ABDALLAH BAZAMIYE AND OTHERS v REPUBLIC 1990 TLR 42 (CA)

 ABDALLAH BAZAMIYE AND OTHERS v REPUBLIC 1990 TLR 42 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Nyalali CJ, Makame JJA and Ramadhani JJA

16 June 1990

Flynote

F Criminal Practice and Procedure - Assessors not given opportunity to put

questions to witnesses - Whether trial with the aid of assessors - Effect - Section 265

of the Criminal Procedure Act, 1985.

-Headnote

G The appellant Abdallah Bazamiye and five others, namely Juma Machupa, Hamisi

Obadia, Mangapi Sajini and Said and Samson Ntilikungwa were convicted of murder

and consequently sentenced to death for assaulting to death one Enock Hinyonza

Masharubu allegedly, a train robber.

H It was apparent on the trial judge's record that the gentlemen assessors were not

given the opportunity to put questions to witnesses although the learned trial judge

agreed with the assessors' opinion.

I Held: (i) Denying the assessors the opportunity to put questions means that the

assessors were excluded from fully participating in the trials;

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NYALALI CJ, MAKAME JJA and RAMADHANI JJA

(ii) to the extent that they were denied their statutory right, they were

disabled from effectively aiding the trial A judge who could only benefit fully as he

would have if he had taken into judicious account all the views of his assessors;

(iii) assessors' full involvement in the trial is an essential part of the process, its

omission is fatal, and renders the trial a nullity. B

Case Information

Proceedings quashed.

Rugarabamu, for the appellant

Mtaki, for the respondent C

[zJDz]Judgment

Nyalali, C.J., Makame and Ramadhani, JJ.A.: The deceased in the case giving rise to

this appeal, Enock Hinyonza Masharubu, was alleged to be a train robber and the

contention by the Republic was that he was assaulted to death by the appellants who

intended that he should die or suffer grievous harm. During the same D session of

assault, the Republic contended, a prosecution witness and an alleged companion of

the deceased, a man by the named of Fidelo Mgudo, had both his ears chopped off

with a knife by one of the appellants. Both gentlemen assessors who sat with the

learned trail judge opined that all the appellants were guilty of murder. The E

learned trial judge (Korosso, J.) agreed with the assessors, convicted the appellants for

murder, and accordingly condemned them to death. They have appealed to us against

that decision and their advocate for the purpose was Mr. Rugarabamu, learned

counsel. Mr. Mtaki, learned Senior State Attorney represented the respondent

Republic. F

Mr. Rugarabamu came armed with four grounds of appeal seeking to demolish the

trial court's decision but before he could make use of his forensic arsenal we drew his

attention to a possible issue he might wish to address us on, and it was this: Whether,

if the assessors were not given the opportunity to put questions to the witnesses, the

trial G could be said to have been with the aid of assessors, and what the effect

would be, in law, if the said trial was not with the aid of assessors. We had to stand

down the appeal for a brief while so as to give time to counsel to organize himself and

prepare his response. H

On resumption Mr. Rugarabamu submitted that because under section 265 of the

Criminal Procedure Act all trials before the High Court shall be with the aid of

assessors, where such a trial is not with the aid of assessors it is a nullity. He also drew

our attention to section 177 of the Evidence Act under which: I

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NYALALI CJ, MAKAME JJA and RAMADHANI JJA

A In cases tried with assessors the assessor may put any questions to the witness,

through or by leave of the judge, which the judge himself might put and which he

considers proper.

B Mr. Rugarabamu also submitted that it is discernible from the record of trial that

the assessors were not invited to put questions to witnesses for, had they been, and

they merely declined to accept the invitation because they did not have any questions

to ask, or if they had indicated to the trial judge that they wished to put particular

questions all of C which the trial judge did not consider proper, the record would

have said something like that the questions were 'NIL'. Learned counsel also

addressed us on section 290 of the Criminal Procedure Act which provides:

D The witnesses called for the Prosecution shall be subject to cross-examination by

the accused person or his advocate, and to re-examination by the advocate for the

prosecution.

E If we correctly understood Mr. Rugarabamu, as we reckon we did, he wondered

why assessors were not referred to in section 290 like they were mentioned in section

265. Now section 290 deals with witnesses for the case for the Prosecution. We note

that it has its counterpart-section 294, when one comes to the case for the F

Defence. We do not, however, propose to detain ourselves too long with considering

any of the above two sections because, for our present discussion, they are completely

irrelevant. They deal with cross-examination and re-examination of witnesses and the

accused, none of which is the function of assessors. It is not the duty of G assessors to

cross-examine or re-examine witnesses or the accused. The assessors' duty is to aid the

trial judge in accordance with section 265, and to do this they may put their questions

as provided for under section 177 of the H Evidence Act, 1967. Then they have to

express their non-binding opinions under section 298 of the Criminal Procedure Act,

1985. We might mention here that, in practice, when they put their questions under

section 177 of the Evidence Act 1967 other than through the judge, they do so

directly, the leave of the judge being implicit in the judge not stopping them from

putting their questions. That is, the discretion remains with the judge to prevent the

asking of questions which are, for example patently irrelevant, biased, perverse, or

otherwise improper.

I Mr. Mtaki, learned Senior State Attorney, did not seek to challenge Mr.

Rugarabamu's submission that the trial judge's failure to comply

1990 TLR p45

NYALALI CJ, MAKAME JJA and RAMADHANI JJA

with section 265 of the Criminal Procedure Act 1985 made the trial not with the aid

of assessors and so rendered A it a nullity. Very briefly, denying the assessors the

opportunity to put questions, as we are satisfied was the case in the proceedings

below, means that the assessors were excluded from fully participating in the trials; so

to the extent that they were so excluded, and denied their statutory right, they were

disabled from effectively aiding the trial judge B who could only benefit fully if he

took into judicious account all the views of his assessors and those would only emerge

from their own appreciation of the case as a whole. Such appreciation would have

been influenced and shaped partly by the assessors' sheer need to articulate their own

questions which cross their minds as they go C along, and by their own perception

of the factual issues involved, as assisted by the assessors' exchanges with the

witnesses and the accused. We think that the assessors' full involvement as explained

above is an essential part of the process, that its omission is fatal, and renders the trial

a nullity. We wish to add another thought to this D exposition: For our purpose in

the Court of Appeal, the informed and full views of the assessors become further

necessary when we have to rely on what we might call the Segesela principle, that is

in the event of the trial judge disagreeing with the unanimous views of his assessors

we shall want to determine whether he was entitled to do so. E In order to enable us

to make that determination meaningfully we must know the judge's reasons for so

disagreeing, and to appreciate those reasons we would have to gauge them against the

full and informed views of the assessors which they can only express satisfactorily if

the trial was with their aid as explained. This need for a F judge to give his reasons

for disagreeing with the unanimous views of his assessors was enunciated in Charles

Segesela v R., E.A.C.A criminal appeal no. 13 of 1973, from a case tried in Tanzania,

and we wish to express our approval of it. G

For reasons we have endeavoured to explain the High Court proceedings in the case

giving rise to this appeal are a nullity. We accordingly quash them and order a retrial

of the appellants.

Proceedings quashed. H

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