20110622 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) (PC) CRIMINAL APPEAL NO 4 OF 2011 (From the decision of the District Court of Dodoma in Criminal Appeai No 47 of 2006 and Original Criminal Case No 44 of 2006) DAVID SOLOMON ................................................... APPELLANT VERSUS illILLIAM SAMVUGI..............................................ulRESP0NDENT JUDGMENT 15/06/2011 & 22/06/2011 KWARIKOI 3. The appellant was charged with the offence of Armed Robbery contrary to section 285 and 286 of the Penal Code. The prosecution had 8th day of October 2005 at night hours in Iringa Mvumi alleged that on the village within the district and region of Dodoma the appellant invaded the complainant William Samvuga and cut him With machete before he stole tshs 120,000/= from him. The appellant had denied the charge hence his trial. 1 During the trial the prosecution evidence was to the effect that: on the material day at night hours the respondent herein (PW1) was invaded by thugs who included the appellant herein and they cut him with machete and robbed him shillings 120,000/= which were in his pair of shorts. PW1 raised alarms where his neighbours including Joseph Ngana (PW2) and Mtôrole Myori (PW3) where they managed to arrest one thug who was arraigned in court and another one was arrested and arraigned in court in November 2005. The appellant who was armed with a machete during the robbery had threatened the alarms' attendants and managed to run away. He was arrested later. In his defence the appellant only said that he was arrested on 17/3/2006 and charged with the present offence. The trial court found that the charge against the appellant had been satisfactorily proved hence found him guilty, convicted and sentenced him to thirty (30) years imprisonment. The appellant unsuccessfully appealed before the district court. Therefore, this is a second appeal. In this appeal the appellant is complaining that the case against him was not proved beyond reasonable doubts; that the evidence in relation to his identification at the scene was not watertight. This appeal was heard in the absence of the respondent because efforts to trace him proved PA unsuccessful after the village executive officer of his last known address notified the court that he has relocated from there. For the reasons I am soon going to explain hereunder this appeal is not going to be decided on merits. Firstly, I found that the particulars of the offence did not tally with the offence charged. This is so because when robbery involves the use of any firearm or offensive weapon (as in this instant case) or when the robber is in company of one or more others it is termed "armed robbery" as defined under section 287A of the Penal Code Cap 16 R.E. 2002 as amended by Act no 4 of 2004. And this offence is not among the ones which are triable by the primary courts. The offences which the primary court has jurisdiction to try are listed in the First Schedule to the Magistrates Courts' Act Cap 11 R. E. 2002. Only the offence of robbery under section 286 is on the list and this involves robbery when only threatens to or uses actual violence to the victim. Thus, if the legislature had intended the offence of armed robbery to be included in the list of offences triable by the primary courts it would definitely have amended Cap 11 R.E. 2002 to include it when the same was created by Act no 4 of 2004. Therefore the trial magistrate ought to have seen the particulars of the offence and also the evidence adduced in court to know that he had no 3 jurisdiction to try the offence. And the punishment meted out to the appellant is for the offence of armed robbery and not the one he was charged with which carries a maximum penalty of fifteen years imprisonment (as amended by Act no 4 of 2004). Consequently, through this court's revisionary powers I declare the trial court's proceedings null and are hereby quashed. All orders thereto are set aside. Likewise the appeal proceedings before the district court are nullified and quashed as they originated in the null proceedings. In the normal course of things I would have ordered the appellant's retrial before a court of competent jurisdiction but the evidence against him is too weak to sustain conviction. Most importantly his identification at the scene was not proved since the prosecution witnesses said they identified the appellant at night time through moonlight without any further explanation. It has been held even by the Court of Appeal of Tanzania that moonlight is not the best source of light for proper identification (see JUMANNE FUNDI @ ZAKARIA & TWO OTHERS VS R, Criminal Appeal no 7 of 2011 Dodoma registry, (unreported)). And the appellant has been incarcerated since March 2006 which is a long time hence has definitely learnt to be good citizen if at all he had involved in this matter in anyway. 4 '4 Finally, I allow the appellant's appeal and order his immediate release from custody unless his continued incarceration is connected with other lawful cause. it is so held. (M .AI(WARIKO) JUDGE 22/06/2011 AT DODOMA. 22/6/2011. Appellant: Present. Respondent: Absent. C/c: Ms. Komba. • ,.9;---:. A (M. KWARI KO) I I' JUDGE A / 1 'p22/6/2011 5