20070719 TZCA Dar es Salaam 1

• ... • . I' ••, ·... JI,.• • .;, .,_ f ~ IN THE (;OURT.OF APPEAL OF TANZANIA · . AT DAR ES SALAAM (CORAM: LUBUVA. J.A .• MROSO, l.A., And RUTAKANGWA, l.A.) CRIMINAL APPEAL NO. 40 OF 2004 ABDU s/o SALEHE ................................................. APPELLANT· VERSUS THE REPUBLIC .•................................................. RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Dar es Salaam) {Bubeshi, J.) dated the 4 th day of October, 2002 in HC Criminal Appeal No. 86 of 2001 JUDGMENT OF THE COURT 3 & 19 July, 2007 LUBUVA, J.A.: In the District Court of Temeke, the appellant, Abdu s/o Salehe was charged with and convicted of the offence of robbery with violence contrary to sections 285 and 286 of the Penal Code. He was . _?_ent~nc~c:tto a terrn of 15 years imprisonment.-- ·a!"' _ - The evidence as found at the trial court was that Hadija Abdul (PWl), a resident of Morogoro, had come to Dar-es-Salaam to visit a 2 ,. sick relative admitted to Muhimbili Hospital. On 25.7.2000 at about 6 p.m. PW1 together with her friend Nuru Said (PW2), were on the way to Temeke from. Muhimbili Hospital. While at Temeke Bus Stand, suddenly PWl was attacked apparently by a group of thugs. PWl fell down and her golden chain among other items, was snatched and she saw the appellant passing it on to another person. PW1 unsuccessfully chased after the appellant when PW2 was crying for help shouting thief, thief. Civilians around the area responded, gave chase to the appellant and arrested him. Following from the appellant's admission before the civilians and Det. Cpl. Jeremiah (PW3) the investigating officer, of his involvement in the robbery of PW1's golden chain, the golden chain was recovered and it was identified by PWl Exh. Pl. . • . . -·----At-the trial, although ti.1e appellant" admitted being af·Temeke Bus Stand at about the time of the incident, he denied any involvement in the robbery. The trial magistrate found PW1, PW2 and PW3 truthful witnesses and as shown earlier convicted appellant 3 ,. as charged. Unsuccessfully, the appellant appealed to the High Court (Bubeshi, J.) where the learned judge took the view that the appeal had been filed without sufficient grounds of complaint. Consequently, the appeal was rejected and this appeal has been lodged from the decision of the High Court. In this appeal, M/s Kabisa, learned Principal State Attorney, appeared for the respondent Republic. The appellant who was unrepresented, filed four grounds of appeal. In the first ground, the complaint is that the appellant had not made any admission to the investigating officer and that there was no caution statement taken from him in which he admitted committing the offence. Second, that it was erroneous on the_ part of the trial court and the first appellate High Court to find as a fact that he had directed his wife to go to collect the golden chain. Third, that the appellant was not properly identifi~d because he was arrested amon~r·many people who had . --- ---- responded to PW2's cry for help. Fourth, it was also erroneous on the part of the trial court and the first appellate High Court to find 4 that the golden chain belonged to PW1 as no identifying marks had been shown. At the hearing of the appeal, the appellant being a lay person did not have anything useful to add to these grounds of appeal. However, he adamantly insisted that while in police custody he neither admitted his involvement in the crime nor did he direct any one to the so called wife to go to collect the golden chain. After all, he further claimed, he was not married. As to why he did not cross examine PW1, PW2 and PW3 at the trial when they implicated him in their evidence, the appellant said he did not do so because he is not familiar with the court procedure. On the other hand, M/s Kabisa, learned Principal State Attorney, for the respondent Republic, dealt with these grounds together. She submitted that even though there was no caution statement taken from the appellant, the evidence as a whole established beyond doubt that the appellant was involved in the robbery of the golden chain from the complainant (PW1). 5 The learned Principal State Attorney elaborated as follows: First, the witnesses PW1, PW2 and Jeremiah (PW3), the investigating officer, were credible witnesses. For instance, she said both PW1 and PW2 identified the appellant who snatched the golden chain from PWl and ran away after passing it to another person. It was not yet dark when the incident took place in which case it was easy for these· witnesses to see and identify the appellant, M/s Kabisa emphasized. Second, when the appellant was arrested by the civilians after the chase, PWl heard the appellant saying "mwambie dogo (sic) arudishe ile chain niliyomtupia". On the other hand, the Principal State Attorney said PW2 stated that she heard the appellant promising to have the stolen articles returned. Third, the evidence of PWl and PW2 was corroborated by PW3, the investigating officer. She further stated that in the course of interrogation, the appellant admitted stealing the golden chain from PW1 and that he would instruct his wife to go to collect it frbm Dago. 'The· chain was brought to the police station where it was identified by PW1. These witnesses being truthful, M/s Kabisa maintained that the conviction was well founded and that the appeal should be dismissed. 