOLINARY MATHEO }
2. BARNABA ALCADO @ SIWINGWA ........•........................ APPELLANTS
3. MICHAEL CLAUD @ JOLO

VERSUS
THE REPUBLIC ..............•..................................................... RESPONDENT
(Appeal from the Judgment of the High Court of Tanzania
at Mbeya)

(Mambi, J.)

Dated the 12th day of February, 2016

in
Criminal Sessions Case No.7 of 2015

JUDGMENT OF THE COURT

30th November & 11 th December! 2018

MWAMBEGELE, l.A.:

The three appellants - Apolinary Matheo, Barnabas Alcado @

Siwingwa and Michael Claud @ Jolo - were arraigned before the High

Court of Tanzania sitting at Mbeya for three counts of murder.

According to the information filed against them, the trio, on 01.09.2012,

at Mbata Village in Chunya District, Mbeya Region murdered Julius s/o

Katoto @ Mwamasonga, Sabela d/o Boniface and Maongezi s/o Mkusi

the subject of, respectively, the first, second and third counts. The

appellants denied the charges levelled against them, hence a full trial
1
after which they were convicted as charged and sentenced to suffer the

mandatory death sentence. Aggrieved, they have come to this Court on

first appeal with seven grounds of grievance filed by their advocates in

lieu of theirs they earlier separately filed which they sought to abandon

at the hearing. For easy reference, we take the liberty to reproduce the

seven grounds of complaint as under:

1. The learned trial Judge erred in the manner of summing up

the case to assessors;

2. The High Court erred on convicting Appellants on basis of

evidence which is not at all found on record on proceedings;

3. The High Court gravely erred on holding the Appellants were

properly identified by PW3 David Pascal and PW8 Herman
Simon given a totality of the evidence on record;

4. The learned trial Judge made a grave mistake when taking

evidence of PW8 Herman Simon after prayer by the

prosecution for the witness to be declared a hostile witness;

5. The learned trial Judge erred in his assessment of the

evidence on record;

6. The learned trial Judge erred in the manner of written

Judgment whereby he convicted the Appellants with the

offences charged well before making analysis of the

evidence brought against them; and

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 7. The learned trial Judge erred on his failure to identify actual
number of accused persons, saying they were nine, three
and ended up convicting four.

When the appeal was placed before us for hearing on 30.11.2018,

the appellants, who all entered appearance, had the able representation

of Mr. Mika Mbise and Ms. Joyce Kasebwa, learned advocates. The

respondent Republic appeared through Ms. Catherine Paul, learned State

Attorney. In support of the appeal, the learned counsel for the

appellants had earlier filed written submissions which they sought to

adopt along with the grounds of appeal as forming part of their oral

submissions. The written submissions of the appellants are rather

detailed and lengthy covering all the grounds of appeal running through

ten pages. However, for reasons that will become apparent in due

course, we will address the first ground of appeal only.

On the first ground of appeal, the appellants complained that the

learned trial Judge erred in the manner of summing up the case to

assessors. They submitted that the learned Judge went against the

dictates of sections 265 and 298 (1) of the Criminal Procedure Act, Cap.

20 of the Revised Edition, 2002 (hereinafter referred to as the CPA)

because, instead of summing up evidence for the prosecution and

defence, he lured the assessors with his own opinion and imported
3
extraneous facts which were not at all on record. The learned counsel

made reference to p. 58 from line 15 through to line 17 of p. 59. The

appellants also submitted that at p. 58 the accused persons; the

appellants herein are referred to as Apolinary Matheo, Barnaba Alcado

and Adam Patrick while there was no accused going by the name Adam

Patrick. The learned counsel for the appellants referred us to our

unreported decision in Chrisantus Msingi v. Republic, Criminal

Appeal No. 97 of 2015 wherein we observed that it was improper for a

trial Judge to express his opinion in summing up to assessors.

