Ajili v Republic (Criminal Appeal No. 316 of 2015) [2016] TZCA 6; (04 August 2016);

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IN THE COURT OF APPEAL OF TANZANIA

AT IRINGA

(CORAM: MJASIRI, J.A., JUMA, J.A., And MUGASHA, J.A.)

CRIMINAL APPEAL NO. 316 OF 2015

AJILI AJILI ......................................................................APPELLANT

VERSUS

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

(Appeal from the decision of the Resident Magistrate of Court of Ruvuma at Songea)

(Dyansobera, PRM (Ext. Jurisdiction.)

Dated the 12th day of May, 2012

in

Criminal Session No. 29 of 2011

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JUDGMENT OF THE COURT

5th & 5th day of August, 2016

JUMA, J.A.:

Ajili Ajili, the appellant, was charged with murder contrary to section 196 of the Penal Code [Cap. 16 R.E. 2002]. The particulars of the offence were that on the 18th day of June, 2011 at Sautimoja village, Tunduru District, Ruvuma Region, the appellant murdered one AJILI ISMAIL, hereinafter referred to as "the deceased".

At the conclusion of the trial in the Resident Magistrate's Court of Ruvuma, W.P. Dyansobera, PRM-E.J. convicted the appellant of the offence of murder and sentenced him to suffer death. Being dissatisfied with the said conviction and sentence, the appellant preferred this appeal to this Court.

The evidence before the trial court may be summarized as follows. The deceased had two wives, Sophia Hassan (appellant's mother) and Aziza Limbuni (PWl). On the night the deceased died, he and his wife PW1 were eating their supper on that moonlit night when the appellant came around 19:30 with an axe which he used to hit the deceased. PW1 cried for help by calling out the name of Mustafa Ajili (PW2) to come over to offer help. PW2 picked up his lamp and walked over to PW1's house. By then the appellant had disappeared. There was blood where the body of the deceased lay motionless on the floor near unfinished food. Distraught, PW2 secured a bicycle which they used to transport the deceased to the Village Executive Officer (VEO). On instruction of the VEO, they took the deceased to the hospital. According to the post-mortem examination report (exhibit P1) the deceased's death was caused by bleeding due to head injury.

In his affirmed testimony the appellant denied the accusation that he killed his father. He insisted that he did not know where his father was.

Mr.    Rwezaula Kaijage, learned counsel for the appellant filed a Memorandum of Appeal and raised the following four grounds of appeal:

1.   The Hon. trial Judge erred in law by departing from the principle of proof in criminal cases and therefore arrived at a wrong decision.

2.    The Hon. trial Judge greatly erred in law by finding the appellant guilty of an offence without any clear evidence implicating accused with the death of the deceased

3.   The Hon. trial Judge erred in law by relying on incredible witnesses.

4.   The Hon. trial Judge greatly erred in law and fact by failing to take into account some material points or circumstances before reaching his decision.

At the hearing of this appeal on 5th August, 2016, the appellant was represented by Mr. Rwezaula Kaijage, learned Advocate. The respondent Republic was represented by Mr. Shabani Mwaigole learned State Attorney. The learned State Attorney sought our leave to withdraw a Notice of Preliminary Objection which the respondent filed on 4th August, 2016. We agreed, and marked the same as withdrawn.

Before we allowed the learned advocate for the appellant to address us on the merit of the grounds of appeal, the Court referred to the record of proceedings and suo motu, asked him to address us on two salient matters which we think affected the regularity of the entire trial proceedings. Firstly, we wanted to know the propriety of the trial court presenting the witnesses to be asked questions by the three assessors immediately after the examination-in-chief by the learned State Attorney (Mr. H. Nkoleye) who called the witnesses concerned and before the defence counsel (Mr; D. Ndunguru) had the opportunity to conduct the cross-examin9tion. Secondly, the Court wanted to satisfy itself whether during the course of the trial, the assessors embarked on examination-in- chief, cross-examination and re-examination, which is beyond putting across questions to witnesses as required of assessors under sections 146 and 177 of the Law of Evidence Act, Cap. 6.

