20110926 TZCA Mwanza3

IN THE COURT OF APPEAL OF TANZANIA 1 I ATMWANZA I CRIMINAL APPEAL NO~. 34, 35, 36, 6r OF 2009 (CORAM: RUTAKANGWA, J.A., KIMARO, J.A., And ORIYO, J.A.) } ' sr SAMWEL MWITA ........................................................ 1 APPELLANT . I . ND BETSON HAMISI ..............................,.......................... 2 APPELLANT l.. ALFRED RAPHAEL@ KIDOLE ........ J....................... 3RD APPELLANT l. CHARLES ANDREA @BUDODO ........ J....................... 4TH APPELLANT VERSUS 1 l · THE REPUBLIC .................•.............. J........................... RESPONDENT (Appeal from the judgment ~f the High Coirt of Tanzania • I I at Bukoba) I r (Lyimo, J.) · II th dated the 6 day of January, 2 09 I in I Criminal Appeal No. 49 of 2005 ' I ....... J........ . ! JUDGMENT ·oF THE COURT 23 & 28 September, 2011 KIMARO, J.A.: In the District Court of Bukoba, the appellants were jointly charged with ! 1 I • two others who were acquitted, with three I offences as follows; armed robbery. r . contrary to sections 285 and 286 of the' Penal Code and two offences under the Arms and Ammunitions Act, No.2 of 19Jl of being in pdssession of firearms and . ~ , J l i ammunitions respectively, contrary to sections 4(1) and 34(1) and (2). In the offence of armed robbery the appellants were alleged to have stolen at gun point an amount of T shillings 90,000/= from Fredrick Prosper @Kwazo PWl. The gun alleged to have been used in the commission of the offence of armed robbery was an SMG with serial No UA 05651997 which had rounds of ammunition and it is the one which formed the subject matter of the other two offences of possession of firearms and ammunitions. In the trial court the 1st , 3rd and 4th appellants were convicted as charged and sentenced to thirty years imprisonment for the offence of armed robbery and thirty years imprisonment or a fine of shillings 2,500,000/= for the other two offences. I As for the second appellant he was acquitted of the offences he was charged with but he was found guilty and convicted of the offence of being an accessory after the fact to the offences the others were convicted with, for aiding the 4th appellant to escape from criminal liability, contrary to section 388 of the Penal Code. He was sentenced to a fine of T, shillings 2,500,000/= or serve a term of four years imprisonment in default. ; Aggrieved by the convictions and the sentences, the appellants lodged an 1 appeal in the High Court. The High Court upheld the conviction and sentence for the offence of armed robbery but varied the sentence imposed on the 2 offences of unlawful possession of firearms and ammunition to fifteen years . imprisonment or fine of T. shillings 2,500,000/= in 6efault. As for the 4th appellant he was found guilty as charged and sentenced like the other appellants. Still aggrieved the appellants have filed this appeal. The appellants have filed different memoranda of appeal but a combination if thei.r grounds of appeal shows that they are basically complaining that the evidence that was used to ' i convict them was not sufficient. They challenged the admission of their caution statements and the extra judicial statement made by the 4th appellant that there was no finding made on their voluntariness. As regards the offences falling I I under the Arms and Ammunitions Act, the appellants contend that the District Court had no jurisdiction to try them because ther,e '1-'as no consent from the DPP and a certificate for the transfer of the case to be tried by the District Court. Before us the appellants appeared in person. The respondent /Republic was represented by Mr. Pius Hilla, Learned State Attorney. i I ' lr Before going to the grounds of appeal, let us look at the circumstances under which the offences were committed. On the of November, 2003 at about 9.45 p.m. Fredrick Prosper, PW1 was in his kio~k removing the items he 3 had so as to take them to his house for safe custody .. He heard noises coming · from his cattle shed. l I He went there to see what was wrong. . While he was 1 I i ' there with his torch on, he was order.ed by bandits t6 switch it off and kneel I l I, down. He saw one of the bandits with~ gun and he courageously struggled with \ I I , him and managed to take the gun from him and started usin·g the gun to beat I I I anyone who approached him. Unfortynately for him, ;he did not know how to I fire it, and as the bandits became awar~ of this fact, th~y went back to him with l pangas. He ran to the banana trees s~outing for help,: His brother, Salvatory, I PW2 came to his rescue with a panga! and in the struggle with the bandits he ' ' ;, I' '. managed to completely cut off the left palm of one of.the bandits. The bandit ' ' i shouted for help but none of the band~ts went back to· assist him. They all left ' leaving the gun and the chopped off left palm of the bandit at