JOSEPH JUDGEMENT

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT (MUSOMA SUB REGISTRY AT MUSOMA) CRIMINAL APPEAL No. 86035 OF 2023 (Arising from the Resident Magistrate Court of Musoma at Musoma in Criminal Case No. 94 of2022) JOSEPH PAUL NYAMUHANGA...........................................APPELLANT Versus REPUBLIC.................................................................... RESPONDENT JUDGMENT 27.06.2024 & 27.06.2024 Mtulya, J.: On the evening hours of 30th July 2023, Ms. Joyce Robert @ Marwa (the victim) was invaded at her home residence of Sirorisimba within Butiama District in Mara Region, by three (3) bandits who were holding panga at their hands. The robbers were alleged to have grabbed and escaped with several items of the victim, including monies amounting Tanzanian Shillings 42,376,000/=, Sales Exercise Books, Mobile Phones, NIDA, NHIF, NMB and CRDB Identification Cards. The complaint was lodged before the police authorities in Butiama District and a Charge Sheet of armed robbery species was prepared and registered at the Resident Magistrate Court of Musoma at Musoma (the court) in Criminal Case No. 94 of 2022 (the case) on 20th October 2022. The Charge Sheet was registered at the court displaying two accused persons, namely: first, Mr. Joseph Paul i Nyamuhanga @ Wankuru @ Nsame Nyamuhanaga @ Babu (the appellant); and second, Mr. Mtunda Selemani Juma. The dual persons were arrested on different dates and brought to the court by the Republic (the respondent) on 20th October 2022 to reply the complaint of armed robbery contrary to section 287A of the Penal Code [Cap. 16 R.E. 2022] (the Penal Code). In order to establish its case, the prosecution had brought at the court in the case a total of six (6) witnesses, namely: Robert Marwa Mniko (PW1), Joyce Mtatiro Jeremia (PW2), Mtatiro Waisagara Mniko (PW3), Isack Joshua Mwita (PW4), Wambura Matiko (PW5), and police officer F.6665 D/Sgnt. Hamis (PW6). After registration of relevant materials in testimonies and exhibits during hearing of the case, the court on 24th August 2023 had found the appellant guilty of the offence charged whereas Mr. Mtunda Selemani Juma was not found guilty of the charges. The appellant was then sentenced to serve thirty (30) years imprisonment. This decision aggrieved the appellant hence approached this court and registered a total of seven (7) complaints against the decision of the court in the case. The protests were registered in Criminal Appeal No. 37739 of 2023 (the appeal). On 18th June 2024, the appeal was scheduled for hearing and the appellant had marshalled the legal services of Mr. Baraka Makowe to appear and argue the reasons of appeal. However, before the appeal hearing could take its course, Mr. Makowe raised up and registered a 2 point of law regarding the testimony of the victim. In his opinion, the appellant could not be convicted of the offence in absence of the victim's evidence. Mr. Makowe took this court to the charge sheet and page 15 of the proceedings of the case and argued that the name of the victim as displayed in the charge sheet, Ms. Joyce Robert @ Marwa is not reflected anywhere on the record and that means the victim did not appear or testify in the case. On the other hand, Ms. Beatrice Mgumba thinks that the victim appeared and testified in the case in the name of Ms. Joyce Mtatiro Jeremiah. In her opinion, Ms. Joyce Robert @ Marwa and Ms. Joyce Mtatiro Jeremia is one and the same person, save for semantics. In brief, the learned minds are asking two (2) questions, namely: first, whether Ms. Joyce Robert @ Marwa and Ms. Joyce Mtatiro Jeremia are one and the same person; and second, if not, what are the appropriate remedies. I have carefully perused the present record and arguments raised by the respective learned counsels of the parties. However, before I proceed further into several complaints registered by the appellant, I am moved to initially address the instant appeal by resolving the issue of presence of the victim during hearing of the case, which relates to the charge sheet upon which the appellant was tried and convicted. I have consulted the record and precedents regulating the subject of discrepancies in names of witness victims in precedents. 3 The record of the case shows that the victim, as per charge sheet is named Ms. Joyce Robert @ Marwa and proceedings displays Ms. Joyce Mtatiro Jeremia. It is this discrepancy of names which had locked horns of Ms. Mgumba and Mr. Makowe. It is unfortunate that the record is silent on the discrepancies to settle down the current dispute. In brief, it is not easy to tell whether Ms. Joyce Robert @ Marwa is the same person called Ms. Joyce Mtatiro Jeremia in absence of the record resolving the dispute. There is a bundle of precedents regulating discrepancies of names or decline of citing victims in charge sheets and records of cases (see: Hashimu Mohamed Kinanda v. Republic, Criminal Appeal No. 132 of 2023, Peter Marco @ John v. Republic, Criminal Appeal No. 258 of 2017, Sharifu Juma Ally v. Republic, Criminal Appeal No. 445 of 2015, Chala Sanjwala v. Republic, Criminal Appeal No. 97 of 2014, and Kashima Mnadi v. Republic, Criminal Appeal No. 78 of 2011). Reading the indicated precedents, courts have been producing different thinking and remedies. In the case Hashimu Mohamed Kinanda v. Republic (supra), this court thought that the name of the victim written in the charge sheet as Rajab Maulid and the name Rajab Mohamed displayed as victim (PW1) in the record is the same person. The reasoning of the court was that the variance is trivial and does not go to the root of the matter and cannot exonerate the appellant from the liability. 