After a brief moment perusing the trial court's record, Mr. Rwezaula quickly conceded that the assessors overreached their statutory duty to aid the trial High Court. He referred us to pages 12 to 15 of the record where the evidence of PW1 appears and submitted that after the State Attorney had conducted the examination-in-chief, it was not appropriate for the three assessors to come and put across questions before the learned counsel for the defence had a chance of subjecting the witness to cross­ examination. He referred us to section 147 (1) of the Evidence Act, Cap. 6 which prescribe that an examination-in-chief shall be followed up with the cross-examination:

"147.-(1) Witnesses shall be first examined-in-chiet then (if the adverse party so desires) cross-examined, then (if the party calling them so desires) re-examined. N

The learned counsel for the appellant next asserted that the three assessors encroached into the role of the party that called witnesses and became part of the examination-in-chief. This encroachment, he submitted infringed the boundaries of the role of assessors as is prescribed under sections 265 of the Criminal Procedure Act, Cap 20 (the CPA) and 177 of the Evidence Act which state:

The CPA:

265.-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.

Evidence Act:

177.-ln cases tried with assessors, the assessors may put any questions to the witness, through or by leave of the court, which the court itself might put and which it considers proper.

And because the assessors are by virtue of section 265 of the CPA part of the trial High Court, the learned counsel continued, their assumption of the role of the party who called the witness, made the whole trial partial and unfair. There was no fair trial, he concluded his submission.

Faced with such an incurable irregularity, Mr. Rwezaula urged the Court to invoke its power of revision under section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 (AJA), to nullify all the trial proceedings, order a fresh trial, which should be presided by another trial Judge and a new set of assessors.

On his part, Mr. Mwaigole wholly concurred and agreed with his learned colleague that it was an incurable irregularity for the assessors for assessors to be allowed to appear after examination-in-chief and before the cross-examination by the learned counsel for the defence. He referred us to pages 12, 15, 18 and 20 where the prosecuting learned State Attorney's examination-in-chief of PWl, PW2, PW3 and PW4 is prefixed by the symbol "XD" to imply he was conducting examination-in-chief. He drew our attention to the same symbol "XD" which is employed when assessors put across their questions immediately after the State Attorney. Mr. Mwaigole submitted that all this implied that the assessors were a continuation of the examination-in-chief.

Like the learned counsel for the appellant, the learned State Attorney urged us to invoke our power of revision and order a trial de nova before a different trial Judge and a new set of assessors.

On our part, we entirely agree with the two learned counsel that the irregularities they highlighted not only violated the applicable statutory provisions they cited to us, but vitiated the procedural justice in terms of fair trial.

Looking at the evidence of all the four prosecution witnesses, Mr. H. Nkoleye, learned State Attorney who conducted the prosecution on the behalf of the Republic, duly subjected his witnesses to examination in chief. Inexplicably, the three assessors immediately followed up. Mr. D. Ndunguru the learned Advocate for the accused person followed after the assessors with the cross-examination. Re-examination by Mr. Nkoleye then completed the cycle.

The pattern changed slightly when the appellant testified in his defence as DW l. Mr. Ndunguru subjected his defence witness to examination in chief. Then, Mr. Emmanuel Medalkin who appeared for the Republic followed with the cross-examination. But, instead of waiting for re-examination, the three assessors followed-up after the cross­ examination. DW l concluded his testimony by his re-examination by Mr. Ndunguru.

An illustrative example of assessors veering beyond their role is evident when the deceased's wife (PW l) testified as an eye-witness to the offence of murder. After her evidence-in-chief, she was presented to the three assessors instead of being presented to the adverse party (i.e. the learned counsel for the defence), for cross-examination. The following excerpt of the response which PW l gave shows the extent the assessors assumed the roles of examination-in-chief:

"XD 1st ASSESSOR

(Zaitun Chimbalanga)

That was the first time the accused came at home to ask the whereabouts of his father. I have not heard at mine (sic) the accused having quarrels with his father. When he came with an axe, he was alone. There is no day I heard the accused losing his senses.

