20130916 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA AT TABORA I (CORAM: MBAROUK, J.A., MANDIA, J.A. And MMILLA, J.A.) CRIMINAL APPEAL NO. 150 OF 2009 I BENJAMIN S/0 AMON ••••••.••••••••••••.••••.••••• 1•••••••••••••••••••••••••••••••••••• APPELLANT I VERSUS I . THE REPUBLIC. I 1111 • • • • • • I • • • • • • • • ■ •• ■ •••••• I 1111 • • • • • I • • • • • • • • • • • • • • • I I I I • • • • • • • • • • • • • RESPONDENT I (Appeal from the decision of the High Court of Tanzania at Tabora) (Kaduri, :l.) dated the 6 th day of May, 2009 in DC. Criminal Appeal No. 174 of 2008 I JUDGMENT OF THE COURT 11 th & 17th September, 2013 MANDIA, J.A.: I The appellant was convicted of Armed Robbery c/s 287A of the Penal Code by the District Court of Tabo~a at Tabora, ~ind sentenced to imprisonment for thirty years. He wa~ aggrieved by both the conviction I and sentence, and preferred an appeal to the High Court of Tanzania at 1 Tabora where he lost the appeal, hence this second appeal. 1 Evidence led in the trial District Court showed that on 14/10/2007 PWl Miraji Hamisi took his wife PW3 Sedi Hassani for a dance at African Hall as they were celebrating Idd el Fitr. The couple stayed in the dance hall up to 1 a.m in the morning when they went out of the dance hall for a breath of fresh air. Outside the dance hall, the couple was joined by the appellant who was in the company of a number of confederates estimated to be four or five. The group greeted the couple with the words "Halo vipi?", to which PW1 Miraji hamisi replied "Safi," meaning all was well. The group asked why the couple were there and PW1 Miraji Hamisi replied that they were resting. PW1 testified that this exchange took place while himself and his wife were seated. After the exchange the appellant came forward and addressed PW1 thus: - "Unatujibu hivyo, unatujua sisi nani?" Hearing these words, PW1 stood up. The appellant then invaded PW1 and hit him with an iron rod in the right leg ankle, breaking it. PW1 then caught hold of the appellant while the appellant's confederates searched him (PW1) and took sh. 150,000/= and a mobile phone of Motorola make worth sh. 120,000/=. The confederates also took a mobile 2 telephone of Nokia 1100 make worth sh. 55,000/= and a chain from PWl's wife. As PW1 held onto the appellant his wife PW3 shouted for help. A relative, PW2 Kwezi Hassani responded to the cries for help and found PW1 still holding on to the appellant. KWezi Hassani helped take PW1 Miraji Hamisi and the appellant to Tabora Police Station, helped by a policeman j I by the name of Sunday. In his defence the appellant claimed to have been at the scene, but alleged that he was mistaken for the robber as he went to inquire on why I PW1 Miraji Hamisi was complaining of being robbed. The appellant bought as his witness the policemen who was at the scene, DW2 E 8650 Sergeant Sunday, who testified that he heard the cries of help made by PW3 Sedi Hassani and when he went to help re found PW1 Miraji Hamisi being assaulted. by three persons, one of whqm was the appellant. Miraji Hamisi I I had his leg broken by an iron rod, and was complaining of being robbed of I a mobile telephone and cash, Sergeant Sunday went on. He took Miraji Hamisi, the appellant and Miraji's wife to the Police Station. 3 The trial court did not buy the appellant's allegation that he was mistaken for a thief. It found as a fact that the appellant was part of a group of people which set upon PW1 Miraji Hamisi, beat him and robbed him of a mobile telephone and cash sh. 150,000/= and that the appellant was the one who did the beating and while his confederates searched and robbed PW1. The trial court also found as a fact that PW1 Miraji Hamisi held onto the appellant while his wife shouted for help, and when help came in the form of PW3 Kwezi Hassani and DW2 Sergeant Sunday the appellant was still under the restraint of PW1 Miraji Hassani. Based on these findings the trial court convicted the appellant as charged and sentenced him accordingly. On appeal to the High Court of Tanzania at Tabora, the appellate High Court found that the issues of fact decided by the trial court were based on the credibility of witnesses as assessed by the trial court and upheld the findings of fact. The appellant then preferred the present appeal. The appellant filed a memorandum of appeal containing six grounds which can be summarized thus: - 4 I.. 1) that the complainant and his wife could not identify him at the scene of crime sinae they were in a state of panic and their minds were confused. 2) that the trial court erred in believing DW2 E 8650 Sgt Sunday when he gave evidence favourable to the prosecution while he (appellant) called him as a defence witness, not taking into account that police officers always aim to give evidence incriminating others.; 3) that the trial court did not observe the principle that the burden of proof in criminal proceedings always rests on the prosecution and convicted i while the prosecution through its witness did not discharge this burden. 4) that the trial court erred in holding that the appellant was arrested at the scene of the crime. 