Having stated as above, the learned advocates for the appellants

submitted that because of the above shortfalls, the trial was not

conducted with the aid of assessors and, therefore, urged us to invoke

the powers of revision bestowed upon us by section 4 (2) of the

Appellate Jurisdiction Act, Cap. 141 of the Revised Edition, 2002

(hereinafter simply referred to as the AJA) to nullify the entire

proceedings of the High Court like we did in Sikujua Hosea v.

Republic [2016] TLS LR 264 and Tulubuzya Bituro v. Republic

[1982] TLR 264. The learned advocates prayed that bearing in mind the

paucity of evidence on record and on the authority of Fatehali Manji v.

Republic [1966] EA 341 and Selina Yambi & others v. Republic,

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Criminal Appeal No. 94 of 2013 and Salum Salum & another v.

Republlc, Criminal Appeal No. 119 of 2013 (both unreported) cited with

approval in Athanas Julius v. Republic Criminal Appeal No. 498 of

2015 (unreported), the appellants should be set free.

As alluded to earlier, in their written submissions, the appellants'

advocates submitted on other grounds as well but we think the first

ground disposes the appeal and, therefore, we think we should not burn

any fuel in respect of them. We now turn to consider the respondent's

rebuttal or acceptance, as the case may be.

Responding, Ms. Paul, was very quick to express her stance in

respect of the appeal at the very outset. She was in agreement with the

appellants that the proceedings was marred with irregularities regarding

summing up to assessors which vitiated the whole trial. Supporting the

submissions of the advocates for the appellants in respect of the first

ground of complaint, she submitted that the summing up to assessors

was inappropriate. The learned State Attorney referred us to p. 61 of

the record of appeal where, she stated, the learned Judge influenced the

assessors by giving his opinion and importing extraneous matters which

did not crop up in evidence. Much worse, she went on, the assessors

were not told of their role at the beginning of the trial. Neither were

5
they asked if they had any objection to any of them. That was

inappropriate and an incurable procedural defect.

As regards the way forward, the learned State Attorney parted

ways with the appellants' advocates. Having prayed that the

proceedings and judgment of the High Court should be quashed and the

sentences set aside, she proposed a fresh trial before another Judge and

new set of assessors. The learned State Attorney ascribed the reason

for taking that course of action to the availability of enough evidence to

prove the case against the appellants beyond reasonable doubt in

respect of the second count; the murder of Sabela Boniface.

Rejoining, Mr. Mbise came up with some force against the way

forward suggested by the respondent's counsel. He charged that the

only evidence against the appellants in respect of the murder of Sabela

Boniface; the subject of the second count, was that of DP (a child whose

name we withhold hence the pseudonym) who testified as PW3. He

submitted that PW3 could not have easily identified the assailants who

were in a group of about forty people in commotion and who came

suddenly at sunset. If PW3 identified the appellants he would have told

people on the very day or the following day, he argued. Had he done

so, it would not have taken the appellants who lived in the same village

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to be apprehended after a month. Thus he reiterated that ordering a

fresh trial of the appellants would not do justice to them as the

respondent will go back and fill in the gaps of the prosecution case.

Basing on the above arguments and conclusions, Mr. Mbise

reiterated his prayer to have the appellants set free.

We have anxiously considered the submissions of the learned

advocates for the appellants on the one hand and that of the learned

State Attorney on the other. We are profoundly grateful for the industry

expended in their respective submissions. The learned counsel for

either side argued the appeal with tenacity and zeal and we commend

them for the good work well done. The ball is now in our court.

We start our determination by stating that in terms of section 265

of the CPA, all criminal trials before the High Court are mandatorily

conducted with the aid of assessors. For easy reference, that section

reads:

''All trials before the High Court shall be with the

aid of assessors the number of whom shall be
two or more as the court thinks fit. //

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 In accomplishing the duty under the section, case law has it, inter

alia, that the assessors must be selected and told of their duty and the

accused person accorded an opportunity to comment on whether or not

they have any objection to any of the assessors. That stance of the

Court has been stated in a number of decisions including Tongeni

Naata v. Republic [1991J TLR 54 and our unreported decisions in

Yohana Mussa Makubi and Another v. Republic, Criminal Appeal

No. 556 of 2015, Hilda Innocent v. Republic, Criminal Appeal No.

