20140315 TZCA Arusha 2

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: BWANA. J.A: MAN PIA, J.A: And ORIYO. 3.A.) CRIMINAL APPEAL NO. 59 OF 2013 1. KAROLI MATHIAS JACKSON ^ 2. JULIUS EVARIST KAMI LI I 3. J ABDALA KAMBONYO ALOYCE .......................... . APPELLANTS VERSUS THE REPUBLIC............................................................ RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Moshi) (Makuru. J.^ Dated the 20th day of February, 2013 in DC. Criminal Appeal No. 10 of 2011 JUDGMENT OF THE COURT Date 4th frig * March, 2014 MAN PI A. 3.A.: Seven persons, 1. KAROLI S/o MATHIAS JACKSON @ ROBATH MATHIAS 2. JULIUS EVARIST KAMILI @ MROM BOO 3. ABDALLAH KAMBONYO ALOYCE @ JEROMIN 4. MUSA JUMA TITO MKILINDI 5. JOACHIM AIWINIA AFORO @ MAKINI 6. RAMADHANI JUMANNE 7. JIMMY S/o JOSEPH MONGI appeared in thes District Court of Moshi at Moshi on a joint charge of Armed Robbery c/s 287A of the Penal Code. In addition to the joint charge, two accused persons i.e the fifth accused person JOACHIM AIWINIA AFORO @ MAKINI and the sixth accused person RAMADHANI JUMMANNE faced a second count of Receiving stolen property c/s 311 of the Penal Code. When the prosecution closed its case the trial District Court found that no prima facie case had been established against the sixth accused person RAMADHANI JUMANNE. The Court found the sixth accused person not guilty and acquitted him. The rest of the accused persons were put on their defence, at the end of which the fourth, fifth and seventh accused persons were found not guilty and acquitted. There remained the first and second accused persons who were found guilty of Robbery with Violence c/s 287A of the Penal Code and each of them sentenced to thirty years imprisonment, and the third accused person who was found guilty of Receiving Stolen property c/s 311 of the Penal Code and sentenced to five years imprisonment. Aggrieved, the accused persons preferred an appeal with the High Court of Tanzania at Moshi. Ironically, the accused persons preferred an appeal against conviction and sentence, even though the trial court sentenced them without convicting them. The appellate High Court did not notice this default and proceeded to hear and determine the purported appeal against both conviction and sentence. After due hearing, the appellate High Court found no merit in the appeal and dismissed it in its entirety. This led to the present appeal. The first three accused persons in the trial court are the appellants in the present appeal. They appeared in person, unrepresented, while the respondent Republic was represented by Mr. Zakaria Elisaria, learned Senior State Attorney. The appellants have lodged a memorandum of appeal containing five grounds but only two grounds of complaint emerge from the memorandum. These are:- (1) That the first appellate court erred in fact and law in upholding the conviction entered by the trial court when the conviction was based on the evidence of witnesses who were not credible. (2) That the first appellate court erred in fact and law in upholding the conviction of the trial court which was based on a confession which lacked probative value in law. The background to the case against the appellants in the trial court and the subsequent appeals shows that on 1/4/2009 at 1.30 a.m, just after midnight, PW4 James Ram Selengia, a resident of Rombo Avenue, shanty Town, Moshi town, was awakened from sleep by the sound of movement in his sitting room. As PW4 walked from his bedroom to the sitting room while shining a flashlight, he asked ”Nani wewe". Somebody replied nN i sisi Majambazi". In the darkness of night Pw4 saw the silhouette of a fat person in black clothes carrying what looked to him like an iron bar. Apparently PW4 felt not safe to go further towards the sitting room so he stopped at the door to the sitting room. The silhouetted person seemed to have been angered by the action of PW4 of not going to the sitting room so he called out "shenzi wewe, pumbavu, kumanina, leo utaona, fungua mlango". While the unknown self-declared bandit was uttering the profanities, PW4's wife shouted for help. The shouts scared the bandit and others who were outside the house. After the bandits left PW4 called the Regional Police Commander who went to the scene in the company of two police officers. A quick look around showed that the bandits gained access to the house through a glass side door whose mirror they had broken. From the sitting room the bandits had stolen a television set of Sony Wega