IN THE COURT OF APPEAL OF TANZANIA

AT BUKOBA

(CORAM: RUTAKANGWA, J.A., KIMARO,J.A.,And LUANDA, J.A.)

CRIMINAL APPEAL NO. 126 OF 2014

YUSUPH SYLIVESTER…………………………….………APPELLANT

VERSUS

THE REPUBLIC……………………………………….……RESPONDENT

(Appeal from the judgement of the High Court of Tanzania at Bukoba).

(Khaday, J.)

dated 6th March, 2014

in

Criminal Sessions Case No. 20 of 2013

……………..

JUDGEMENT OF THE COURT

9th & 18th February 2015

KIMARO, J.A.:

The appellant was convicted of intentionally causing the death

of Bukebero w/o Ndagiwe on 27th March 2010 at Katakoke village within

Biharamulo District in Kagera region. He was sentenced to suffer the usual

penalty for murder, that is death by hanging.

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 The evidence led in the trial upon which the appellant was convicted

was that, the deceased who was aged atabout 70 years at the time she

met her death was living alone. The only close neighbour of the deceased

was the appellant. Evidence was also led by the appellant himself that the

land upon which his house was built was sold to him by the deceased.

NtahondiChimpaye (PW2) testified that on 27 th March 2010, the

appellant reported to him that the deceased was not seen in her house.

PW2 was the ten cell leader of the area. PW2 reported the matter to

SeveriniMzuka (PW1) the Chairman of the Village. Subsequently an alarm

“mwano” was raised on 28th March 2010 and the villagers including the

appellantparticipated in the search for the deceased.PW1 and PW2 testified

that they were assured that the deceased was dead after squeezing the

appellant who gave in and confessed having caused the death of the

deceased. He led them to an area near his house where the dead body of

the deceased was found. The post mortem examination report was

admitted in court as exhibit P2 at the time the preliminary hearing of the

case was conducted. The report shows that the deceased died because of

excessive hemorrhage. She had multiple cut wounds at the head, neck,

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and other parts of the body. The medical opinion of the doctor was that

the cut wounds were probably inflicted by sharp objects.

The appellant retracted his confession at the time he gave his

defence. He denied ever killing the deceased. Nevertheless the learned

trial judge convicted the appellant basing his conviction on the evidence of

the prosecution that the appellant was the one who was living near the

deceased and he reported that she was missing. At the time for searching

the deceased, he discouraged the villagers to search for her nearbyher

residence. Instead, he suggested to the searching team to look for the old

woman far away from her house. It was after efforts to trace her failed,

that the village authorities squeezed the appellant to show the

whereabouts of the missing old woman that he eventually confessed to

having caused the death of the deceased. He led the searching team to

the place where the deceased was buried. When exhumation was done,

the body that was found in that place was identified to be that of the

deceased. Given the conduct of the appellant, the learned trial judge was

convinced that the appellant was the killer. She found the retracted

confession of the appellant to be an afterthought and she rejected it.

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 The appellant was aggrieved by the conviction and the sentence and

through Mr. Aaron Kabunga, learned advocate, he filed a five point

memorandum of appeal challenging the conviction and the sentence. The

grounds of appeal are as follows:

1. That the trial judge of the High Court erred in law and facts by

delivering judgment emanating from unprocedural trial on

account that the court assessors were allowed to cross-examine

witnesses.

2. That the trial judge of the High Court erred in law and facts by

delivering judgment emanating from unprocedural trial on

account that the assessors gave collective opinion instead of each

assessor to state his/her opinion as required by the law.

3. That the trial judge erred in law and facts to ground the conviction

relying on retracted confession of the appellant.

4. That the trial judge erred in law and facts to convict the appellant

relying on circumstantial evidence which was tainted with

unreliability and inconsistencies.

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 5. That the trial judge erred in law and facts to convict the appellant

when in fact the prosecution never proved the case on the

standard required by law.