181 of 2017, Chacha Matiko @ Magige v. Republic, Criminal Appeal

No. 562 of 2015 and Fadhil Yussuf Hamid v. Director of Public

Prosecutions, Criminal Appeal No. 129 of 2016. In Tongeni Naata,

the Court observed:

'~s for the last ground of appeal it was held in

Ndiragu Nyagu v R. [1959} E.A.75 that it is a
sound practice which has been followed and
should be followed to give an opportunity to an
accused to object to any assessor. That was
followed by this Court in the appeal of Samwei
Ndonya v R. Criminal Appeal No. 76/1988
(unreported). However/ we added that the
result of such omission cannot be the same in
each case. //

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 Likewise, in Yohana Mussa Makubi, Hilda Innocent and

Chacha Matiko @ Magige (supra) we reproduced the following

excerpt from the case of Laurent Salu and five others v. Republic,

Criminal Appeal No. 176 of 1993 (unreported) which we think merits

recitation here:

"''Admittedly the requirement to give the

accused the opportunity to say whether or not
he objects to any of the assessors is not a rule
of law. It is a rule of practice which/ however,
is now well established and accepted as part of
the procedure in the proper administration of
criminal justice in this country. The rationale
for the rule is fairly apparent The rule is
designed to ensure that the accused person
has a fair hearing. For instance/ the accused
person in a given case may have a good
reason for thinking that a certain assessor may
not deal with this case fairly and justly because
of, sey, a grudge/ misunderstanding/ dispute
or other personal differences that exist
between him and the assessor. In such
circumstances in order to ensure impartiality
and fair play it is imperative that the particular
assessor does not proceed to hear the case/ if
he does then in the eyes of the accused
9
 person at least justice will not be seen to be
done. But the accused person, being a layman

in the majority of cases, may not know of his

right to object to an assessor. Thus in order to

ensure a fair trial and to make the accused

person have confidence that he is having a fair

trial, it is of vital importance that he is

informed of the existence of this right. The

duty to so inform him is on the trial judge, but
If the judge overlooks this, counsel who are
the officers of the court have equally a duty to
remind him of it.

In the instant case, it is not known if any of

the accusedpersons had any objection to any
of the assessors,and to the extent that they
were not given the opportunity to exercise that
right, that clearly amounts to an irregularity. N

In Fadhil Yussuf Hamid (supra) we meticulously summarized

the above excerpt as follows:

"The case of Laurent Salu and five others

v. R, Criminal Appeal No. 176 of 1993
(unreported) is elaborative on all the steps
which must be complied with in a trial with aid
of assessors.

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1) The Court must select assessors and
give an accusedperson an opportunity to
object to any of them.

2) The Court has to number the

assessors/ that is/ to indicate who is
number one, number two and number
three/ as the case may be.

3) The Court must carefully explain to the

assessorsthe role they have to play in the
trial and what the judge expects from
them at the conclusionof the evidence.

4) The Court to avail the assessors with

adequate opportunity to put questions to
the witnesses and to record clearly the
answers given to each one. If an assessor
does not question any witness, that too,
has to be clearly indicated as: ''Assessor
2: Nil or no question.

5) The court has to sum up to the

assessors at the end of submission by
both sides. The summing up to contain a
summary of facts/ the evidence adduced.
and also the explanation of the relevant
law/ for instance/ what is malice
aforethought. The court has to point out

11
 to the assessors any possible defences
and explain to them the law regarding
those defenses.

6) The court to require the individual

opinion of each assessor and to record the
same. //

[See also: Bashiru Rashid Omar v. SMZ,

Criminal Appeal No. 83 of 2009 (unreported)]

Adverting to the instant case, it is apparent on the proceedings of

the High Court that the learned trial judge did not select the assessors

on the first day of hearing. Let the proceedings of 02.03.2013; the day

on which the first prosecution witness started to testify, speak for itself:

"Date: 02.03.2016
Coram: Hon. Dr. A. J. Membi, J.

