NYEHESE CHERU v REPUBLIC 1988 TLR 140 (CA)

 

NYEHESE CHERU v REPUBLIC 1988 TLR 140 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Makame JJA, Kisanga JJA and Omar JJA

1 August, 1988

Flynote

Criminal Practice and Procedure - Assessors - Recruitment of a new assessor after the

F hearing has started - Ground for vitiating the proceedings.

Criminal Practice and Procedure - Unsolicited order of the Court to exhume -

Whether properly made. G

-Headnote

On 18/8/87 Korosso J. condemned to death the appellant Nyehese Cheru following his

conviction for the murder of his wife Kema Ntahaliye. In the Court of Appeal the H

appellant argued three grounds and prayed for a trial de novo. The respondent did not

resist appellant's submission as he also felt that an order for a new trial would be the

right thing. On 4/10/79 assessors Yusuf Omari and Mohamed Omari sat with Mushi, J.

and on the following day the case was adjourned for good reasons. On 25/3/82 Omari

Sungura and Hamis Kabwe in their capacity as assessors assisted Rubama, J. who I

started hearing the case de novo. Due to unavailability of the remaining

1988 TLR p141

MAKAME JJA, KISANGA JJA AND OMAR JJA

prospective witness, the matter was adjourned four days later. Over two years later A

Chipeta J. made the order that "As the learned trial Judge is away for treatment,

hearing is adjourned to next session". After almost three years Korosso, J. took over

the conduct of the case and on record it is indicated that he sat with Rubama, J.'s

Omari Sungura and a new assessor Fadhiri Hamidi. B

Held: (i) Neither the old Criminal Procedure Code nor the current Criminal

Procedure Act allows a new assessor to be recruited after the hearing has started;

(ii) under section 270 of the Criminal Procedure Code, what a trial judge was

C empowered to do was to continue with only the remaining assessor or assessors;

(iii) under section 286 of the current Criminal Procedure Act, if an assessor is

absent, the trial shall proceed before the remaining assessors but only if they are not

less than two in number; D

(iv) both under the Code and under the Act the absence of an assessor had to

be coupled with the condition that it is not practicable immediately to enforce his

attendance.

Case Information

Appeal allowed. E

No case referred to.

Butambala, for the Appellant

Nyabiri, for the Respondent. F

[zJDz]Judgment

Makame, Kisanga and Omar, JJ.A.: The High Court sitting at Tabora (Korosso, J.)

condemned to death the appellant Nyehese Cheru following his conviction for the

murder of his wife Kema Ndabawaliye, the mother of P.W.1 and P.W.5. Mr. G

Butambala, learned advocate representing the appellant before us, filed a total of six

grounds, but in the event argued only three, and prayed for a trial de novo. Mr.

Mussa, learned attorney for the respondent Republic, did not seek to resist Mr.

Butambala's submissions as he, too, felt that an order for a new trial would be the

right thing. H

With respect, we think that the case could have been presented and tried a lot more

carefully.

Mr. Butambala's first complaint was that the learned High Court judge, when he took

over, tried the case with one original assessor and another quite new assessor. We

wish I first to observe two things in connection with this ground: First, that there is

no

1988 TLR p142

MAKAME JJA, KISANGA JJA AND OMAR JJA

indication in the record as to what happened to the gentleman assessor who

disappeared A from the scene, Hamisi Kabwe, and why, therefore, it was felt

necessary to import a new gentleman assessor, Fadhiri Hamidi. Second, that Mr.

Nyabiri, learned State Attorney conducting the case before Korosso, J., clearly misled

the trial court when he B informed it, on 18th August, 1987, that "The two

Gentlemen Assessors are the very ones who participated in the trial of the case with

the previous judge." This was patently incorrect, and quite misleading. In this case,

which had a chequered history, assessors Yusuf Omari and Mohamed Omari sat with

Mushi, J.; Omary Sungura and Hamisi C Kabwe assisted Rubama, J., when the trial

started de novo and the evidence of four Prosecution witnesses was taken; and then,

when Korosso, J., took over and heard the last witness, Juma Nyemese, he sat with

Rubama J's Omary Sungura and as aforesaid, a new person, Fadhiri Hamidi.

Mushi, J. heard one witness on 4th October 1979 and on the following day, for a good

D reason clearly recorded, and to which we shall have occasion to refer later in this

judgment, the case was adjourned. On 25th March, 1982 Rubama, J. started hearing

the case afresh and four days later he adjourned the matter because the remaining E

prospective witnesses were not available. When over two years later, on 4th

September, 1984, Juma Nyehese showed up Chipeta, J. made the following order. "As

the learned trial judge is away for treatment, hearing is adjourned to next session.

Accused F.R.I.C." Then apparently nothing else happened until after almost three

more years when, on 18th F August 1987, Korosso, J. took over the conduct of the

case.

Neither the old Criminal Procedure Code nor the current Criminal Procedure Act

allows a new assessor to be recruited after the hearing of the case has started. Under

Section G 270 of the Criminal Procedure Code what a trial judge was empowered to

do was to continue with only the remaining assessor or assessors. Under Section 286

of the current Criminal Procedure Act if an assessor is absent "the trial shall proceed

before the remaining assessors but only if they are not less than two in number ...."

And both under H the Code and under the Act the absence of an assessor had to be

coupled with the condition that it is not practicable immediately to enforce his

attendance.

This first ground of complaint is enough to vitiate the proceedings, but there is more.

The second ground argued by Mr. Butambala was that in taking over the conduct of

the I proceedings Korosso, J. was

1988 TLR p143

MAKAME JJA, KISANGA JJA AND OMAR JJA

presumably acting under the Criminal Procedure Act. As Mr. Butambala pointed out,

if A that was so then Mr. Nyabiri referred the learned trial judge to the wrong

section, section 264. The relevant section would have been section 299, in which case

the learned judge did not fully comply with the provisions of the law under that

section. If the continued trial purported to be under the Code there was no enabling

section: Section B 196 of the Criminal Procedure Code of course only applied to

trials in the subordinate courts. This second ground is also weighty.

The third ground argued by Mr. Butambala was that, in any event, the evidence on

record could not have been relied on to arrive at the conclusion that the appellant

was of C sound mind when he allegedly killed the deceased. The trial court

apparently did not get a feed back to the order made by Mushi, J. that:

It is therefore ordered that the Accused be sent to Isanga Institute (sic) in

accordance with D section 168A of the Criminal Procedure Code .......

In the course of his judgment Korosso, J. remarked that "On the evidence, the

question of provocation or insanity cannot arise." In view of the background we think

it would E have been in the interest of justice for the trial court to equip itself with

the report from Isanga, which should have been available at the purported trial some

eight years after Mushi, J. had made his order.

We respectfully agree with both learned Counsel that the proceedings should be F

quashed. The appeal is thus allowed and the proceedings are accordingly quashed. We

order a new trial.

There is one other thing we desire to make a brief comment on. The learned trial

judge ordered that the deceased's body should be exhumed and given to the

deceased's G relatives because it is "their birth right to bury their dead." This

unsolicited order was made in August 1987, nearly ten years after the deceased's body

had been interred. We are not so sure that the deceased's relatives would be anxious

to see the mortal remains of their dear one after so many years. There might be

aesthetic inhibitions and for all we H know it may well be taboo for them to handle

what remains. They were not given a chance to decide. As these proceedings have

been quashed the said order naturally goes with them, if, that is, it has not yet been

carried out.

I Appeal allowed.

1988 TLR p144

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