make, Sony deck, sub-woofer and two speakers, two satellite dishes, a small stand watch and TV cable and accessories PW4 was emphatic that he did not identify any of the robbers who visited him that night. After a report to the police, a spate of arrests followed. The arrest followed a visit to the scene of the crime by PW5 E 7718 Detective Constable Alkabour, who made the visit on 1/4/2009 and discovered that the house of PW4 James Ram Selengie had been burgled and various properties stolen from therein. On 16/4/2009 another police officer PW1, E 1124 Detective Constable Joachim received information that the first appellant had in his possession property suspected to have been stolen after the burglary at the complainant's house. Detective Constable Joachim therefore went for the first appellant Karoli Mathias Jackson who he arrested at Bulawayo Bar after a search. The search at Bulawayo Bar was witnessed by two witnesses PW2 Nuru Amiri Shenagali and PW3 Cleophas David Shemwata each of whom testified to having seen a TV being recovered after the search on the first appellant's house. PW1 Detective Constable Joachim tendered the TV of Sony Wega type in the trial court as Exhibit PI. The record of evidence shows that after the seven persons who appeared to answer charges in the trial court were arrested, they were taken into custody and their respective statements recorded. When he gave evidence during the trial PW5 E7718 Detective Constable Alkabour put into evidence the cautioned statements of the first accused KAROLI MATHIAS, the fourth accused MUSA JUMA and the fifth accused JOACHIM AIWINIA AFORO. The accused persons objected to their statements being tendered in evidence arguing that their statements were obtained under torture. The trial court held an inquiry into the admissibility of the cautioned statements, at the end of which the court ruled the statements admissible and admitted them into evidence as Exhibits PW4, P5 and P6 respectively. After the inquiry the trial resumed and three other witness testified before the prosecution closed its case. At the closure of the case for the prosecution the court found that a prima facie case had not been established against the sixth accused person whom it proceeded to acquit. The rest of the accused persons were put on their defence in which each denied involvement in the charges against them. Delivering judgment after the trial, the court found the first accused and the second accused guilty of the first count of Armed Robbery, and the third accused person guilty of Receiving stolen property knowing the same to have been stolen. The court then proceeded to sentence the first and second appellants to thirty years imprisonment, and the third accused person to five years imprisonment. The three persons were aggrieved with the findings of guilt and sentence and they preferred an appeal to the High Court of Tanzania at Moshi. The High Court found their joint appeal devoid of merit and dismissed it in its entirety. There is one point which deserves our comment. This is the fact that in their joint petition of appeal, the appellants moved the appellate High Court to find that their conviction and sentences by the trial court were erroneous and they urged the appellate Court to upset both the conviction and sentences. In hearing the appeal on merit and then dismissing it in its entirety, the appellate High Court took the appeal before it as proper. We will revert to this later. Two appellants, KAROLI MATHIAS JACKSON and JULIUS EVARIST KAMI LI appeared in person before this Court, unrepresented, to argue their appeal. The respondent Republic was represented by Mr. Zakaria Elisaria, learned Senior State Attorney. Before the hearing of the appeal on merit commenced, the Court raised the point, suo motu, whether the appellants were indeed convicted in the trial court or not. Mr. Zakaria Elisaria conceded that indeed the appellants were found guilty but not convicted in the trial court, yet their appeal was admitted and heard in the appellate High Court and judgment rendered in which the appellate High Court dismissed the appellants' appeal in its entirety. The learned Senior State Attorney moved this Court to invoke Section 4(2) of the Appellate Jurisdiction Act, nullify the proceedings of the High Court and remit the record to the trial court for conviction and sentence. On their part the appellants prayed to the Court to take into account the period they have spent in jail and "/?e/p"them by passing the sentence instead of