20100818 TZHC Dar es Salaam

I - .. .;~, '~~:-~---. 1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO 37 OF 2009 (Originating from Kinondoni District Magistrate Criminal Case No. 1289/2008) SAMWEL THOMAS V. REPUBLIC Date of last Order : 12/7/2010 Date of Judgment : 18/8/2010 JUDGMENT Shangwa, J. The Appellant Samwel Thomas was charged in the court of the Resident Magistrate at Kivukoni with the 2 offence of Armed Robbery C/S 287 of the Penal Code as amended by Act No. 4 of 2004. He was found guilty of the offence charged and convicted. Upon being convicted, he was sentenced to 30 years imprisonment. However, he was not satisfied with both conviction and sentence. He decided to appeal to this court. In his Memorandum of appeal, he raised six grounds of appeal. At the time of hearing his appeal, he said that he had nothing to add to his six grounds of appeal. On the 1st , 2 nd and 3 rd grounds of appeal which are ., interrelated, the Appellant faults the trial Magistrate for believing in the evidence given by P.W.1 Judith Baraka and P.W. 2 Patrick Anthony who said that the Appellant is the one who robbed them without giving any description of how he looked like and without any corroboration of his identification by the said witnesses. 3 The learned State Attorney, Mr. Mwakanyamale submitted in reply that the Appellant's 1st , 2 nd and 3 rd grounds of appeal have no merit as P.W.1 and P.W.2 knew the Appellant earlier before the incident. P.W.1 and P.W.2 who are wife and husband respectively told the trial court that on 18/4/2008 at about 20.00 hours, they went to MRINGA Pub at Sinza Mori area to look for some food and that while they were inside the Pub, the Appellant together with some other persons entered the Pub and sat at a table near them. After eating food, they left the Pub. They said that when they left the Pub, the Appellant and three others followed them up, threatened them with a panga, beat them severely and robbed P.W.l's mobile phone and cash Tshs 1,200,000/= and robbed P.W.2's mobile phone. i l 4 For me, I agree with Mr. Mwakanyamale that the first, second and third grounds of appeal have no merit. I agree with him on these grounds for one reason above all that P.W.1 and P.W.2 had sufficient opportunity to see the Appellant for quite sometimes in the Pub when he went there with some other persons, and when he followed them with three other persons at the time when they left the pub for home and at the time of robbing their properties. Thus, P. W. 1 and P. W. 2 did recognize the Appellant very well during the incident. In my view, the evidence which was given by both witnesses proves beyond reasonable doubt that the Appellant did commit the offence with which he was charged namely Armed Robbery. As a matter of fact, the trial Magistrate did not need any evidence to corroborate the evidence of P. W. 1 and P. W. 2 before convicting the Appellant. Therefore, the 1st 2 nd and 3rd grounds of appeal fails on grounds of lack of merit. 5 As it was correctly pointed out by Mr. Mwakanyamale, the fourth ground of appeal is incomprehensible and I find it of no use to consider it. This ground reads as follows and I quote:- " That, your Lordship the learned trial Magistrate erred in law and fact by not using the current position of the law in relation to the admissibility of the testimony of a minor in robbery of case, the inconsistency of P. W. 1 and P. W.2 knowing the Appellant with which could not be justified with the arrest needed corroboration evidence." 6 In my view, the fourth ground of appeal fails on grounds of being incomprehensible. On the fifth ground of appeal, the Appellant faults the trial court for convicting him of the offence charged while the prosecution did not produce the boots which are alleged to have been left by the robbers at the scene of crime and did not produce the purchase receipts of mobile phones which are alleged to have been stolen by him from P.W.1 and P.W.2 during the robbery incident. I think that although the prosecution did not tender in evidence the boots which are alleged to have been left at the scene of crime by the robbers who include the Appellant and although the prosecution did not tender in evidence the purchase receipts of the mobile phones which t,1 7 are alleged to have been stolen from P.W.1 and P.W.2 during the robbery incident, the direct evidence which was given by the said witnesses was sufficient enough to base the Appellant's conviction. Therefore, the fifth ground of appeal fails also for lack of merit. On the sixth ground of appeal, the Appellant faults the trial court for disregarding his defence of alibi. Indeed, during his defence before the trial court, the Appellant said that between 15/4/2008 and 30/4/2008, he was in Nairobi, Kenya where he had gone to mourn the death of his relative. He contended therefore that on 18/4/2008 at 21.00 hours when the robbery incident is alleged by the prosecution to have taken place, he was not in Tanzania. I' 8 I wish also to agree with Mr. Mwakanyamale on the sixth ground of appeal that this ground has no merit as well. As it was correctly pointed out by him in his reply submissions on behalf of the Respondent, the Appellant did not give notice to the trial court and the prosecution before hearing of his case that he was going to raise a defence of alibi just as is required under S. 194 (4) of the Criminal Procedure Act Cap. 20 R.E. 2002. In this case, let alone the fact that the Appellant did not give notice of his defence of alibi as required under S. 194 (4) of the Act, he did not furnish the particulars of his alibi to the prosecution before closing its case as required under S. 194 (5) of the Act. I • 9 According to S. 194 (6) of the Criminal Procedure Act, if the accused raises a defence of alibi without having first furnished the prosecution with the particulars of the alibi, the court may in its discretion accord no weight of any kind to the defence of alibi. That is exactly what the trial court did in this case and it cannot be blamed. Thus, the sixth ground of appeal has no merit and it fails. With regard to the sentence of 30 years imprisonment which was imposed on the Appellant, I think it was well earned as per Section 287 A of the Penal Code which provides as follows and I quote: " S. 287 A Any person who steals anything, and at or immediately after the time of stealing is armed with any dangerous or offensive weapon ll i: 10 or instrument, or is in company of one or more persons and at or immediately before or immediately after the time of stealing uses or threatens to use violence to any person commits an offence termed " Armed Robbery" and on conviction is liable to imprisonment for a minimum term of thirty years with or without corporal punishment." In general, this appeal fails in its entirety and I dismiss it. ~ _ ~---~.......... ~ 0 uff.T o~ ....... C, A.Shangwa \ JUDGE --- 18/8/2010 ', G\~ .. .... . ; 11 Delivered in open court this .18 th day of August, 2010 1n the presence of the Appellant and Mr. Mwakanyamale for the Respondent. A.Shangwa JUDGE 18/8/2010 f