20030508 TZCA Arusha

IN THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: RAMADHANIJ.A.; MROSO, J.A.; And NSEKELAI1A.) CRIMINAL APPEAL NO. 56 OF 1998 BETWEEN PETER EMMANUEL . .................APPELLANT AND REPUBLIC .............................. RESPONDENT (Appealagainst the ddiôn and order of the RM's Court of Tanzania at Arusha) (Kapaya, PRM (Ext.Juris.) dated the 11th August, 1997 in Criminal Appeal No.27 of 1997 RULIN.G RAMADHANI, ).A.: This appeal by Peter Emmanuel is beset with a number of legal issues and wehaVe to preface this ruling with a concise background to appreciate what is at stake. --i - --, ------ - - 7 / Three persons, including the appellant, were charged with robbery with violence c/s 285 and 286 of the Penal Code. There was a second count in the alternative to the first count for those other two persons who were watchmen of the premises where the robbery took place. The appellant was convicted of robbery with violence as charged while the other two persons were convicted of the offence of negligence to prevent an offence c/s 383 of the Penal Code. The learned R.M. said: The second collorary (sic) issue is whether the first and theseond accused's omission to assist the cashier amounted to common intention in the commission of the robbery. There is no proof for that. The learned R.M. did not say anything more than what we have quoted so, presumably, he meant to acquit them of the first count of robbery with violence. However, he categorically convicted them of the second count that was in the alternative, negligence to prevent an offence. 2 I -. - When it came to sentencing, however, the learned Resident Magistrate got really muddled up. This is what he recorded in the original file: C SENTENCE:- I have considered the submission in the allocutus (sic) and have come to a conclusion C that the 1st count: The first accused serve 8 years nI nd 2 count: 2 and second accused 2 years Now, the first accused person was one of the watchmen and was not convicted of the first count, robbery with violence. But also it would appear that the third accused person, who is now the appellant, was not sentenced at alL9robably that was /apsus ca/aml 2r,d and third accused 2 years". The _ C and the R.M. meant that registry took it to be so and issued a commitment warrant for the third accused person (the appellant) forimprisonment to a term of two years. The record of appeal also has it 2nd count: 2nd and 3rd accused 2 years". But then, the third accused person (the appellant) was neither charged nor convicted of the second count. 3 S - - S Let us digress a bit, it would appear the record of appeal before Mr. KAPAYA PRM (Ext. Juris.) was the same as ours. The learned PRM spotted out the mix up and made some comments in his judgment. However, for reasons which will become obvious soon, I we do not want to go into that judgment. ( H To resume the matter before us, we feel obliged to comment that the Republic did not take any step to clear up this muddle. The Republic did not even appeal seeking to have the appellant properly punished according to law for the offence of robbery with violence of which he was convicted! On the contrary, all the three convicts L appealed against convictions and sentences. Thus there were three separate appeals: High Court Criminal Appeals Nos. 49/97, 50/97 and 51/97. As the appeals were to be determined by Mr. KAPAYA, PRM (Ext. Juris.) they were renumbered: Criminal Appeal No. 27/97, for the first accused person, No. 28/97 for the current appellant and No. 29/97 for the second accused person. 4 I Mrs. Lyimo, Principal State Attorney, pointed out even before Ne started to hears the appellant that there was an irregularity on point of law. We treated that to be a preliminary objection. She said that Mr. KAPAYA, PRM, heard only one appeal, No. 27/97 of the first accused person. The learned Principal State Attorney submitted that it is in the judgment of Mr. KAPAYA, PRM, that the three appeals have been consolidated. But the other two appeals, that is, No. 28/97 for the appellant and No. 29/97 for the second accused person, were not before Mr. KAPAYA, PRM. The record of appeal bears out Mrs. Lyimo. The fact of consolidation just appears in the judgment. So, Mrs. Lyimo said that t since:the.appellant's appeal in the lower court was not heard, this 0 appeal is premature. We agree with her entirely. She suggested that we order that - the appeal thatwas filed in the High Court be heard first in that court. That again is correct. But what happens to the purported order of the lower court to enhance the punishment from two years to thirty? Mrs. Lyimo said that that taxed her mind 5 I S and that she was leaving it to us. It is clear to us that that purported order must be quashed and set aside and we hereby do so The question now is: what should follow after quashing and setting aside the imprisonment term of thirty years? Obviously, the cC sentence of the trial court is revived. But what was that sentence? ç.0 As already seen there was in fact no sentence passed on the appellant. However, the Prisons Authorities are not aware of that and they only acted according to the Committal Warrant that the appellant was to be imprisoned for a term of two years with effect from 23d July, 1997. That period undoubtedly, has long expired by now. The Prisons Authorities are still having the appellant in custody U because of the order of Mr. KAPAYA, PRM, which we have now: quashed and set aside. We order the High Court to hear the appeal pending before it according to law. The appellant should be released from prison immediately unless his continued incarceration is legal. It is so ordered. , 9tASHA this 8th day of May, 2003. A.S.L. RAMADHANI /JUSTICE OF APPEAL J.A. MROSO JUSTICE OFAPPEAL H.R. NSEKELA JUSTICE O'FAPPEAL I certify that this is a true copy of the original. (F.L.K. WAMBALI DEPUTY REGISTRAR 7