CHARLES SAMSON v REPUBLIC 1990 TLR 39 (CA)

 

CHARLES SAMSON v REPUBLIC 1990 TLR 39 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Nyalali CJ, Makame JJA and Ramadhani JJA

16 June 1990 G

Flynote

Criminal Practice and Procedure - Alibi - Defence of - Failure of court to take

cognizance of - Failure of court to direct assessors on the defence - Effect.

Criminal Practice and Procedure - Alibi - Defence of - Failure of accused to disclose

defence before prosecution closes H its case - Effect.

-Headnote

Before the High Court at Mwanza was Charles Samson, the Appellant, charged with

the offence of murder, c/s 196 I of the Penal Code, Cap 16. The learned trial judge

convicted him and sentenced him to suffer death

1990 TLR p40

NYALALI CJ, MAKAME JJA and RAMADHANI JJA

A by hanging. In the trial court the appellant raised the defence of alibi to which

the trial judge made no reference when summing up the case to the assessors.

Aggrieved by the conviction and sentence, the appellant filed an appeal raising,

among other grounds, the trial B judge's failure to address the assessors and himself

on the appellant's defence of alibi.

Held: (i) The court is not exempt from the requirement to take into account the

defence of alibi, where such defence has not been disclosed by an accused person

before the prosecution closes its case;

C (ii) where such disclosure is not made, the court, though taking cognizance of

such defence, may in its discretion accord no weight of any kind to the defence;

(iii) in the present case, the court took no cognizance whatsoever of the alibi,

both in the summing up to the assessors and in the judgment thus occasioning a

mistrial and a consequential miscarriage of justice.

Case Information

D Appeal allowed.

Rugarabamu, for the appellant

E Malamsha, for the respondent

[zJDz]Judgment

Nyalali, C.J., Makame and Ramadhani, JJ.A.: The appellant Charles Samson was

charged and convicted in the High Court at Mwanza for the offence of murder c/s 196

of the Penal Code and was sentenced to suffer death F by hanging. He was aggrieved

by the conviction and sentence hence this appeal to this court. Before us he was

represented by Mr. Rugarabamu, learned advocate, who filed a memorandum of

appeal containing two grounds of G appeal. Mr. Malamsha, learned State Attorney

appeared for the respondent/ Republic.

From the proceedings in this court and the court below the following matters are not

in dispute between the parties. During the night of Saturday 3rd October, 1987 the

dwelling house of one Charles Tinga in Magu Town, Magu H District, was invaded

by a group of bandits, who broke into his room, shot him dead and demanded and

were given money amounting to shs. 106,000/= by the wife of the deceased, that is

Elizabeth Magushi, (PW.1). Thereafter the bandits went away. PW.1 raised an alarm

in response to which a group of people, including the police, came to the I scene. It

is common ground that there was bright moonlight at the material time. Subsequently

the appellant was arrested the following day in the evening. It is common ground also

that on the

1990 TLR p41

NYALALI CJ, MAKAME JJA and RAMADHANI JJA

7th day of October 1987 the appellant was identified by PW. 1 and her son, that is

Japhet Tinga (PW.2) at an A identification parade mounted by the police.

It is apparent from the proceedings both in this court and the court below that the

following matters of fact are in dispute between the parties. It is the prosecution case

that the appellant was one of the bandits and was in fact the B person who shot

dead the deceased. On the other hand the defence case consists of a general denial and

an alibi to the effect that at the material time the appellant was at home playing cards

with his family and a neighbour until he went to sleep at about 11.30 p.m.

In his memorandum of appeal the appellant raises one important point which, if

sustainable, makes it unnecessary C for us to consider his other grounds of appeal.

The ground reads as follows:

The learned trial judge failed to address the assessors and direct himself on the

appellant's defence of an alibi and D under circumstances erroneously convicted the

appellant.

It is apparent from the brief summing up and the judgment of the learned trial judge

that no reference is made to the appellant defence of alibi. Mr. Malamsha concedes as

much. He however submits that the failure to direct the E assessors on this defence

of alibi and the omission by the trial judge to consider this defence in his judgment, is

not fatal to the trial because, the appellant, on his part failed to comply with the

provisions of section 194 subsections (4), (5) and (6) of the Criminal Procedure Act

1985. These provisions require an accused person seeking to rely on F an alibi, to

disclose it before he is called upon to defend himself. With due respect to Mr.

Malamsha, we are unable to agree with his submission. The provisions of subsections

(4), (5) and (6) of section 194 state as follows:

(4) Where an accused person intends to rely upon an alibi in his defence,

he shall give to the court and the prosecution G notice of his intention to rely on

such defence before the hearing of the case.

(5) Where an accused person does not give notice of his intention to rely

on the defence of alibi before the hearing of the H case, he shall furnish the

prosecution with the particulars of alibi at any time before the case for prosecution is

closed.

(6) If the accused raises the defence of alibi without having first furnished

the particulars of the alibi to the court or the I prosecution in pursuant to this

section, the court at its own discretion, may accord no weight of any kind to the

defence.

1990 TLR p42

A It is obvious, on a proper construction of the provisions of this section, that the

court is not exempt from the requirement to take into account the defence of an alibi,

where such defence has not been disclosed by an accused person before the

prosecution closes its case. What this section means is that where such disclosure is

not made, B the court, though talking cognizance of such defence, "May in its

discretion, accord no weight of any kind to the defence".

In the present case the court appears to have taken no cognizance whatsoever of the

alibi, both in the summing up C to the assessors and in the judgment. There was thus

a mistrial and a consequential miscarriage of justice. We are bound therefore to allow

the appeal by declaring the trial a nullity, quashing the proceedings and directing that

a new trial of the appellant be undertaken either before the same or another judge.

D Appeal allowed.

1990 TLR p42

E