the scene of crime. Both PWl and PW2 were not able to identify any of the bandits. In the I , ' I 1 process of the struggle PWl lost his T shillings 90,000/ . I Later neighbours visited the scene of crime and assisted in reporting the ' I I incident to the police station. The itetns left at the scene of crime were also iI I' taken to the police station. At the p;olice station the! gun was found with six roun ds of ammurn·t·10n. Th e gun anfd magazine . were I adm1·tted .m cou rt as exhibits Pl, the left palm of the bandit lxhibit P2 and thl PF3 showing the extent I I of injuries suffered by PWl as exhibit P:3. I 4 I. J At the time No. C 9725 D/Cpl Nyafuweri PW3 visited the scene of crime,· ! I the complainant PWl informed this witness , that one of the I bandits had his left 1 palm chopped off. In making a follow up, he was infdrmed that one bandit • I I I with a missing left palm was admitted at Kasulu hospital. This happened to be ! I the 4th appellant, who allegedly admitted being involved ih the robbery that took I I place in the residence of PWl. The 4th appellant was ret~rned to Bukoba with a 'I I! PF3 bearing the name of Mathayo Buchumi @ Charles /Andrea. As the fourth I appellant was interrogated on his involvJment in the co~mission of the offence, I I he admitted being among the bandits Who robbed PWl ·and he also mentioned the 2nd appellant (Betson), David Lambert who was acqaitted, I Samwel Mwita @ Cleophace (1st appellant) and Alfreid Raphael @ Kidole /(3rd appellant) as being among the bandits who were with him during the commi~sion of the offence. He . ! I also said the group of the bandits we,re more but he; could not mention the I names of the others. 1 I I Apart from making a cautioned s~tement before t~e police, both at Kasulu : I and Bukoba, the 1st appellant also made an extra juditjial statement before the I I . Justice of Peace at Bukoba, admitting the commission of the offence and explaining the role played by each of t~e bandits. At Blkoba Hospital where the 4th appellant was admitted, his photog~aphs were take~ showing that he had no i I left palm. These were admitted in ·court as exhibit P9. The firearm and 'I I 5 f' I ammunitions were also taken for examination by an expert in the Investigation I Bureau and were admitted in evidence as exhibits PG and P7 while the report I which gave the details of the firearm and ammunitions was admitted as exhibit I nd rd PB. PW3 took the cautioned statements of the 2 , 1st, and 3 I appellants. During the hearing, the appellants repudiated the statem'ents claiming that they were not made voluntarily. The 1st, 2nd and 3rd appellants also said that all I cautioned statements were recorded by one witness •PW3. Despite the objection, the extra judicial statement of the 4th app~llant was admitted as exhibit Pl0 while the cautioned statement of the 1st appellant was admitted as exhibit Pl 1 and that of the 3rd appellant as exhibit P12. 1 In their defence, apart from the 1st appellant who raised the defence of alibi that he was not in Bukoba when the offence was committed, the rest of the appellants denied the commission of the offence. In convicting the appellants, the trial magistr~te said the cautioned statements made by 1st, 2nd , and 3rd appellants were hot reliable evidence for their conviction because they did not comply with section 58 of the Criminal I Procedure Act, [CAP 20 R, E. 2002]. The sole evidence the trial magistrate I relied upon to convict the appellants was the extra judicial statement of the 4th 6 appellant which the trial magistrate said he believed it ,because he knew the ; hand writing of the Justice of Peace who recorded the statement. I The learned judge on first appeal faulted the trial magistrate for not relying I on the evidence of the cautioned statements of the 1st' ?nd and 3rd appellants. I In discounting the evidence of the cautioned statements, the trial magistrate said I as they were recorded in question and answer form, they could not be relied i upon for the conviction of the appellants. Citing the case Ramadhani Salum Vs The Republic Criminal Appeal No. 5 of 2004, (unreported), the learned judge said a statement recorded in question and answer form as provided for ' under section 57 of CPA is as much admissible in evid~nce as that one made I wholly uninterrupted under section 58 of the same Act., The learned judge on I first appeal also made the variations in the conviction ,of the 2 nd appellant as I already indicated. I During the hearing of the appeal, the appellants did not elaborate on their I grounds of appeal. They felt comfortable to hear the response of the respondent I /Republic before giving an elaboration of their grounds of appeal. I On his part, the learned State Attorney who represented the respondent I /Republic supported the appeal. Commenting on the combination of the charges I of armed robbery under