20150930 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: KIMARO, J.A., MASSATI. J.A., And MZIRAY, J.A.) CRIMINAL APPEAL NO. 37 OF 2009 1. ATHUMAN JUMA 2. SIWEMA TASIANO@ABDUL 3. IBRAHIM CLEMENT ••••••••••••••••••••••••••••••••••••••• APPELLANTS 4. KAMBONA PASCHAL 5. PAULO EMMANUEL NTOROGO VERSUS THE REPUBLIC •••••••••.:~ ••••••• I ••••••••••••••••••••••••••••••••••••••••••••••• I •••• RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Tabora) (Kaduri, J.) dated the 31 st day of October, 2005 in Criminal Appeals No. 168, 169 170, 171, 172, 173, 174, 175, 176 and 177 of 2005) JUDGMENT OF THE COURT 28th Sept. & 1st Oct., 2015 KIMARO, J.A.: The District Court of Urambo convicted the appellants and five other accused persons with the offences of armed robbery contrary to sections 285 and 286 of the Penal Code, [CAP 16 R.E.2002]. They were each convicted with different counts out of the total eight counts of armed robbery which were preferred against them. The offences were alleged to 1 have been committed on 1st November, 2003 at about 20.00 hours at Naungwa No.5 within Urambo District in Tabora Region. All appellants were aggrieved by the convictions and the sentences of thirty years imprisonment that were imposed on them. After lodging their first appeal in the High Court the rest of the appellants succeeded in their first appeal. The appellants lost their first appeal and they filed this second appeal in which they are still contesting their innocence. At the hearing of the appeal all appellants appeared in person. They had no advocate to represent them. Ms Jane Mandago learned Senior State Attorney represented the respondent/Republic. Each of the appellant raised several grounds of appeal. Since we have found an irregularity in the whole proceedings we are not going to address the grounds of appeal. The appeal will be disposed of by resolving the irregularity which the Court, "suo mottd' raised and required the parties to address the Court on it. The irregularity noted is on the charge sheet. The parties were required to address the Court on the propriety of the charges. The learned 2 Senior State Attorney made a positive response to the issue and for obvious reasons. She possesses legal knowledge on the issue that was raised by the Court. The appellants were not able to make a useful response because they do not possess legal knowledge. They are not to be blamed for that matter. Addressing the Court on the charges which were preferred against the appellants, the learned Senior State Attorney admitted that the charges were not properly drawn. She said that the appellants were charged with the offences of armed robbery. However, it was not indicated in the charge sheet against whom the offences were committed. She admitted that the defect in the charges is one which cannot be cured by section 388(1) of the Criminal Procedure Act,- because the defect is one which goes to the root of the whole trial. The appellants, said the learned State Attorney, were denied the right to make a proper defence. She requested the Court to declare the trial and the subsequent proceedings that followed a nullity and strike out the appeal. As said above the appellants were not useful in making a sensible reply on the issue because they lack the legal knowledge. What seems to be important to them is their freedom. What each of the appellants told 3 the Court is that they have been in custody for· several years and they requested the Court to set them free. The issue the Court has to determine is the propriety of the charges the appellants were charged with. The appellants as said before were charged with various offences of armed robbery contrary to section 285 and 286 of the Penal Code. Section 285 reads as follows: "285. Any person who steals anything and, or immediately before or after the time of stealing, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen is guilty of robbery" The second schedule to Cap. 20 shows a format for charging the accused person with the offence of robbery. It provides as follows at item 8. 8-ROBBERY Robbery with violence, contrary to section 285 of the Penal Code. PARTICULARS OF THE OFFENCE A.B., on the ............ day of ............................. in the region of........................ . 4 stole a watch and at or immediately before or immediately after the time of such stealing did use personal violence to C.D." When the offences the appellants were charged with are compared to the directions of the law on how charges should be framed against an accused person, there is a clear indication that the charges preferred against the appellants were defective. A reproduction of the first count will show the defects we are talking about. 