athman mgawe vs republic 2007 tzhc 100 13 july 2007

IN THE RESIDENT MAGISTRATE’S COURT WITH EXTENDED JURISDICTION (SUMBAWANGA REGISTRY)' DC CRIMINAL APPEAL NO. 10 OF 2007 (From Original Criminal Case No.363 o f 1999 Mpanda D istrict Court) ATHMAN M G A W E .....................................................APPELLANT VERSUS REPUBLIC................................................................ RESPONDENT JUDGMENT 28,h June & 13th July 2007 . DYANSOBERA. PRM (E.J.) The appellant Athman Mgawe was charged along with Filbert Nsulangi before the District Court of Mpanda District with two counts of conspiracy to commit an offence c/s 384 and armed robbery c/ss 285 & 286 of the Penal Code, Cap. 16. Both the appellant and Filbert Nsulangi were sentenced to 30 years prison term and twelve strokes each. Filbert Nsulangi was convicted and sentenced in absentia, as he jumped bail even before the prosecution had closed its case. The appellant was aggrieved by the trial court’s decision hence this appeal. The evidence at the trial was, briefly, to the following effect. Paul Joachim (P W 1) is a resident of Magamba and owns a shop. On 23.12.1999 at about 02:00 hours he was at home asleep. Then some people knocked at the door. They told him that they were in need o f medicine; either septrine or panadol and one o f them identified himself as Wembe butu kibokoya wachawi M agam ba.Pw 1 went to the sitting room and lit a hurricane lamp. Before he had opened the door for them Pwl heard the door being broken by an axe (Exh.P4) and the door fell. Pwl screamed for help but nobody appeared in response. The thugs rushed into the shop. They shot in the shop and in the air. One o f them asked the appellant to surrender the money. When the appellant replied that he had none he was hit on the face by an object he could not identify. He fell down and lost five teeth. The bandits collected various shop goods and made away with them. P w l, according to him, managed to identify the appellant who was armed with an axe and was clad in black coat and Filbert Nsulangi who was handling a gun and was in blackshirt, The rest two were strange to him but he could recall that one had a club while his fellow had a matchet. When the neighbours converged Pwl told them that he managed to identify only the appellant and Filbert Nsulangi to have been his assailants. Pwl was taken to the police station, given PF3 (Exh.PIO) and sent to the hospital where he was admitted and stayed there for four days. When the police got the wind, E 499 D/C Ramadan (PW2) and E 8800 D/Cpl Mkingira (PW3) investigated the case, arrested the culprits that is Yona Mkude, Amri Jackson, Filbert Nsulangi and the appellant and impounded the stolen items and tendered them in court as exhibits. PW1 recorded the statements of the appellant (Exh.Pl 1), Jonah John Mkude (Exh.P12) and Filbert Nsulangi (E xh.P l3). While at the hospital four people were taken to him for identification purposes and PW1 identified them and, according to him, he knew well both the appellant and Filbert Nsulangi as the latter used to going to PW1 ’s shop to sell maize to him and the former was frequenting to his shop to buy some cigarettes and other small items. The appellant in his defense protested his innocence. The trial Court was satisfied that the case against the appellant and his fellow was proved beyond reasonable doubt. The appellant, in his six grounds memorandum o f appeal is challenging this finding. The appellant’s complaints are mainly that the identification was not water tight as the offence is alleged to have happened at night, that the admitted statements and which were used to convici the appellant were illegally admitted in court and the admission exercise did not meet the test laid down under section 34 B (1) & (2) of the Tanzania Evidence Act, 1967. The appellant prosecuted his appeal on his own while the respondent Republic was represented by Mr. Mkizungo, learned State attorney. I have considered the lower court’s record, the memorandum of appeal and the submissions from both sides. As far as the first ground of appeal is concerned, I think the complaint in that ground is devoid o f merit. First, the evidence o f PW2 is clear that he well knew the appellant and his fellow even prior to the incident. PW2 even explained that the appellant used to frequenting to his (PW 2’s) shop to buy cigarettes and other small items. Second, at the crime scene there was a hurricane lamp that emitted light during the time of incident and which enabled PW2 identify and recognize his assailants including the appellant himself .The PW2’s description of how the appellant wras clad in and which weapon he had in that night does indicate that there was no mistaken identity. Third, the drama lasted for sometime, the bandits were able to speak -fo r instance, they asked for some medicine and one o f them even attempted to