5) that the evidence led during the trial differed from the preliminary hearing which made evidence led during the trial to be lies. 5 6) that the High Court did not afford the appellant an opportunity to arJue his case during the hearing of the first appeal. I At the hearing of the appeal, lthe appellant appeared in person, unrepresented, while the respondent: Republic was represented by Mr. Hashim Ngole, learned Senior State Attorney, who supported the conviction I and sentence. The appellant had nothing to add to the memorandum of I appeal already filed. I Arguing the appeal on behalf of the respondent republic, Mr. Hashim Ngole pointed out that grounds numbJr one, two and four and new since I there were not raised in the High Court as indicated by the petition of appeal to the High Court which appears at page 33 of the record. I Mr. Hashim Ngole argued that since this is a second appeal, no new ground I can be canvassed, and he urged this Court to dismissed ground number I one, two and four. To support his argument he cited an authority of this I Court Juma Manjano vs The Republic, Criminal Appeal No. 211 of 2009 1 (unreported). The Juma Manjano ca se (supra) in turn cited SAMWELI 6 ' SAWE vs REPUBLIC, Criminal App'eal No. 135 of 2004 (unreported). I Both these two cases stress the point that a second appellate court cannot I adjudicate on a matter which was not raised and decided as a ground of I appeal in the High Court on a first appeal. We subscribe to the argument of the learned Senior State Attorney, 1 and accordingly strike out grounds one, two and four. This leaves us with grounds threJ, five and six. I I In ground three the appellant raises the complaint that the I prosecution did not discharge its burden of proving the charge levelled 1 against him beyond reasonable doubti. Arguing this ground Mr. Hashim I Ngole pointed out that the issue bo~h in the trial court and the first appellate court was the credibility Jf witnesses who testified for the prosecution. He pointed out that thJ evidence of the complainant PW1 Miraji Hamisi showed that he was invabed by a minimum of four persons, l one of whom disabled him by hitting hi,m on the right leg with an iron rod, I I breaking the leg at the ankle. Miraji H~misi testified that he identified the person who hit him with the iron rod as the appellant, and that he caught I the appellant and held on to him wh;ile himself and his wife PW3 Sedi Hassani called for help, and that aJ he held onto the appellant his 7 ' I colleagues searched his pockets and took from therein cash sh. 150,000/= 1 as well as a mobile telephone. The evidence of breaking of the leg is corroborated by the wife PW3 Sedi Hassani as well as PW2 Kwezi Hassani. Even a witness called by the appellant in his defence testified that when he 1 responded to the alarm raised by PW1 Miraji Hamisi he found the appellant 1 still in the grip of the former. Both courts below found that there was I stealing and that the stealing was preceded by use of force which led to I the breaking of the complainant's leg, and that the appellant was caught at the scene while his confederates escabed. These two concurrent findings of fact by the trial court and the first appellate court show that the prosecution has discharged its burden ,of proving of offence. The defence of the appellant shows he admitted being arrested at the scene of the I crime but denies robbing PW1 Miraji Hamisi. This defence is a mere denial i which has not shaken the credible evidence given by PW1, PW2 and PW3. I We are satisfied that there are no compelling reasons to differ from the concurrent findings of fact of the two ~ourts below. We find ground three devoid of merit and hereby dismiss it. 8 In ground five the appellant is arguing that the evidence of the I witnesses given in court differs from the facts as outlined during the ' preliminary hearing so the witness must be liars. We have gone through the record. When the case was called on for preliminary hearing on I 31/12/2007 the prosecution gave an outline of the facts as outlined in what the trial record referred to as the facts sheet. Thereafter a memorandum of undisputed facts was prepared by the trial court. The appellant refused to sign the memorandum of undispute_d facts and told the trial magistrate I he (appellant) had written a letter of complaint to the District Registrar i against the trial magistrate. The matter was adjourned to 14/1/2008 to enable the appellant to forward his, written complaint to the District Registrar as he had promised on 31/12/2007. On 14/1/2008 the appellant I insisted that the magistrate conducting the preliminary hearing should disqualify himself from the conduct of the case. The trial magistrate duly disqualified himself, and the conduct of the case shifted to another I magistrate. The record therefore showed that the preliminary hearing was not conducted because the appellant :refused to participate in it. It is therefore not correct for the appellant to argue that there is a difference between the conduct of preliminary hearing and the trial because the 9 preliminary hearing was not held after he refused to participate. The position in law, however, is that even if the proceedings in a preliminary hearing are defective this does not affect the conduct of the trial provided that the trial follows the correct procedure and law - see EX-NO 13969 SGT DANIEL MSHAMBALA vs REPUBLIC, Criminal Appeal No. 183 of 2004 (unreported). In the instant case, the trial court and the High Court proceedings followed the correct procedure and applied the law correctly, so the lapse in the preliminary hearing, which was caused by the conduct of the appellant himself, did not vitiate the trial proceedings. Ground number five is therefore dismissed. Lastly, in ground number six the appellant is raising a complaint that the appellate High Court did not afford him an opportunity to argue his case. The record does not support the appellant. As pointed out by the learned Principal State Attorney, page 37 of the record of appeal shows that the appellant started first addressing the High Court and was followed by the State Attorney. When the State Attorney rested his submission the appellant was given a chance to rejoin, which he utilized. The record therefore shows that the appellant was given all opportunity to argue his 10 I l appeal, and his protestations as sho n in ground six: do not reflect the truth. Accordingly we find the ground ~nsubstantiated bnd dismiss it. . I 11 In the upshot, we find that the rppeal has beenl filed without merit I I and hereby dismiss it in its entirety. ' · ' DATED at TABORA this 16th day pf September, 2013. I M.S.MBAROUK JUSTICE OF APPEAL I I W. S. MANDIA JUSTICE OF APPEAL I I B. M. K. t1MILLA JUSTICE OF APPEAL \, jl I certify that this is a true copy o~' the original. (Z. A. MARUMA) , DEPUTY REGISTRAR COURT OF ~PPEAL - 11