6 With regard to the order of the High Court rejecting the appeal, the learned Principal State Attorney drew the attention of the Court to the fact that the High Court did not follow the proper procedure in rejecting the appeal. She said the learned judge after hearing the · appeal should have considered the submissions on the basis of which a judgment was to be written. As it is, it would appear as if the appeal was summarily rejected. However, the learned Principal State Attorney insisted that despite the irregularity, there was sufficient evidence on which the appeal could be sustained. The simple and single issue is whether the offence against the appellant had been proved conclusively. Essentially, the case is based on the evidence of PW1 the complainant, PW2, who was at the time in the company of PWl and PW3, the investigating police officer. In resolving this issue we think it is instructive to examine closely the evidence on record. From our scrutiny of the evidence it is clear that PW1, the complainant, was supported by the evidence of 7 Nuru Juma (PW2) who was together with PW1 when the incident took place at Temeke market area. Both PW1 and PW2 saw and identified the appellant as the one who snatched the golden chain from PW1. It was not yet dark when the incident took place, so, we agree with M/s Kabisa, learned Principal State Attorney, that PW1 and PW2 were in a position to identify the appellant properly. After all it is to be observed that the appellant himself admitted in his defence at the trial that PW1 and PW2 were known to him. In that case it is our view ·that it was not difficult for PW1 and PW2 to identify the appellant as the one they saw snatching the golden chain from PW1 and thereafter pass it on to another person. In the circumstances, the trial court having found PW1 and PW2 credible witnesses, we are satisfied that the appellant was properly identified by PW1 and PW2 when PW1 was attacked and her .golden. chain .stolen.· The. fact mat··it-· is --possible thar Pwr-··was attacked by a group of street boys as the appellant alleges does not in our view make any difference. What is important is the fact that 8 _,. the appellant was seen and identified attacking PWl and in the process snatched the golden chain from her (PWl). Furthermore, the evidence of PW1 and PW2 is corroborated by the evidence of the police investigating officer, Det. Cpl. Jeremiah (PW3). To start with, when the appellant was arrested by the civilians PWl heard the appellant saying "mwambie Dogo arudishe ile chain niliyomtupia". This aspect of the evidence is to be linked with what transpired at the police station when the appellant was later interrogated by Det. Cpl. Jeremiah (PW3) on 26.1.2000, one day after the incident. According to PW3, the appellant admitted his involvement in the crime promising to instruct his wife to go to collect the golden chain from one Dago. On 27.1.2000, the chain was brought to the police station where PWl identified it. On this evidence, we agree with M/s Kabisa, learned -- Principal Sta.te -Attorney;- that the appellanLWas--sl.IffiCiently~linl<ea··-··- with the offence of stealing the golden chain from PW1 by use of violence. Otherwise, it is inexplicable that the appellant not only admitted his involvement in the commission of the offence but also ; ·- ... ·········-····-· ......... ··•-- .. -·········· ········-··········· ·---···- ......•....... ··-··•"-••· ....... ./ 9 the golden chain was retrieved following the appellant's promise to the civilians in the presence of PW1 and PW2 and later at the police station (PW3) to have it returned. In recapitulation, we are satisfied that the evidence of PW1 and PW2 who were found by the trial court as credible witnesses, which was corroborated by Det. Corporal Jeremiah, the investigating officer (PW3), was sufficient to prove the case against the appellant. In the event, having regard to the circumstances of the case, we are increasingly of the view that the conviction against the appellant was well founded. We find no merit in the appeal. Before concluding this judgment we wish to make brief comment on the way the High Court dealt with this matter on appeal. As correctly observed by M/s Kabisa, from·· the record •it is apparefit,-,-•~-----·--·--···--·--- -· that on 8.4.2002 the learned judge heard submissions by the State Attorney on behalf of the respondent Republic, as well as the appellant. The judgment was reserved to a date to be notified. r, • 10 However, for unexplained reasons, on 4.10.2002, the learned judge made an ·order to the effect that no sufficient ground of complaint had been shown, the appeal was rejected. With respect, we think it was not proper for the learned judge to reject the appeal as if it had been summarily rejected. It is common knowledge that under the provisions of section 364 (c) of the Criminal Procedure Act, 1985, (the Act) upon receipt of the petition of appeal against conviction and sentence and perusal of the record the High Court if satisfied that the appeal has been lodged without sufficient ground of complaint, may summarily reject the appeal. In such a situation, if at all, the appeal is summarily rejected before the appeal is heard. On the other hand, it is also elementary that once the appeal is not dismissed summarily it shall be heard as happened.in this case·. The powers of the High Court upon hearing the appeal are set out under section 366 of the Act. Depending on the circumstances of the case, the High Court in its judgment may either dismiss or allow the r, • 11 r, appeal and not reject the appeal summarily as the learned judge did in this case. It hardly needs to be overemphasized that courts are bound to follow the proper procedure laid down under section 364 ( 1) of the Act for summary rejection of appeals as distinct from appeals heard in terms of sections 365 and 366 of the Act. In this case, we think with respect, that the learned judge fell into the error of summary rejection of the appeal instead of writing a reasoned judgment. However, in the circumstances of the case, notwithstanding the irregularity, we are settled in our minds that hap the learned judge applied the proper procedure laid down under the Act, she would have come to the same end result, namely that the conviction was justified as urged by M/s Kabisa. In the event, for the foregoing reasons, the appeal is dismissed in its entirety. 12 DATED at DAR ES SALAAM this 11th day of July, 2007. D.Z. LUBUVA JUSTICE OF APPEAL J.A. MROSO JUSTICE OF APPEAL~~----~---------~---- - - - - - - - --------- E.M.K. RUTAKANGWA JUSTICE OF APPEAL I certify that this is a true copy of the original. ,. -. ·- .--.--- --- . · · - -- ... . ---- - '