Dar es Salaam: Court rejects appeal on Zombe's acquittal

Written by FAUSTINE KAPAMA.

THE Court of Appeal on Wednesday rejected an appeal lodged by the Director of Public Prosecutions (DPP) challenging the acquittal of eight former police officers for murder of four mineral dealers and a taxi driver, on legal technicalities.

Justices Edward Rutakangwa, Mbarouk Mbarouk and Bathuel Mmila ruled that the notice of appeal filed to initiate the appeal in question was "incurably defective" for having stated that the decision sought to be challenged was given by Court of Appeal Judge Salum Massati.

"This purported incompetent appeal is accordingly struck out. The appellant (DPP) can still access the court in pursuit of his right subject to the law of limitation," the justices said in their ruling delivered on their behalf by Deputy Registrar, Ms Ester Mkwizu.

Giving his reactions on the ruling, the DPP, Dr Eliezer Feleshi, told the 'Daily News' that they would comply with the directive of the Court and re-file the appeal to ensure the ends of justice are reached.

In their ruling, the justices said that they were all sure that the trial judge did not subsequently try and decide the case in his capacity as a Justice of Appeal, as the notice of appeal erroneously shows.

During hearing of the appeal on April 22, this year, the trial attorneys had requested the judges of the appeal court to allow them to make some amendments, a request which was vehemently opposed by advocates for the police officers.

"We have found ourselves constrained to hold that as long as the notice of appeal on record is purporting to institute an appeal against a non-existing judgment is incurably defective and cannot by stretch of imagination, be amended," the justices ruled.

They held, therefore, that there was no appeal before the court against decision of Justice Massati, who heard the case at the High Court when he was Principal Judge and thereafter being appointed Court of Appeal Justice.

"It goes without saying, therefore, that a Justice of Appeal who finds himself sitting in the High Court to complete his unfinished judicial business, sits there not as a Justice of Appeal, but as a judge of the High Court .. that is pure and simple," the justices said.

Therefore, they observed, the trial judge acquitted Abdallah Zombe and his colleagues in his capacity as Judge of the High Court and it was accordingly a grave error in law for the DPP to lodge in the Court a notice of appeal against the judgment of Massati, the Justice of Appeal.

"Such a judgment we firmly believe does not exist and accordingly a notice of appeal in respect of it is incurably defective. The DPP ought to have lodged a notice of appeal indicating clearly that he was instituting an appeal against a judgment of Massati," they explained.

The justices concluded, "So far, there is no such notice of appeal before us. That is why the notice of appeal and the memorandum are at variance. Had this error occurred on the memorandum of appeal we would have not hesitated to allow an amendment of the same."

Zombe and ex-police officers were charged with four counts of murder of three mineral businessmen - Sabinus Chigumbi and his relatives Ephrahim Chigumbi and Mathias Lunkombe from Mahenge in Morogoro Region and Juma Ndugu, a taxi driver at Manzese area in the city.

The four people were allegedly killed by police on January 14, 2006, at Pande Forest, in Kinondoni District in the city. Justice Massati set free all the accused persons on September 17, 2009, after the prosecution failed to prove the charges against them. 

Other police officers charged alongside Zombe were Senior Superintendent of Police Christopher Bageni, Assistant Superintendent of Police Ahmed Makelle and Constable Jane Andrew.

The rest are Constable Noel Leonard, Constable Emmanuel Mabula, Corporal Felix Sedrick, Corporal Nyangerela Moris, Constable Michael Shonza, Corporal Abeneth Salo, Corporal Rajabu Bakari and Corporal Festus Gwabisabi.

Source: Daily News (09/05/2013): http://www.dailynews.co.tz/index.php/local-news/17226-court-rejects-appeal-on-zombe-s-acquittal