For the Republic: Mr. Rodges/Miss

For the Accused: Mr. Mwakolo/Mr. Omary

- D/Counsel
pt Accused:

2nd Accused:
3rd Accused:

Interpreter: Mrs. Flora Mponzi - English

into Kiswahili and Vice Versa.

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Notice of trial on information for murder cis
196 and 197 of the Penal Code was duly
served on the accusedpersons now before this
Court

Prosecution:

My Lord I am Rogerswith Ms Zena for the

Republic.

Defence:

We have Mwakolo for the ,2Jd & Jd

accused. Mr. Omary for the accused. The

matter is for trial and we have (7) seven
witnesses.

Chargeis read to the accusedpersons.

1st Accused: Not true
:2f7d Accused: Not true

Jd Accused: Not true

Court:
Enters a plea of not guilty to all accused
persons.
Sgd: Dr. A. J. MAMBI

JUDGE

02.03.2016
PWl:
Name: Dr. Pastory T. Buhele
13
 Place: Mkwajuni Chunya

Word: Doctor

Religion: Cristian

PW1 is sworn.

I started my work as a clinical officer in

1984... "

After that, PWl went on to testify as shown above without the

assessors being shown in the proceedings that they were selected.

Neither was it shown that the appellants were accorded opportunity to

object or not to object to any of the assessors. That course offended

the principles in Laurent Salu (supra) summarized as the first and

second principles in Bashiru Rashid Omar (supra) to the effect that

the Court must select assessors and give an accused person an

opportunity to object or not to object to any of them, and that the Court

has to number the assessors, that is, to indicate who is number one,

number two and number three, as the case may be.

However, as regards the first omission, we think, it is not

incurable, for, despite being not indicated that the assessors were

selected, we see them at p. 16 of the record of appeal being given

opportunity to ask the witness questions. At p. 16 the record shows:

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 "Assessors:

Assessor No.1:

Police officer come at round 11.00 a.m. They

come on the 2.09.2012.

Assessor No.2:

On the material date I was with other staff in

the office.

Assessor No.3:

I don't know the source of fire.

Sgd: Dr. A. J. MAMBI

JUDGE

02.03.2016//

In view of the fact that the record shows that assessors asked

questions, we take it that they were selected. We find fortification in

this stance in the maxim of equity which says equity considers as done

that which ought to have been done. In Musa Mohamed v. Republic,

criminal appeal no. 216 of 2005 (unreported), we had this to say on the

maxim:

"This Court being the final court of justice of

the tend, apart from rendering justice
according to law also administer justice
according to equity. We are of the considered
opinion that we have to resort to equity to

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 render justice, but at the same time making

sure that the Court records are in order.

One of the Maxims of Equity is that 'Equity

treats as done that which ought to have been

done: Here as already seid, the learned

Resident Magistrate for all intents and
purposes convicted the appellant and that is
why he sentenced him. So, this Court should
treat as done that which ought to have been
done. That is, we take it that the Resident
Magistrate convictedthe appellant. F/

Applying the above observation in respect of the application of the

maxim, to the present situation, we are of the considered view that the

learned Judge, for all intents and purposes, selected the assessors and

that is the reasons why he accorded them the opportunity to put

questions to the witness. We however, reiterate that in a case triable

with the help of assessors, it is desirable that the selection of assessors

is reflected in the proceedings. It is also important that they should be

reminded of their duty as pointed out in item 3 in Fadhil Yussuf

Hamid (supra). Failure to do that makes the trial unfair prone to be

nullified.

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 Both learned counsel for the parties have also complained that the

assessors were influenced. For clarity we wish to reproduce the portion

which the parties allege that the judge influenced the assessors. At pp.