When the appeal was called for hearing, both parties were

represented. As indicated above, Mr. Aaron Kabunga learned advocate

drew the memorandum of appeal for the appellant. He also appeared to

represent him during the hearing of the appeal. Ms. SakinaSinda, learned

Senior State Attorney represented the Respondent Republic.

In arguing the appeal, the learned advocate for the appellant argued

grounds one and two and four and five jointly. He took ground three

separately.Both grounds one and two relate to the assessors in respect of

the stage of trial when they should ask the witnesses questions and how

they should give their verdict in the case. The learned advocate for the

appellant faulted the learned trial judgefor allowing the assessors to cross-

examine the witnesses instead of putting questions to them and for giving

a joint verdict.

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 It was his submission that, in accordance with section 265 of the

Criminal Procedure Act, [CAP 20 R.E.2002] it is mandatory for the trials in

the High Court to be conducted in aid of assessors. However, unlike the

prosecution and the defence who have the right to examine, cross-examine

and re-examine the witnesses (See sections 288 and 290, CPA) said the

learned advocate, the participation of the assessors in the trial is confined

to putting questions to the witnesses as allowed by section 177 of the Law

of Evidence Act [CAP 6 R.E. 2002] and giving the verdict in the case after

assessing the evidence. They are supposed to assist the trial judge to

arrive at a just decision.

The learned advocate referred to the record of appeal at pages 13,

14, 18-19, 24 and 27 -28. The record shows that the assessors put

questions to the witnesses immediately after the defence counsel cross-

examined the witnesses. In the opinion of the learned advocate, it was

wrong for the trial court to allow the assessors to put questions to the

witnesses at that stage because that amounted to cross-examining the

witnesses, a right which the assessors did not have. The learned advocate

referred the Court to the case of MathayoMwalimu and Another V R

Criminal Appeal No. 174 of 2008 (Dodoma Registry) unreported and

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saidthesame issue was raised in that case but it was left undetermined. In

another case referred to by the learned advocate, R V

CrosperyNtagalinda @ Koro Criminal Appeal No. 73 of 2014 (Bukoba

Registry) unreported, the learned advocate said that the Court found the

procedure for allowing assessors to cross-examine witnesses to be contrary

to the procedure and it vitiated the proceedings.

As for the complaint of the assessors giving a joint verdict, the

learned advocate said it contravened the law. He said section 298 (1) of

Cap. 20 specifically provides that each assessor shall give his/her opinion

on the case. While section 298(4) allows the assessors to make

deliberations before arriving at a verdict, said the learned advocate, they

are however permitted to give an individual opinion and not a joint one. He

said that shortfall in the proceedings vitiates the proceedings.

On the ground concerned with the retracted confession of the

appellant, the learned advocate said a reasonable assessment of the

retracted confession would have led to the conclusion that the appellant

did not make any confession to the village leaders. Reasons to support his
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view are that the appellant was the one who reported that the deceased

was missing, he participated in searching for the deceased, and the

evidence of the prosecution witnesses was contradictory on the place

where the body of the deceased was recovered and the weapon which

was used to cause the death of the appellant.

Whereas both PW1 and PW2 testified that the appellant said he, in

collaboration with one Paschal and another person who were not arrested

killed the deceased by beating him with a stick, the post mortem

examination report (exhibit P2) showed that the body of the deceased was

foundin the bush and the deceased died because of wounds inflicted by a

sharp weapon. That caused the deceased to bleed excessively until her

death. He cited the cases of MaseloMwita@ Maseke& another V R

Criminal Appeal No. 63 of 2005 and BahatiMakeja V R Criminal Appeal

No. 118 of 2014 to augment his submission.

As for grounds four and five, the learned advocate said the

circumstantial evidence the learned judge relied uponto convict the

appellant was tainted with unreliability and inconsistencies and the

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evidence as a whole was not sufficient to convict the appellant. Because of

the irregularities in the procedure in conducting the trial and improper

assessment of the evidence that was led in the whole trial, the learned

advocate for the appellant prayed that the appeal be allowed and the

conviction and sentence be quashed and set aside.