XD 2nd ASSESSOR

(Issa Pelekamoyo)

The accused hackle (sic) the deceased on his head. The accused was not used to coming to my home looking for his father.

XD 3rd ASSESSOR

(ALLY KASSIM)

I have five children my co-wife has also children. There is no time I quarrelled with my co-wife. Our children have not quarrelled. I have not been in bad blood with the accused.

The above excerpt aside, the nature of the questions which the three assessors put across to the appellant when he testified in his defence as DW l, was anything but cross-examination which extracted a "confession" from the appellant that he hit his father with an axe:

XD 1st Assessor (MR. ISSA PELEKAMOYO)

(Accused silent as to what caused the death)

I admit that I hit mv father with an axe on the head.

XD MR. ALLY KASSIM (2nd Assessor)

After I did the act at night the following day in the morning I was told that I ....my father.

XD ….. (3rd Assessor)

It is Stamin Majaliwa/ Razack Kassim/ Saidi Saidi and Hussein Hassan who told me that my father was dead.

(Accused silent when asked if the death of his father was caused bv the accused's killing the deceased with the axe). [Underlined added].

As regards the issue of assessors taking up active examination-in- chief of prosecution witnesses and later cross-examination of the accused person, the two learned counsel have rightly conceded that these were incurable irregularities vitiating the entire trial in the High Court.

This Court has in innumerable decisions censured the practice of  assessors taking up the cross-examination of witnesses. In Francis Alex vs. R. Criminal Appeal No. 374 of 2013 (unreported) the Court had to intervene when it became apparent that the assessors were allowed to actively cross-examine witnesses, instead of putting out questions:

"We are in agreement with the submissions of the two learned counsel that the case of Omary Rashid @ MAKOTI vs. R. (supra) which they cited to us restates what the Court has through its many decisions settled down the law that assessors should not be allowed to cross-examine witnesses. In Mathayo Mwalimu 2. Masai Rengwa vs. R., Criminal Appeal No. 147 of 2008 (unreported) the Court expressly pointed out that- ...in criminal trials assessors do not cross examine. They ask questions:

'...Before we end this judgment we wish to address one point for future guidance to trial Judges and Resident Magistrates with Extended Jurisdiction. We notice that in this case the trial judge sat with three assessors, MARIAM SELEMANI, HADIJA SAID and YUSUF MADA!. That was perfectly in order because in terms of Section 265 of the Act all trials before the High Court are with the aid of assessors the number of which shall be two or more as the court thinks fit. However, in the course of the trial the judge gave room to the assessors to cross examine witnesses. With respect, we think this was wrong. In a criminal trial assessors do not cross-examine. They ask questions. [Emphasis added].'

In Ramadhani Seifu @ BAHARIA, Jema Omary @ MWENYEKITI & Tuju ane Juma @TUJU vs. R., Criminal Appeal No. 221 of 2010 (unreported) the Court had the occasion to discuss the essence of section 177 of the Evidence Act that the assessors should only put questions to witnesses. In its discussion/ the Court expounded the objectives of cross-examination which are not within the realm of the role of assessors in criminal trials:

"... The object of cross-examination is to contradict, impeach the accuracy, credibility and general value of the evidence given in chief/ to sift the fact already stated by the witness/ to detect and expose discrepancies or to elicit suppressed fact which will support the case of the cross-examining party. We think that this is not what is anticipated in a criminal trial conducted with the aid of assessors. By the nature of their function assessors in criminal trial are not there to contradict. Their role is 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 (See Mathayo Mwalimu and another V.R Criminal Appeal No. 147 of 2008 (unreported). That said, in the case under our consideration, we clearly express that it was wrong for the trial judge to give room to the assessors to cross examine the prosecution witnesses. By doing so, obviously it tremendously tainted the case for the Prosecution. " [Emphasis added].