4 The Court of Appeal in the precedent of Peter Marco @ John v. Republic (supra), was of the view that failure of the charge sheet to disclose the person against whom the threat was directed is an essential ingredient of the offence of armed robbery under section 287A of the Penal Code. However, the Court had pointed out that the defect was not fatal and supplemented its decision by earlier precedent in Jamali Ally @ Salum v. Republic, Criminal Appeal No. 52 of 2017. The reasoning of the Court in the indicated precedents was based on three (3) matters, namely: first, the evidence of PW1 clearly shows that it was directed to PW1; second, the omission was innocuous and it did not cause any prejudice to the appellant's trial; and finally, the fault was curable under section 338 of the Criminal Procedure Act [Cap. 20 R.E. 2019] (the Criminal Procedure Act). On the other hand, the decisions of the Court in Chala Sanjwala v. Republic, Criminal Appeal No. 97 of 2014, Kashima Mnadi v. Republic, Criminal Appeal No. 78 of 2011, Isidori Patrice v. Republic, Criminal Appeal No 224 of 2007, show that a charge sheet which decline disclosure of a person on whom the use of weapon was directed is fatally defective. According to the Court, the particulars of the offence must not only contain the violence or threat but also the person on whom the actual violence or threat was directed. The reasoning of the Court is based on the fact that the particulars are 5 important in order to give accused a fair trial and to enable him to prepare his defence. In my considered opinion, the best test is whether there was a fair trial to the appellant and was able to prepare his defence. I am aware of the decision of this court in Hashimu Mohamed Kinanda v. Republic (supra), which thought that the name Rajab Maulid and Rajab Mohamed is the same person. However, the case had resolved theft allegations against the appellant founded in section 265 and 268 (1) of the Penal Code and the appellant was sentenced to serve five (5) years imprisonment. In the present case, it is an allegation of armed robbery founded in section 287A of the Penal Code and the appellant was sentenced to serve thirty (30) years imprisonment. Again, in the indicated precedent of Hashimu Mohamed Kinanda v. Republic (supra), the discrepancy was based on a single name of the victim's father either Maulid or Mohamed, which can easily be appreciated. In the current case, the variance of names of the victim moves further from second to third, as either Robert @ Marwa or Mtatiro Jeremia, which cannot be easily understood. In such circumstances, this court cannot say that there was a fair trial in the lower court to cherish the provision of the Criminal Procedure Act. I have perused the record, complaints produced by the 6 appellant on want of detention register and evidence produced by Ms. Joyce Mtatiro Jeremia (PW2), and persuaded by the precedent of the Court of Appeal in Sharifu Juma Ally v. Republic (supra), which had resolved that facts and circumstances in armed robbery cases, may determine an appropriate remedy to be deployed at an appeal stage. Finally, the Court remitted the case for retrial and had issued two important orders, namely: first, want of expedited retrial; and second, if the appellant is convicted, the term of sentence already served should be considered. I am aware of the established practice by the Court of Appeal of East Africa in the precedent of Fatehali Manji v. Republic [1966] E.A.343, which held that retrial should not be ordered where evidence is insufficient so that it can enable the prosecution to fill its gaps. However, in the present appeal, the nature, circumstances and interest of justice demand retrial. I have indicated earlier in the instant case, that the variance of names of the victim moves further from second to third, as either Robert @ Marwa or Mtatiro Jeremia, which cannot be easily understood. I also stated that the record of appeal shows appellant complains on evidence of detention register whereas the respondent wants for the evidence of Ms. Joyce Mtatiro Jeremia (PW2). The two (2) indicated issues can be easily resolved by cherishing the laws regulating criminal trials in lower courts 7 Having said, and considering the directives of the Court of Appeal in the precedent of Sharifu Juma Ally v. Republic (supra), I am moved to remit the appeal to the Resident Magistrate Court of Musoma at Musoma for retrial. The case to be heard and resolved expeditiously and if the appellant is convicted, the term of sentence already served should be considered. The appellant shall remain in custody until when called to reply the allegations against him. This judgment was delivered in Chambers under the Seal of this court in the presence of the appellant, Mr. Joseph Paul Nyamuhanga @ Wankuru @ Nsame Nyamuhanaga @ Babu, and his learned counsel, Mr. Baraka Makowe, and in the presence of Ms. Beatrice Mgumba and Mr. Felix Mshama, learned State Attorneys for the Republic. Judge 27.06.2024 8