The learned Senior State Attorney supported the conviction and the

sentence that was imposed on the appellant. In opposing the first and

second grounds of appeal, the learned Senior State Attorney said that what

the assessors did was normal in that they did not cross-examine the

witnesses but asked normal questions. She was of that view because of

the nature of the questions that were asked by the assessors. She

admitted that it was wrong for the assessors to give a joint verdict but her

considered opinion was that no injustice was occasioned to the appellant.

As for the retracted confession of the appellant, the learned Senior

State Attorney said that although the appellant denied having made the

confession, he assisted the village authorities to show where the deceased

was buried and as a matter of fact the body of the deceased was found at

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that place. In that respect, said the learned Senior State Attorney, section

31 of Cap 6 should be invoked in resolving the controversy. She said since

the appellant admitted that he had no grudges with the witnesses there is

no reason why this Court should doubt the credibility of the prosecution

witnesses. She prayed that the appeal be dismissed and the conviction

and sentence be sustained.

In our considered opinion, the issues raised in this appeal are easy to

resolve. Indeed the evidence on record shows that the deceased,

BukoberoNdagiwe died a violent death caused by multiple cut wounds

inflicted in her body by a sharp object. The issue the High Court had to

resolve was which person caused the death of the deceased. The trial

court’s finding was thatit was the appellant who committed the murder of

the deceased and for the reasons we have already stated.

The finding arrived at by the learned trial judge is faulted by the

learned advocate for the appellant for failing to direct the assessors

properly on the stage in the proceedings, at which they could put

questions to the witnesses and on how they should give their verdict in the

case. Incidentally it is admitted by both the learned advocate for the

appellant and the learned Senior State Attorney that the assessors failed to
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abide by the law in giving a joint verdict in the case. The learned

advocate and the learned Senior State Attorney are in variance on the

stage at which the assessors should be allowed to put questions to the

witnesses. The argument by the learned advocate for the appellant is that

since they were allowed to put questions to the witnesses after the cross-

examination by the defence counsel and the manner in which the

proceedings are recorded by the learned trial judge that was cross-

examination by the assessors and that went contrary to section 177 of Cap

6 which authorizes the assessors to put questions to the witnesses and not

to cross examine them. The record of appeal at pages 13, 14, 18-19, 24

and 27-29 supports the learned advocate for the appellant, that the

assessors were permitted by the trial court to put questions to the

assessors after the learned counsel had been through with the cross-

examination of the witnesses and before the learned Senior State Attorney

made the re-examination of the witnesses.

In the case of R V CrasperyNtagalinda @ Koro supra, the same

complaint was raised by the appellant(The Republic) in the appeal that the

trial court allowed the assessors to cross- examine the witnesses instead of

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putting questions to them as allowed by section 177 of Cap 6 of the laws.

The Court agreed that it was wrong for the Court to allow the assessors to

assume the role of the defence counsel in a trial. The Court held:-

“It is clear from the provision (having quoted section

177 of Cap 6 in full) that, in the cause of the testimony

by a witness, the assessors are mandated to put questions

to the witness, which is in our view, quite distinct from

the function of cross-examination. There are three modes

of examining a witness which are elaborately summed up

under the provisions of section 146 of the Evidence Act;-

1. The examination of the witness by a party who

calls him is called examination –in-chief.

2. The examination of a witness by the adverse party is

called cross-examination.

3. The examination by a witness, subsequent to cross

examination, by the party who called him is called re-

examiation.

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 As patently obvious from the foregoing subsection 2, the

function of cross-examination is the exclusive domainof

an adverse party to a proceeding. Having carefully

perused the record of the evidence, we are inclined to

share the sentiments of the learned State Attorney that,

quite unfortunately, the learned presiding judge gave

room to the assessors to cross-examine some

prosecution witnesses.”