58 - 59, the learned Judge summed up to the assessors as follows:

"The Accused Persons APOLINARY MA THEO/,

BARNABA ALKADO ADAM PA TRICK and other
villagers upon reaching the house of GIBERT
CHIKUNDI they did beat and cut severally the
deceased one SABELA BONIFACE the wife of
GILBERT CHIKUNDI, the accused persons
herein also burned the deceased kitchen and
burnt the deceased body to death by using
grasses her to be witch. At all this time the
deceased grandson one rDPJ who was at the
scene witnessed the incident and managed to
identify the accused persons accordingly.

On the similar vein the accused persons

APOLINARY MATHEO/, BARNABA ALCADO/,
ADAM PATRIe in association with NESTORY
CHRISTOPHER and GEOFREY MUSOLOLOwent
to the house of the deceased one JULIUS
KA TOTO burned the house while the deceased
was inside the house.

The accused persons completed their evil acts

by going to the house of the deceased one
17
 MADNGEZI MKUSI burning the said house
while the deceased was inside the house and

the deceased died forthwith because of the

said act of the accused persons to burn the

deceased house while he was inside. //

Likewise, at p. 61 of the record of appeal summed up to them in

the following terms:

I~S you may recall from the evidence, all the

deceased were beaten/ stoned and burnt to
death by the three accusedpersons and other
unknown person. The accused persons
alleged all the deceased as witchcrafts who
caused the deathbed of the girl known as
NELL Y DID ALEX Their houses and properties
were also destroyed and burnt to ashes. /r

We agree with both trained minds for the parties that, indeed, the

learned trial Judge, in summing up to assessors, expressed his opinion

and influenced them as well as importing extraneous matters which did

not crop up in evidence. That had an adverse effect on the appellants

and made the trial against them unfair. In Chrisantus Misingi (supra)

the case referred to us by the learned advocates for the appellants, we

grappled with a similar situation and made the following observation:

18
 "The trial judge dearly expressed his own
findings of fact on the evidence and had
nothing to do with the opinions of assessor but
to influence them to agree with him. It was

improper for the judge to make his impression

known to the assessor because a trial judge

should as far as possible desist from disclosing
his own views or making remarks or comments
which might influence assessorsin one way or
another in making up their minds about issues
being left with them for consideration. (SEE
ALLY JUMA MAWERA VS REPUBLIC [1993)
TLR 231). Moreover, it is only through a
proper summing up that the assessors may
give an invaluable opinion to aid the judge in
reaching a just decision. (SEE WASHINGTON
SIO ODINDO VS REPUBLIC (1954) 21 EACA
392). Where assessors are misdirected on a
vital po/nt, the trial judge cannot be said to
have been aided by assessors. (SEE
TULUBUZYA BITURO VS REPUBLIC (1982)
TLR 264). //

Likewise, in Okethi Okale and others v. Republic [1965] 1 EA

555, the erstwhile Court of Appeal for East Africa, underlined the

importance of not importing extraneous matters into evidence. It was

held, (I quote from the first holding in the headnote):

19
 "In every criminal trial a conviction can only be
based on the weight of the actual evidence
adduced and it is dangerous and inadvisable
for a trial judge to put forward a theory not
canvassed In evidence or In counsels'
speeches".

We also see another shortfall; that the learned trial Judge did not

sum up to assessors on a very important aspect of the offence. He did

not sum up on the aspect of malice aforethought and what it entails.

That amounted to a nondirection on a vital point of law which also adds

salt to the wound. As we articulated in Omari Khalfan Vs Republic,

Criminal Appeal No. 107 of 2015 (both unreported), there is a long and

unbroken chain of decisions of the Court which all underscore the duty

imposed on trial High Court judges who sit with the aid of assessors, to

sum up adequately to those assessors on "all vital points of law". What

are the vital points of law which the trial High Court should address to

the assessors and take into account when considering their respective

judgments will depend on important points of law disclosed in each

particular case - see: Said Mshangama @ Senga vs. R., Criminal

Appeal NO.8 of 2014 (unreported) and Omari Khalfan (supra).