15T COUNT: OFFENCE SECTION AND LAW: Armed robbery c/s 285 and 286 of the Penal Code, Cap. 16 Vol. 1 of the laws read together with Act No. 10/1989 PARTICULARS OF THE OFFENCE: That Paulo s/o Emmanuel, @Ntogoro, Siwema s/o Tasiano @ Abdul, Athuman s/o Juma, Julias s/o John, Julius s/o John, James s/o Jonas, Ismail s/o Abdallah, Omary s/o Bernard, Joseph s/o John, Ndalihimana d/o Consolata, Ndaishimiye d/o Sporas, and Nivigora d/o Ivanet, are jointly and together charged on the 1st day of September, 2003 at about 20.00 hrs at Nsungwa No.5 within Urambo District in Tabora Region did steal cash T.shs. 43, 6000/=, six bed sheets valued at T.shs. 31,000/=, 7pcs of Kitenge valued at T.shs. 24, 500/= 5 T shirts valued at 5 T.shs.27,500/=, 7 blouses valued at Tshs.42,000/=, 5 pairs of shoes valued at T.shs. 27,500/=, 4 pcs of khanga valued at T.shs. 12,000/=, five bags of sugar valued at Tshs. 35,000/=, one carton of dollar konyagi valued at T shs. 6,000/=one bag of tissue valued at T.shs. 7,000/= All total value at T.shs. 256, 100/=the property of MILTON S/O KACHILA and immediately before or after such stealing did use home made gun SMG/SAR in order to obtain or retain the said properties. The appellants were charged with eight counts of armed robbery and all of them omitted to mention against whom the gun was pointed at immediately with the intention of stealing the properties or immediately after stealing the properties with the intention of retaining the same after stealing. This was a serious omission on the part of the prosecution. This Court said in the case of Mussa Mwaikunda V R [2006] T.L.R. 387 that:- "The principle has always been that an accused person must know the nature of the case facing him. This can be achieved if a charge discloses the essential element of the offence. " An important ingredient of the offence of armed robbery is the use of force against the victim of the offence. The purpose of the use of force 6 must either be for stealing or retaining the property after stealing the same. In this case it is not indicated against whom the force was used. What the charge sheet shows is the owner of the property. A question which arises is was the force used against the owner or somebody else? The omission to mention against whom the force was used caused injustice on the appellants. The observation made by the Court in the case of Isidori Patrice V R, Criminal Appeal No. 224 of 2007 (unreported) is worthy of reminding the prosecution on the importance of proper framing of charges against the accused persons. . The Court held that:- "It is mandatory statutory requirement that every charge in a subordinate court shall contain not only a statement of the specific offence with which the accused is charged but such particulars as may be necessary for giving reasonable information as to the nature of the offence charged It is now trite law that the particulars of the charge shall disclose the essential elements or ingredients of the offence. This requirement hinges on the basic rules of criminal law and evidence to the effect that the prosecution has to prove that the accused 7 committed the actus reus of the offence with the necessary mens rea. Accordinglr✓ the particulars, in order to give the accused a fair trial in enabling him to prepare his defence/ must allege the essential facts of the offence and any intent specifically required by the law. ✓, The sample of the charge which the appellant were facing as reproduced above, shows that it did not show against whom the force was used. That is an important ingredient of the offence of armed robbery. The omission to mention against whom the offence was committed cannot be cured by section 388(1) of the Criminal Procedure Act. See the cases of Mwaikunda (supra) and that of Uganda V Hadi Jamal (1964] E.A.294. The deficiency in the charge sheet as indicated is sufficient to dispose of the appeal. The records show that the appellants were first brought to court to answer the defective charges on 14th November, 2003. The appellants were not granted bail because it is not a bailable offence. They were convicted on the defective charges on 19th September, 2005. They have therefore remained in custody for about twelve years. Since we have found that the proceedings were a nullity "abinitio," we accordingly, under Rule 38 of the Court of Appeal Rules 2009 nullify the proceedings in the 8 f~ Jj I· ' trial court and the first appellate court. We order the release of the · appellants from prison unless they are held there for other lawful purposes. DATED at TABORA this 30th day of September, 2015. N. P. KIMARO JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL R. E. MZIRAY JUSTICE OF APPEAL I certify that this is a true copy of the original: WL, ~v Z. A. 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