This settled position the Court has taken has its basis in the interpretation of sections 146, 147 (1) and 177 of the Evidence Act which both Mr. Rwezaula and Mr. Mwaigole cited to us. From these provisions the Court has emphasized that the assessors assisting the trial High Court can neither conduct examination­ in-chief of witnesses, nor can they cross-examine or even re-examine witnesses. Section 146 restricts the rights of examination-in-chief, cross-examination and re­ examination to the respective parties who called the witnesses concerned in the following ways:

"146.-(1) The examination of a witness by the party who calls him is called his examination-in-chief.

(2)    The examination of a witness by the adverse party is called his cross-examination.

(3)    The examination of a witness/ subsequent to the cross-examination by the party who called him is called his re-examination. "

It seems clear to us that sub-sections (1), (2) and (3) of section 146 read together with section 147 (1) of the Evidence Act are logically arranged as to envisage a sequential orderliness in taking evidence from the witnesses. This orderliness begins with examination-in-chief of a witness "by the party who calls him/ '' followed by cross-examination by "the adverse par "and lastly by re-examination "by the party who called" the witness in question. The law espoused in these provisions do not expect any reversal of the sequential orderliness.In Kulwa Makomelo, Kisena Lutonja and Catherine John vs. R., Criminal Appeal No. 15 of 2014 (unreported) the Court in clearest terms alluded to this sequential orderliness in receiving evidence from the witnesses:

". ..Examination and cross-examination of witnesses is regulated by law. The order in which witnesses are to be examined in court is set out in section 146 of the Evidence Act ... "[Emphasis added].

Much earlier in Mathayo Mwalimu and Masai Rengwa vs. R., Criminal Appeal No. 147 of 2008 (unreported) the Court expressed itself about when the assessors should come in to put across their questions:

“As at what stage in the trial can assessors ask questions, we think that this depends on the trial judge. In our respectful opinion, however, we think that assessors can safely ask questions after the re-examination of a witness. " [Emphasis added].

It need not, therefore, be over-emphasized that the phrase "...trials before the High Court shall be with the aid of assessors... "in section 265 of the CPA does not envisage the assessors usurping the role of parties in either cross-examination or re-examination of the witnesses. - See­ Omari Khalifan vs. R., Criminal Appeal No. 107 of 2015 (unreported). As the two learned counsel have submitted, the role of assessors is emarcated under section 177 of the Evidence Act, Cap. 6, which provides:

"177. In cases tried with assessors/ the assessors may put any questions to the witness/ through or by leave of the court which the court itself might put and which it considers proper. N

Trial High Court conducting trials with the aid of assessors has a duty to guide the assessors to ensure that they remain within their statutory boundaries. The Court said as much in R. vs. Crospery Ntagalinda @ KORO, Criminal Appeal No. 73 of 2014 (unreported):

"We should add that the presiding Judge should warily guide the assessors' questions and see to it that they are within the permissible mandate. As is clearly fortified by section 177 of the Evidence Act the assessors function is to put questions to a witness is to be effected "through or by leave of the court/ [Emphasis added].

Having reiterated so much that the role of assessors is to put out questions to witnesses but not to assume the role of the parties, this matter before us calls for the exercise of the Court's power of revision under section 4 (3) of the AJA. We hereby invoke our revisional jurisdiction and we nullify, quash and set aside all the proceedings before the trial Resident Magistrate's Court (Extended Jurisdiction) at Tunduru (Songea Registry) together with the resulting Judgment which W.P. Dyansobera- PRM (EJ) delivered on 19th June, 2015.

We finally direct that Criminal Session Case No. 29 of 2012 should begin afresh as soon as practicable before another trial Judge and another set of assessors. It is so ordered.

DATED at IRINGA this 5th day of August, 2016.

S. MJASIRI

JUSTICE OF APPEAL

I.H. JUMA

JUSTICE OF APPEAL

S.E.A.MUGASHA

JUSTICE OF APPEAL

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

B. R. NYAKI

DEPUTY REGISTRAR

COURT OF APPEAL