The above ailments, on the authorities cited, vitiated the trial.

20
 Regarding the way forward, with due respect to the learned State

Attorney, we are not prepared to buy the argument that we should

order a retrial as, according to her, there was sufficient evidence to

mount a conviction against the appellants in respect of the second

count. She added that the prosecution is not to blame for the ailments.

With equal due respect, we are in agreement with the learned advocates

for the appellants that this case is not one befitting a retrial. We are of

such a stance because the only eye witness in respect of the second

count was DP (a child of young age hence the pseudonym). As rightly

argued by the appellants' advocates, PW3 could not have easily

identified the assailants in the conditions obtaining at the scene of crime

because; one, it was late in the evening immediately before 20:00 hours

- see the testimony of Erick Mathea Chitende (PW2), two, the

encounter was sudden and of a mob of 'about forty people who were not

face to face with PW3, and three, PW3 went to sleep to a certain Mama

Raeli who was not called to testify and it does not appear the appellants

were mentioned to her as they were arrested one month after the

incident. Had the witness mentioned the assailants at the earliest

opportune moment, we see no plausible reason why the appellants

should not have been arrested immediately. This waters down the

testimony of PW3, for, the ability of a witness to name a suspect at the

21
earliest opportunity is an important assurance of his reliability. And, in

the same way, an unexplained delay to name the assailants must put a

prudent court to inquiry - see: Marwa Wangiti and Another v.

Republic [2002] TLR 39. In the circumstances, we find and hold that

the identification of the appellants by PW3 was not watertight to sustain

a conviction against the appellants in respect of the second count. In

the premises, we are of the considered view that a retrial will not be

apposite in the circumstances.

We also wish to point out that the sentence meted out to the

appellants was omnibus. In sentencing the appellants, the following is

apparent in the judgment:

"The accused persons are convicted of murder

and there is only one sentence for this offence
that is death by hanging. In terms of section
26 (1) of the Penal Code/ Cap. 16 [R.E 2002}
the accused persons are sentenced to suffer
death by hanging/~

This sentence was certainly omnibus. We wish to reiterate what

the Court stated in Agnes Doris Liundi v. Republic [1980] TLR 46

that once an accused person is convicted of murder on more than one

counts, a sentence should be inflicted on only one count. There, like

22
here, the High Court convicted the appellant on three counts of murder

and sentenced her to death on each of the three counts. The Court held

at p. 50:

"The appellant was convicted on three counts

of murder. Sentence of death should only
have been passed on one count. The
convictions on the other two counts being
allowed to remain in the record. We
accordinglyamend the sentence to refer to the
conviction on the first count only".

Adverting to the case at hand, on the authority of Agnes Doris

liundi (supra), we hold that the learned trial judge should have

convicted the appellants on all three counts but should have sentenced

them in respect of only one count; the first count. The logic

encapsulated in this position is not far to seek; once a sentence in

respect of the first count is executed, there will be no person against

whom to execute the sentences in respect of the other counts.

For the avoidance of doubt, we have refrained from engaging

section 4 (2) of the AJA as implored by the learned advocates for the

appellants because the complaint over improper summing up to

assessorswas one of the grounds of appeal.

23
 For the reasons we have endeavoured to give, we find merit in this

appeal and allow it. We quash the respective convictions of the

appellants, and set aside the sentences meted out to them. We order

the immediate release of the appellants Apolinary Matheo, Barnabas

Alcado @ Siwingwa and Michael Claud @ Jolo unless held there for

some other offence.

Order accordingly.

DATED at MBEYA this 10th day of December, 2018.

B. M. MMILLA
JUSTICE OF APPEAL

S. E. A. MUGASHA
JUSTICE OF APPEAL

J. C. M. MWAMBEGELE
JUSTICE OF APPEAL

I certify that this is a true copy of the Original.

~\~
A. H. MS~I
DEPUTY REGISTRAR
COURT OF APPEAL

24