remitting the record to the trial Court. As matters stand two accused persons were found guilty of Armed Robbery by the trial court and sentenced to imprisonment for thirty years. There was a third accused person who faced a charge of Receiving Stolen property knowing the same to have been stolen who was also found guilty by the trial court and sentenced to five years imprisonment. These three persons preferred a joint appeal to the High Court which dismissed their appeal. The third person who was sentenced to five years imprisonment did not prefer an appeal to this Court. It was only the accused persons who were sentenced to thirty years imprisonment who preferred an appeal to this Court. The record before us shows clearly that the trial court did not convict the appellants but nevertheless proceeded to sentence them to long terms of imprisonment. This Court has consistently held that the requirement to convict under section 235(1) of the Criminal Procedure Act, Chapter 20 R.E. 2002, is a mandatory duty placed on the trial court, and that in order to pass sentence the trial court must first convict. We have held so much in the cases of SHABANI IDDI JOLOLO AND ANOTHER versus REPUBLIC, Criminal Appeal No. 200 of 2006 (unreported) AMINA FUNGABASI Versus THE REPUBLIC, Criminal Appeal No. 270 of 2008 (unreported), JONATHAN MLUGUANI versus REPUBLIC, Criminal Appeal No. 15 of 2011, (unreported), KHAMIS RASHID SHABAN versus REPUBLIC, Criminal Appeal No. 184 of 2012 (unreported), and 1. PAUL s/o EMMANUEL @NTOROGO 2. SIWEMA s/o TASIANO versus THE REPUBLIC, Criminal Appeal No 19 of 2008. The judgment of the trial District Court therefore violates both section 235(1) and section 312(2) of the Criminal Procedure Act with regard to conviction and sentence. This makes the judgment of the trial District Court a nullity. The appellate High Court admitted this nullity into hearing and passed judgment over it. The above -quoted cases have also held that failure to convict is a fatal irregularity. The appellants preferred an appeal to the High Court against both conviction and sentence. We have shown that there was no conviction against which the appellant could have appealed, though there was a sentence which they could appeal against. The Petition of Appeal which is the basis of the appeal which the appellate High Court heard and determined showed that the appellants preferred an appeal against conviction and sentenced by the trial District Court. The appellate High Court therefore passed judgment over a non-existing trial court's conviction and an existing trial court's sentence. The learned Senior State Attorney Mr. Zakaria Elisaria, has urged this Court to exercise its revisional jurisdiction and quash the judgment of the trial District Court for its failure to convict. We agree. We have observed that the trial court found the appellants guilty after considering confessional statements which were proved against them in the trial court. The appellants had objected to statements being proved against them alleging that they were obtained under duress. The trial District Court acted properly by holding an inquiry before ruling the confessional statements to be admissible. In their appeal to High Court, the appellants raised nine grounds of appeal, six of them being based on their confessional statements. It is the High Court, as a first appellate court, which is best placed to consider the grounds, and not this Court which is a second appellate Court. In exercise of our revisional jurisdiction under Section 4(2) of the Appellate Jurisdiction Act, Chapter 141 R.E. 2002, we quash the judgment of the trial District Court and set aside the sentences imposed against the appellants. We also direct the trial District Court to write a judgment accordance with the law. Since there is no valid judgment upon which appeal to the High Court could be based, the appellate High Court had no valid judgment to uphold or dismiss an appeal. We also act under our revisional jurisdiction as conferred by Section 4(2) of the Appellate Jurisdiction Act, Chapter 141 R.E. 2002 of the laws. We have taken note of the appellants' complaint that they have been in custody since 2009. We therefore order the remittance of the record to the trial court be done with haste. DATED at ARUSHA this 15th day of March, 2014 S.J. BWANA JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL K.K. ORIYO JUSTICE OF APPEAL I certify that thtess a true copy of the original. W.A. MAl^EWO \ DEPUTY REGISTRAR CbURT OF AP> EAlr