the Penal Code and possession of ammunitions under 7 • • the Arms and Ammunition Act, the appellants were charged with, the learned I State Attorney said it was unlawful to combine the offences of possession of firearm and ammunition and the armed robbery. He said the offences of possession of firearm and ammunition were, during their ·commission, economic offences, in which the District Court of Bukoba did not have automatic jurisdiction to try them. He said the offences were scheduled offences under the Economic and Organised Crimes Control Act, [CAP 2oq R.E.2002]. Citing the case of Rhobi Marwa Mgare & 2 Others V R Criminal Appeal No. 192 of 2005 (unreported) to augment his submission, the learned State Attorney said the District Court would have jurisdiction to try the offences· if the Director of Public Prosecutions had exercised his discretion under sections 26 (1) and 12(3) respectively, of the Act, and gave his consent, and at the same time issued a I transfer certificate to have the charges tried by the ~'istrict · Court of Bukoba. Since the Director of Public Prosecutions issued none of the two documents, ' contended the learned State Attorney, the District Court of Bukoba, had no jurisdiction to try the offences. The trial of the offences by the District Court of Bukoba was therefore a nullity. On the offence of armed robbery, the learned State Attorney said since the appellants objected to the admission of the extra judicial statement and the cautioned statements, the trial magistrate had the duty of making an inquiry to I 8 I I I I I I ascertain the voluntariness of the same. This he did not ~o and without giving I i any reasons he relied on the extra judicial statement a~ the sole evidence to i i base the conviction of the appellants. He said that occasioned failure of justice I on the appellants. He supported his views by the case of ~mmanuel Joseph @ I i Gigi Marwa Mwita V R Criminal Appeal No. 57 of 2902 (unreported). He prayed that the appeal be allowed. The learned State Attorney after supporting the :appellants' appeal the I I _appellants did not see any need for saying anythinQ in reply, apart from reiterating the prayer the leaned State Attorney made, that their appeal should be allowed. I I On our part we think the case is straight forward and we need not take I much of our time. The offences were committed 14th: November, 2003. The I cases of Peter Marwa Makansi V R Criminal A_ppeal No.327 of 2007 I (unreported) and Rhobi Marwa Mga~e V R Criminal IAppeal No. 192 of 2005 I are among the authorities of this Court in which the Court held that the offence I of unlawful possession of firearms/ ammunition, is not ;a constituent part of the offence of robbery. It is a distinct offence, triable under the Economic and i I Organized Crimes Control Act. The offences were removed from the Economic ' i and Organised Crimes Control Act only recently by Act No. 2 of 2010. 9 ! i I I I I ! Under the circumstances, it was wrqng for the pros~cution to combine the ; I ,I I offences the District Court had no jurisd}ction to try with the ones which the 1 court had jurisdiction to try. The offences had to 8e charged as distinct I1 , I 1 offences in separate cases. It was wrong; for the offences/to be combined in one charge sheet and in the same case. In ~his respect we 1gree I with the learned ! I State Attorney that at the time the appellants were charged in the District Court , I ) I of Bukoba, that court had no jurisdicti.on to try the offences, as neither the i I consent of the Director of Public Prosecution given under section 26(1) of the J Economic and Organised Act, nor a transfer issued und,er section 12(3) of the I I II 1 same Act. See also the case of Peter Daimon Mwa makuge V R Criminal ·I I . I Appeal No.174 of 2009 (unreported). As'; such the trial was a nullity. 1 1 ~ It would appear to us that this as pect of the case1 was not brought to the ! I attention of the learned judge on first c!Ppeal. This fa~ completely escaped his , I J I mind. On this ground we fault the le~rned judge on first appeal for upholding ·I I the conviction of the appellants on prqceedings which were a nullity. We find 1 I this ground having merit and we allow it. lj The learned State Attorney hesitated to ask for r~-trial claiming that there was no sufficient evidence for the pr1secution of the Iappellants with the said I I offences. In this respect we allow the appeal, quash the convictions, set aside 10 the sentence and order the immediate rel,ease of the appellants unless they are i. I I held for any other lawful cause. It is accordingly ordered. i ! I DATED at MWANZA this 26th day of September, 20~1. I, i I E. M. K. RUTAKANGWA I JUSTICE OF APPEAL · I I I N. P. iKIMARO JUSTICE OF APPEAL I I K. K. ORIYO ' JUSTICE OF APPEAL I certify that this is a true copy of the original. I I r fI DEPUTY R'EGISTRAR COURT OF APPEAL 11