introduce himself as Wembe butu kiboko ya wachawi and another demanded some money from PW2.PW2 was also confronted and hit on his face, he therefore had ample opportunity of observing the bandits. Forth, when arrested by PW land PW3 the appellant was found with the stolen items PW2 identified to be his. These items were tendered in court and admitted as Exhibits P2 and P3. The appellant did not give satisfactory explanation o f how he came by those items he was found with and which were identified by PW2 to belong to him. Fifth, there was no suggestion leave alone indication that PW2 had any other interest to serve when testifying other than vindicating the law. It is for those reasons that I find that the identication was watertight. Be that as it may, the issue is whether the trial against the appellant, which culminated into his incarceration, was properly conducted. That brings us to the appellant’s complaints in his third ground o f appeal which is couched in the following words:- 1. (Not relevant) 2. (Not relevant) 3. That the learned trial grossly erred in law and in fact when he accepted the statements of the witnesses and used the said statement to convict the appellants while knowing Ex. (statements) was (sic) accepted in court illegally, for example a. Prosecution side failed to tell the court the concrete reasons as to why the said witnesses w'ere not appeared (sic) in court b. Also the prosecution case did not comply with the mandatory provision of section 34 B (1) and (2) of the Evidence Act 1967. As to paragraph (a) of the third ground of appeal, Mr. Mkizungo, learned state attorney, submitted that the proceedings under p.21 do not show that the mandatory requirements o f section 34 B (4)of the Evidence Act, 1967 were complied with. I think the appellant and the Republic are right on that point. Section 34 A of the said Act provide as follows: - “34 B (4) So much o f any statement is admitted in evidence by virtue o f this section shall, unless the court directs otherwise, be read aloud at the hearing and where the court so directs an account shall be given orally so much of any statement as is not read aloud.” The trial court’s record is clear that after exhibits P 11, P 12 and P 13 were admitted in court they were not read allowed in court and the court did not direct otherwise. That was in clear contravention of the mandatory provisions o f section 34 B (4) of the Evidence Act, 1967. Besides, as pointed out by the learned state attorney, the appellant was sentenced to that custodial sentence o f thirty years without having been convicted. On this, section 235 (1) of the Criminal Procedure Act, Cap. 20 R.E. 2002 is clear that: - “ The court, having heard both the complainant and the accused person and their witnesses and evidence, shall convict the accused and pass sentence upon or make an order against him according to law or shall acquit or shall dismiss the charge under section 38 o f the Penal Code. ” As rightly pointed out by the learned state attorney, the conviction must precede the sentence. Indeed that is what was held in the case o f Ramadhan Masha v. R:_[\985) T.L.R. P. 172 that: In criminal trial where it is decided that the accused person is guilty the basic elements o f the decision o f the court are a conviction and sentence with the form er being a prerequisite o f the latter. The learned state attorney argued that, as there was no conviction, the defect was incurable under section 388 of the said Act. With due respect I agree. The record o f the District Court clearly shows that there was no conviction. That was an incurable defect. In the case of George Mhando vs. R (1983) T.L.R. 113 the High Court held: - " Failure to complete the judgment is the same as failure to write a judgment because in both instances the points for determination and reasons for decision are not known; it is a failure o f justice to pronounce a sentence without writing a judgment and without recording a conviction.” 1 note that the appellant and his fellow were, in the first count, charged with conspiracy to commit an offence contrary to section 384 of the Penal Code, Cap 16 R.E. 2002.The record of the trial court is clear that there was neither discussion nor finding made thereon. That was wrong. However, the record is loud that there was no evidence led to establish leave alone to prove that offence. In consideration of what I have stated above and since the Republic does not support conviction, I allow the appeal and declare all the proceedings of the lower court a nullity and set the sentence aside. I order that unless the appellant is lawfully held for othei should be released forthwith from prison. W.P a P.R.M. (E.J.) 13.07.2007 Court: Judgment has been delivered today in open court in the presence of the appellant and Messrs Mwangamila and Mkizungo, learned state 3 t t0 1 " n , a ' ,C iV\r* D a r M i K l i /^