20050505 TZCA Mbeya

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM LUBUVA, J.A., MUNUO, 1A., And NSEKELA, ).A.) CONSOLIDATED CRIMINAL APPEAL NOS 19 AND 18 OF 2000 DAUDI MAPUMBA ] JOEL SILOMBA ] ................................................ APPELLJ4NTS VERSUS THE REPUBLIC ............................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Moshi, 3.) dated the 30th day of June, 2000 in (DC) Criminal Appeal No 6 of 2000 JUDGMENT OF THE COURT NSEKELA, ).A.: The appellants, Daudi Mapumba and Joel Silomba together with others, were jointly charged in the District Court of Mbozi at Vwawa with the offence of armed robbery c/s 285 and 286 of the Penal Code as amended by Act No. 10 of 1998. This was in Criminal Case No. 132 of 1998 in which Daudi Mapumba was the first accused and Joel Silomba was the third accused. On the 16.11.99, the prosecution substituted the charge, the appellant Daudi Mapumba now was the second accused and Joel Silomba was the fifth accused. On the 2 26.11.99, the appellants were convicted by the District Court and sentenced to a prison term of thirty (30) years' imprisonment each. Aggrieved by this decision, they unsuccessfully appealed to the High Court in Criminal Appeal No. 6 of. 2000. StUI aggrieved by the decision of the High Court, the appellants have preferred their appeals before this Court. The appeal by Joel Silomba is Criminal Appeal No. 18 of 2000 and that of Daudi Mapumba is Criminal Appeal No. 19 of 2000. At the commencement of the hearing of the appeals, the Court, with the consent of the parties, ordered under rule 103 of the Court Rules, 1979 that hearing of the appeals be consolidated. We propose to commence with Criminal Appeal No. 19 of 2000 in which the appellant is Daudi Mapumba. Mr. Mwakolo, learned advocate for the appellant filed three grounds of appeal. The anchor of the appeal, in our view, is that the trial court did not take the appellant's plea. The learned advocate took us through the proceedings of the trial court from the 5.11.98 to the 8.6.99. The learned advocate complained that on various dates when the accused persons were brought before the District Court, the appellant was not present and his plea was not taken. On the 16.11.99, there was a 3 substitution of the charge and the appellant became the second accused person. It was the same old story, that is, on this date the appellant was absent, apparently we may add, he was at Tukuyu facing some other criminal charges. A preliminary hearing was conducted on the same date but the appellant was not signatory to the memorandum of agreed matters. 'Mr. Mwakolo added that the case against the appellant proceeded under section 226 (1) of the Criminal Procedure Act, 1985 allegedly because the appellant had jumped bail, which was incorrect. The learned advocate further submitted that from the 5.11.98 when the accused persons in Criminal Case No. 132 of 1998. first appeared in the District Court, up to the 16.11.99, the appellant had never entered appearance and worse still the District Court did not take his plea. At the conclusion of the trial, the appellant was convicted and sentenced. It was the contention of Mr. Mwakolo that the conviction and sentencing of the appellant was illegal. The proceedings before the District Court and the High Court on appeal were a nullity, he concluded. On his part, Mr. Boniface, learned State Attorney, did not resist the appeal. He was in entire 'agreement with the submissions of the learned advocate for the appellant. 4 With respect, we are in agreement with Mr. Mwakolo, learned advocate for the appellant, that the appellant's plea was not taken on the 5.11.98, the very first occasion the appellant and his co-accused persons appeared before the District Court, or.on any subsequent dates. Even on the 16.11.99, when a new charge was substituted, the record shows that the appellant was absent. This is not all! When the preliminary hearing was conducted in terms of section 192 of the Criminal Procedure Act, 1985, the appellant did not sign the memorandum of agreed matters, obviously because he was not before the Court. Section 228 of the Criminal Procedure Act, 1985 provides as follows - "228 (1) The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge. (2) If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words he uses and the magistrate shall convict him and pass sentence upon or make an order against him, unless there 5 shall appear to be sufficient cause to the contrary. (3) If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as h&einafter provided ---fl It is abundantly clear from the record that the appellant was not present when pleas were first taken on the 5.11.98 and subsequently on the 16.11.99 when a new charge was substituted. In the case of Naoche ole Mbilev. Republic (1993) TLR 253, this Court had occasion to explain the import of section 228 of the Criminal Procedure Act and stated thus at page 255 - "Our construction of these provisions of the law is that the requirement of arraignment of an accused person as embodied in those provisions is mandatory and non-compliance therewith renders the proceedings a nullity. The rationale for this view is not difficult to find; it is that the accused must know the offence with which he is charged and for which he is being tried. A person should not be put in jeopardy of a conviction when he is