The Court went on to reiterate what it held in MathayoMwalimu

(supra) that :-

“The purpose of cross-examination is essentially to contradict …

By the nature of their function, assessors in a criminal trial

are not there to contradict. Assessors should not, therefore,

assume the function of contradicting a witness in the case.

They should ask him/her questions.”

We entirely agree that the provisions of the laws quoted in the cases

guide the High Court in directing the assessors so that they perform their
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function properly.A question which arises here is at what stage should the

learned trial judge permit the assessors to put questions to the witnesses?

Should it be after examination- in- chief or after re –examination of the

witnesses?The Court went on and said:-

“ In our respectful opinion, however, we think that

assessors can safely ask questions after the re-examination…

By nature of their function, assessors in the criminal trial

are not there to contradict . They are there to aid the court

in a fair dispensation of justice. Assessors should not,

therefore , assume the function of contradicting a witness

in a case. They should only ask him/her questions.”

This practice has been followed in several trials conducted in the

High Court. Their role is to ensure that they understand the evidence

given by the witnesses in the case and give a fair verdict. See also the

case of Augustine Ludaru V R Criminal Appeal No. 70 of 2010

(unreported) where the Court stated that:-

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 “The role of the assessors is to assist the court to

arrive at a just decision…One, the court to avail the

assessors with adequate opportunity to put questions

to witnesses. Through questions the assessors will help

the court to know the truth.”

As already indicated above, the learned Senior State Attorney

admitted that the learned trial judge erred in allowing the assessors to give

a joint verdict. Section 298 (1) of Cap 20 is clear that each individual

assessor must give his/her opinion although they are permitted by section

298(4) of Cap. 20 to have consultations before arriving at their verdict.

The record of appeal at page 71 shows that after the learned trial judge

had summed up to the assessors, they were granted ten minutes for

deliberations and when the trial resumed, one of the assessors read a joint

verdict. The other remaining two assessors did not say whether or not

that is what they had agreed upon. What transpired in court when the trial

resumed is reproduced below:-

“Later on at 11:00 hours

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 Coram as above

2ndAssessor: We have come up with a common

opinion. We have anonymous (sic) verdict that the accused

is guilty of the offence he stands charged…

Sgd. Amour Abdallah

Sgd. ApolinaryBaltazary

Sgd. AdveraPonsian.”

With respect we agree that the trial was conducted without following

the procedure for guiding the assessors. That was an irregularity which

vitiated the proceedings.

The next question to be resolved is what should be the remedy of the

parties in this appeal. But before that let us make an observation of

another irregularity noted in the proceedings. On the date when the trial

started, the names of the assessors were not disclosed. Even on the

subsequent dates when the court continued with the trial after

adjournments, the coram does show that the assessors were present in
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court. Their names are not recorded much as the proceedings show that

they asked the witnesses questions. There is, therefore, no guarantee that

the trial was conducted with the aid of the same assessors. This is a

serious omission.

Whenever the court sits with assessors, it must show in the coram

whether the assessors are present or not. This is important for

ascertaining compliance with trials in the High Court as given by section

265 of Cap. 20.

Coming to the remedy the parties are entitled to, the Constitution of

the United Republic of Tanzania guarantees every person the right to life.

BukoberaNdagiwe lost her life in criminal acts forbidden by the laws. In

this respect, we are of the considered opinion that given the irregularities

committed by the trial court during the trial of the case and the seriousness

of the offence which the appellant was charged with, we are satisfied that

this is a proper case for ordering a retrial of the case. Consequently, the

proceedings are quashed and the conviction and sentence set aside and we

order a retrial. The trial should be conducted expeditiously by a different

judge and different assessors.

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DATED at BUKOBA this 17thday of February, 2015.

E.M.K.RUTAKANGWA
JUSTICE OF APPEAL

N.P.KIMARO
JUSTICE OF APPEAL

B.M.LUANDA
JUSTICE OF APPEAL

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

E.Y. MKWIZU
DEPUTY REGISTRAR
COURT OF APPEAL

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