20140303 TZHC Tabora

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: MSOFFE, J.A., KIMARO, J.A., And MJASIRI, J.A.) CRIMINAL APPEAL NO. 2 "B" OF 2010 PAUL JACOB ................................. :II • • • • • • • • • • • • • • • • • • • APPELLANT VERSUS THE REPUBLIC ····"·····················~·-·~························· RESPONDENT (Appeal from the decision of the.High Court of Tanzania at Tabora) (Kaduri, J.) dated the 29th November, 2010 in Criminal Appeal No. 43 of 2007 ....••............ JUDGMENT OF THE COURT 3 rd & 4TH March, 2014 MSOFFE, J.A The appellant's "conviction" for armed robbery and sentence of thirty years imprisonment by the 'District Court of Tabora which were upheld by the High Court at Tabora were grounded on the evidence of PW1 Stephen Mswanyama, PW2 Paulo Adam and PW3 Leticia Adam. In the night of 11 th 1 ,. , May, 2005 PWl and PW2 slept in one room. PW3 slept in an adjacent room but could see and observe what was going on in the room wherein PW1 and PW2 slept. The appellant and another who was "convicted" in absentia after escaping from police custody broke in wielding pangas and demanded money from PWl. In the process, they chopped off PWl 's last finger of the left arm and robbed his bicycle, cash 30,000/=, two pairs of shoes, a bag worth 10,000/= and an identity card. According to these witnesses, they duly identified the appellant because he was familiar to them and that the room was lit by a medium-sized hurricane lamp. Before us the appellant appeared in person, unrepresented. His basic complaint was, and indeed still is, that the "conviction" was against the weight of the evidence on record and his effort to this effect was ·essentially supported by Mr. Juma MasanJa, learned State Attorney for the respondent Republic, who declined to support the "conviction". For reasons that will emerge hereunder, we will not determine the ' appeal on merit. We will not do so not out of discourtesy to the appellant and the learned State Attorney. Rather, we will not do so because in the 2 '-I - justice of the case we are of the view that there were unpleasant features in the trial which were, and indeed still are, fatal to the proceedings before the trial District Court and the High Court in the first appeal. To start with, a look at the charge sheet dated 20/5/2005 will show that the complainant was one Bilali Kipanya. The properties said to have been stolen belonged to this person. In our understanding of the law, the said Bilali was a material witness in terms of section 195(1) of the Criminal Procedure Act (CAP 20 R.E. 2002)( the Act) so as to ensure "the just decision of the case". Apparently, he was not summoned to testify in the trial and no reason was assigned by anyone to explain the failure to do ' so. As it is, in a sense, there was a variance between the charge and the evidence in relation to who exactly was the complainant in the case. We think this was a material variance which could not be cured under section 234(3) of the Act because the variance had nothing to do with "the time at which the alleged offence was committed. .. " (Our emphasis.). In the absence of reasons to justify the failure to summon the said Bilali, it follows that the variance went to the root of the case. 3 ' . The judgment· of the District Court was prepared and dated 10/11/2005 by Kamalamo, ,DM but it was actually delivered on 17/11/2005 by Kivembe, RM. It is curious to note here that Kamalamo, DM was merely satisfied that the appellant was guilty in that he committed the offence and stopped there. He did not go a step further to convict the appellant. The failure to convict offended the mandatory provisions of section 235(1) of the Act. In the light of the above shortcomings, we asked ourselves this question. What is the way forward? This is the question we also posed to Mr. Masanja. In his respectful answer, he was of the view that an order for a trial de novo will not be appropriate because this will merely amount to giving the prosecution side time to build its case afresh thereby subjecting the appellant to double jeopardy. On this assertion, we entirely agree with Mr. Masanja and we will not say anything more on the point. Mr. Masanja went on to submit that, at any rate, the evidence on record did not establish the prosecution case against the appellant beyond reasonable doubt. Thus, to order a retrial will simply amount to giving time 4 '4 to the prosecution to fill up gaps in its earlier case against the appellant. Yet again, we are in agreement with Mr. Masanja. The evidence on record shows that, all things being equal, the prosecution case was to stand or fall on the evidence of identification by the above three witnesses. According to them, they identified the appellant because there was a medium-sized hurricane lamp, as already ,stated. Yet we are not told whether or not the lamp was placed in a good vantage point as to allow for correct identification, whether or not the light emanating therefrom was bright enough to allow the witnesses identify the appellant properly, the size of the room, etc. Besides a retrial we also thought of remitting the record to the trial District Court for purposes of entering a conviction. Yet again, in the · circumstances of this case, we thought that this is not a viable option because of two reasons. One, as observed above, there was no proper charge known in law against the appellant. Two, in any case, assuming the charge was not defective the evidence on record is not enough to justify a conviction. 5 ",, In the end, for reasons stated, in the exercise of our revisional jurisdiction under section 4(2) of the Appellate Jurisdiction Act (CAP 141 ' R.E. 2002) we hereby declare a nullity the proceedings and judgments of the courts below. The appellant is to be released from prison unless he is held therein in connection with a lawful cause. For the avoidance of doubt, although no appeal was preferred by the other accused person (Athuman Shabani), the effect of our decision affects him as well. DATED at TABORA this 3rd day of March 2014. J. H. MSOFFE JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy of the original. p~~A SENIOR DEPUTY REGISTRAR COURT OF APPEAL 6