unaware of the source of the jeopardy itself. ' S 6 The necessary corollary that follows from this is that the accused must be physically present and the charge must be put to him in person. Otherwise the whole principle of arraignment and the vital purpose for which it is,intended are rendered meaningless." (see also: Tiuway Akonaay v. Republic (1987) TLR 92.) We are accordingly satisfied that since the appellant's plea was not taken either before and after the substitution of the charge, the subsequent trial of the appellant Daudi Mapumba was a nullity. In the result we allow the appeal, quash the conviction,, set aside the sentence imposed, and order that the appellant be released forthwith unless otherwise lawfully detained. We now turn to Criminal Appeal No. 18 of 2000. The appellant herein is Joel Silomba, who was the first appellant in the High Court. He appeared in person and unrepresented and the memorandum of appeal, which he adopted, contained six grounds of appeal. For the respondent Republic, Mr. Boniface, learned State Attorney, strongly resisted the appeal. He was of the view that the central issue in the appeal revolved around the identification of the 7 appellant by PW2, Rajabu Yusufu, the lorry driver who allegedly drove the appellant and fellow bandits to Itaka, in Mbozi District. The learned State Attorney submitted that it was the appellant who had hired the lorry to carry maize at about 5.00 p.m. The journey from Mbeya to Itaka started around 6.00 p.m. It was not dark as yet. The appellant sat in front with PW2 together with another passenger. Mr. Boniface submitted further that it was the appellant who directed PW2 to their ultimate destination in Mbozi District. Upon their arrival, the appellant paid to PW2 the remaining balance of Shs. 25,000/= for hiring the lorry. in view of all these facts, the learned State Attorney was of the view that the identification of the appellant was watertight. Mr. Boniface also submitted that PW2 should not be considered as an accomplice. He had simply been hired to go to Mbozi to carry bags of maize. He was under constant guard until he was abandoned by the bandits. He concluded by submitting that the courts below believed and acted upon the evidence of PW2 and this Court should do so. In reply, the appellant stated that PW2 was known to him beforehand and that he had fabricated evidence against him since he was indebted to him. (] With respect, we are in agreement with the learned State Attorney that the resolution of this appeal depends on the identification of the appellant by PW2. The learned judge on first appeal considered this issue and had this to say - "I have gone through the trial court's record with the greatest care. I shall first consider the evidence against the first and fourth appellants. I am satisfied that they were properly identified with the crimes. The identification evidence of PW2 was watertight. He had been with these two appellants for a long time right from when it was still broad daylight. He could not therefore have made an error in identifying the first and fourth appellants." Our concern here is with Joel Silomba who was the first appellant in the High Court. We are aware that where the evidence which implicates an accused is entirely that of identification, the evidence must be watertight before a conviction could be founded upon it, (see: R. v. Erio Sebwato (1960) [A 174.) From the above extract of the judgment of the learned judge on first appeal, there can be no doubt that the learned judge was aware of the fact that PW2 was the only identifying witness to the incident. He was also satisfied that he could safely act on the evidence to found the conviction of the appellant. We would like to add that the appellant himself stated that PW2 was not a stranger, to him, they had previously known each other to the extent of being debtor and creditor. Though the learned judge did not specifically refer to the case of Waziri Amani v. Republic (1980) TLR 250, the learned judge clearly discussed the principles enunciated therein. At the commencement of the journey from Mbeya to Itaka, Mbozi District, there was sufficient light; the appellant and PW2 sat in close proximity in the front seat of the lorry for all that distance. The appellant himself volunteered information that they had known each other beforehand. All these factors eliminated any possibilities of mistaken identity. Lastly, Mr. Boniface briefly submitted on the issue whether PW2 was an accomplice or not. He was of the view that he was not and invited the court to make a finding on the issue. With respect, we are reluctant to do so at this late hour. This issue was not raised in the District Court during the trial; it was not raised in the High Court on first appeal. The appellant did not prefer it as a ground of appeal e. 10 to this Court. Under the circumstances, it would invariably involve an evaluation of the evidence and then make the necessary finding. This, we cannot do now. In the result and for the reasons given above, we dismiss the appeal in its entirety. 5th day of May, 2005. DATED at MBEYA this Z. LUBUVA JUSTICE OF APPEAL r: \ ) -.-----.---. .' / 7 I \ \\ N. MUNUO ct JUSTICE OF APPEAL . '/ f/•-ø .j \ I t4 \ \ / 2 / -' 46, 4c-.jj/ H. R. NSEKELA JUSTICE OF APPEAL I certify that this is a true copy of the original. (S. A. N,URA) SENIOR LIE UTY REGISTRAR