20081125 TZHC Dodoma

j * b IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: RUTAKANGWA, J.A., KIMARO, J.A., And MBAROUK, J.A.) CRIMINAL APPEAL NO. 131 OF 2006 SALUM JOSEPH@ TITO SEHEWA BENDERA ...............................APPELLANTS PETER JOHN @ TOSHI J VERSUS THE REPUBLIC ................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dodoma) (Kaijage, 3.) datedth e l0thday ofDecember,2006 in Criminal Appeal No. 31 of 2002 JUDGMENT OF THE COURT 201h & 251h November, 2008 RUTAKANGWAI J.A.: On 3rd May, 200,1 at about 02.00 hours, a gang comprising about 10 people armed with iron bars and pangas invaded a students' hostel at Mirembe Hospital within the Municipality of Dodoma. The students were rudely awakened from their sleep and held at ransom for a period lasting for more than an hour. 2 0 The bandits entered each and every room, terrorising the students and feasting on their various foodstuffs. In the process, at different times, in different places and with different styles and tactics, the bandits succeeded in stealing some of the students' various properties. These students included:- Mwanahamisi Mganga, Elizabeth Mwanjeka, Asma Athumani, Nyemo Mapulugo, Grace Masika, Victoria Kamala, Modesta Kirunda, Husna Hashimu, Gladia Chiligati, 10.Paulina Mayao, Esther Mashaka, Devotha Mwavongo, 13.Christabella Alli, 14.Tekla John, and 15.Veronica Kanyamala. The properties stolen included cash money, foodstuffs, and clothes. After fulfilling their criminal mission, the bandits left the scene of the crime. They were, however, escorted by a selected few j 3 ladies up to the hills on the outskirts of the Municipality of Dodoma where they unsuccessfully attempted to ravish them. These captives were released and returned to Mirembe. A report of the robberies was made at Dodoma Central Police Station. From the evidence on record, at least fifteen (15) separate and distinct robberies were committed. Investigations mounted by the police lasted for about four months. A number of suspects were netted. The three appellants were among them. After completing their investigations, the police indicted only the appellants in the District Court of Dodoma at Dodoma. In the said trial District Court, the appellants faced one single robbery charge. Since the particulars of the charge are lengthy, we have found it unavoidable not to reproduce the same in full. It will suffice to say here that the particulars of the charge, laid under sections 285 and 286 of the Penal Code, alleged that the appellants stole from the above name victims their various stated properties on the material day and that "immediately before and after such stealing did use actual violence to the above named persons, to wit - 4 threatened to cut them with a panga and knives in order to obtain the said properties". The appellants denied that omnibus charge. The trial District Court, all the same, found them guilty as charged and convicted them. They were each sentenced to thirty (30) years imprisonment and twelve (12) strokes of the cane. Their appeal to the High Court against conviction and the sentences was dismissed. They are now before this Court still protesting their innocence. As in the two courts below, the appellants appeared before us, unrepresented. They filed a joint memorandum of appeal containing only two grounds of appeal in which they are essentially attacking the quality of the visual identification evidence upon which their conviction was only based. We shall, unfortunately, not discuss the merits or demerits of this appeal, for one single reason, which we shall elaborate on now. During the course of the hearing of the appeal, it became apparent that the single count which the appellants faced violated the mandatory provisions of section 133 of the Criminal Procedure Act, Cap 20 R.E. 2002 (the C.P.A. hereinafter), a fact which escaped the attention of the two counts below. The relevant provisions of S. 133 of the C.P.A. provide as follows:- 133-(1) Any offences may be charged together in the same charge or information if the offences charged are founded on the same facts or if they form or are part of a series of offences of the same or similar character. (2) Where more than one offence is charged in a charge or information, a description of each offence so charged shall be set out in a separate paragraph of the charge or information called a count." As the facts giving the background to this appeal have amply shown, fifteen separate and distinct offences of robbery were committed on different persons, at different times and places. Under the provisions of S. 133(1) of the C.P.A., since they were founded on the same facts, they would appropriately have been the subject of rel the same or one charge. However, the robbery committed on each individual person ought to have been a subject of a separate count as directed in section 133(2). This requirement assumes greater significance in cases of robbery under sections 285 and 286 of the Penal Code. This is because the offence of robbery by its very nature is the stealing of anything from any person accompanied by the use of actual violence or threat of it to that particular person in order to obtain or retain the thing stolen. It is a rule of law that in a charge of robbery the nature of the violence used on the victim, or the threat of it, must be specifically mentioned therein and eventually specifically proved by the prosecution. This Court in the case of MUSA MWAIKUNDA V. R, Criminal Appeal No. 174 of 2006 (unreported) succinctly emphasized this need thus: "The pr/n ci/e has always been that an accused person must know the nature of the case facing him. This can be achieved if a charge disdoses the essential elements of an offence." 7 If that is not done the accused will not have been put on a proper notice of the nature of the case he has to answer. He cannot, therefore, adequately prepare himself to put up an effective defence. In cases of multiple robberies committed separately to various persons, the nature of the force used on the person of each complainant must be stated in the charge. This legal requirement cannot be accomplished in an omnibus count like the one the appellants were facing. For this reason, it was held in the case of KAUTO ALLY V. R, [1985] T.L.R. 183 that the lumping of separate and distinct offences in a single count may render a charge bad for duplicity. In England in the case of R. V. TOMLIN [1954] 2 All E.R. 272, at page 274, the Court of Criminal Appeal remarked: "Where separate offences can be charged in separate counts, the court regards as improper an "omnibus" count in an indictment charging an aggregate of offences over a long period." MC Earlier, in the case of R.V. THOMPSON [1914] 2 K.B. 99, the same Court had held an indictment to be bad in that it had charged more than one offence in each count. But as it was found that the accused had not in fact been embarrassed or prejudiced in his defence, a substantial miscarriage of justice had not been occasioned. All the same, the Lord Chief Justice in that case aptly said, at page 104:- '7f we had thought that any embarrassment or prejudice had been caused to the appellant by the presentment of the indictment in this form, we should have felt bound to quash the conviction, whatever our views miiht be as to the merits of the case. It must not be thought that we are deciding that such objections should not be allowed to prevail either at the trial or in this Court. An indictment so framed might undoubtedly hamper the defence We have found these sentiments sound both in law and logic and we shall adopt them in resolving this issue as did the Supreme Court of Kenya in the case of JAPHET GEORGE AGUTHU V. R, [1962] E.A. 69 which was followed by Kisanga, J. (as he then was) in the case of R. V. SELEMANI SAIDI & ANOTHER, [1977] LRT 29. I -f 9 From the above authorities, it is clear that any appellate court would not hesitate to interfere and quash a conviction from an omnibus count if it is patently obvious that the accused was either embarrassed at his trial or prejudiced in anyway. In our view, while embarrassment ought strictly to be confined at the trial stage, prejudice leading to a miscarriage of justice cannot be confined within such a narrow compass. It must be given a wider and purposive interpretation. In this case, we are prepared to hold that, after going through the evidence, the appellants were not embarrassed by this irregularity. But it cannot be said with the same degree of certitude that they were not prejudiced by the same. We are going to demonstrate why we are of this settled view. Article 13(1) of the Constitution of the United Republic of Tanzania, 1977, henceforth the Constitution, guarantees the right of equality before the law. It is further categorically provided in sub- article (6) (a) that when the rights and duties of any person are . .-..' A 10 - being adjudicated on by a court that person must be guaranteed the right of a full or fair hearing. A right to a full hearing is guaranteed by a law, if we may be permitted to adopt the classic language of DANIEL WEBSTER and use it as ours, which: - Hears before it condemns, which proceeds upon inquiry and renders judgment after trial." Fortunately, we have such laws. The right to a fair or full hearing, in our settled mind, has a number of basic attributes. One such attribute is the right of confrontation. In its brevity, it means that an accused has a right to be confronted with the witnesses against him for purposes of cross- examination. In the administration of justice in a working democracy, it is not the interest of the state in a case to win a case by any means, but to see that the justice is done. That is why we have an independent judiciary and an appellate process. A cursory look at the record of proceedings in the trial District Court, reveals that the appellants, for undisclosed reasons, were • - -4 11 - denied this right. As already shown in this judgment, the appellants were charged with committing the offence of armed robbery against each of the students above mentioned. One would have expected that each one of these robbery victims would have testified at the trial of the appellants. As it turned out not all of them testified. Only six of them testified. Nine of them did not testify. Now this is where the element of prejudice crops in because the trial court could not extricate itself from the predicament it found itself in. Had separate counts been preferred, this predicament would not have arisen. The charges in respect of those who never testified would have been dismissed at the close of the prosecution case. Because nine out of the fifteen victims of the robberies did not testify, there was no proof at all of the theft of their properties mentioned in the charge. The nature of the violence used on them was not proved either. If there was no proof of theft, there was no proof of the offence of armed robbery in respect of these nine victims. The appellants were, therefore, entitled in law to an acquittal in respect of the accusations against them as far as those who never testified were concerned. But they were not acquitted but 12 convicted as charged. It was impossible at that stage to sever the charge. So, up to this day the appellants stand convicted of having robbed Mwanahamisi, Nyemo, Grace, Modesta, Gladia, Paulina, Esther, Christabella and Tekia of their properties in the early hours of 3rd May, 2001 at Mirembe Hospital Dodoma, although no evidence was ever led to prove this. On the strength of this conviction, these alleged victims can, for example, institute civil proceedings against the appellants for damages and relying on section 43A of the Evidence Act, Cap 6 R.E. 2002 be awarded damages. Hence the prejudice against them brought about by the omnibus count. When this irregularity, was brought to the attention of Mr. Prudence Rweyongeza, learned State Attorney, for the respondent Republic, after some initial hesitation, he conceded to the fatal effect of the same. He accordingly urged us to quash the conviction of the appellants, but in the interest of justice order a retrial. Both the first and second appellants urged us to quash and set aside their conviction and order their immediate release from prison. 13 On his part, the 3rd appellant left the matter entirety in the discretion of the court. Admittedly, the presentment of the omnibus count greatly prejudiced the appellants. As we have attempted to show, this was an irregularity which could not be cured under section 388 of the C.P.A. or Rule 108 of the Court of Appeal of Tanzania Rules, 1979 (the Rules). As the irregularity occasioned injustice to the appellants, • it was fatal, to say the least, and prejudicial to them. Their conviction cannot be allowed to stand. Acting, therefore, under s. 4(2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002, we hereby revise and quash the proceedings in and judgments of the two courts below. As a result, the conviction of the appellants for armed robbery based on the omnibus charge is quashed and set aside as well as the sentences imposed on them. Given the nature of the offences allegedly committed by the appellants, the interests of justice demand that we order a retrial, under rule 111(4) of the Rules and .4 14 we so order. We understand that the offences were committed in 2001. We accordingly direct the trial District Court to give this case top priority and dispose of it as expeditiously as possible. For the foregoing reason only we allow this appeal. DATED at DODOMA this 25th day of November, 2008. E. M. K. RUTAKANGWA JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL M. S. MBAROUK JUSTICE OF APPEAL I certify that this is a true copy of the original. 1,( \\• (S.S. MWANGESI)