20150213 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM HC C_RIMINAL APPEAL NO. 148 OF 2014 (Appeal from the decision of the Temeke District Court in Criminal Case No. 395 of 2009) HASSAN! KIRUNGI .................................................. APPELLANT Versus THE REPUBLIC ....................................................... RESPONDENT 12th December, 2014 & 13th February, 2015 JUDGMENT Feleshi, J.: The appellant, one Hassani Kirungi, has appealed to this court challenging the judgment of the Temeke District Court that convicted him· of Armed Robbery, an offence which both the prosecution and the trial court indicated that it is created by section 187A of the Penal Code, Act NO.4/2004. He was at the end sentenced to thirty (30) years imprisonment. Part of that judgment reads at page 8: "The court after hearing the evidence of the whole case and through perusal of witnesses' evidence and accused testimony the court is satisfied that the accused was one who was involved in committing the offence and was assisted by his friend who escaped immediately after stealing. I therefore find the accused guilty of the offence as he is charged i.e. that of Armed Robbery." 1 ' Aggrieved by the conviction, the appellant filed ten grounds of appeal which, in my view, can neatly be reduced into one main ground namely, that, in view of the deficiencies obtaining in the prosecutions' case the appellant's conviction and sentence are against the law. The Republic, the Respondent, through Ms. Rachel Magambo, the learned State Attorney, supported the appeal chiefly due to the insufficiency of the prosecution's evidence. Before going to the merits of the appeal, I will first determine whether the appellant was charged under a proper charge that was competent to ground the adjudication of his trial. That is, did the prosecution lay a charge which was competent to move the court to call upon the accused person to plead against and trigger the trial proceedings? In short, it is about check listing whether sections 132, 135(a) (ii) and 128 of the Criminal Procedure Act, [Cap.20, and R.E.2002] were complied with. The provisions of sections 132 and 135(a) (ii) of the Criminal Procedure Act (supra) for criminal proceedings filed in the High court, (supra) predicates that every charge or information must contain a statement I of the specific offence describing the offence stating all the essential elements of the offence and making a reference to the section of the enactment creating the offence with which the accused person is charged. In actual fact, those are the essentials of the charge or information that any court is crowned jurisdiction under section 128 and 2 275(1) of that Act to call upon the accused person to enter and record his plea. Again, those are prerequisites of a fair trial. Basically, in our case, the appellant had rights- to understand the nature of the charge, to plead to the charge and to exercise the right to challenge it, and to make a defence or to answer the charge. (See: Mussa Mwaikunda v. Republic, [2006] TLR 387 (CAT) and Cheko Yahya v. Rep., Cr. Appeal No. 179 of 2013 CAT, Tabora Registry (Unreported), Bizabigomba S/O Tiyeri V. Rep., HC Criminal Appeal No. 47 Of 2006, Tabora Registry and Mussa Said V. Rep., HC Criminal Appeal No. 61 of 2008, Dar Es Salaam Registry (All Unreported)). In order to make good the charge sheets and make criminal proceedings compliant with the basic standards of fair trial it is for that purpose the same Act has sections 129, 234 and 276 as safe valves permitting both the prosecution and trial courts at the initial stage or subsequent stages to cure any noted defect(s). Coming to our case, it has already been shown above that the appellant was called to plead to a charge that was laid for him indicating that the offence was created by sec. 187A of the Penal Code, Act NO.4/2004. Actually, Act No.4 of 2004 is correctly cited as the Written Laws (Miscellaneous Amendments) (No.2) Act No.4 of 2004. This Act in 2004 amended the Penal, [Code, and Cap.16 R.E.2002] and specifically created and defined the offences of armed robbery and attempted robbery under ss. 287A and 287B respectively, and prescribed their penalties. Therefore, a citation of section 187A as a one of the provisions of the Penal Code creating the offence of Armed Robbery was incorrect as, first, 3 there is no such section in the Penal Code (supra); secondly, the Penal Code is not created by Act No. 4 of the 2004 but was rather amended by the later Act in 2004; and thirdly, Armed Robbery is created by section 287A and not the nonexistent section 187A. As moving the court is a stage of paramount importance in both criminal and civil cases and there is a band of authorities by the Full Bench of our Court of Appeal that if a party cites the wrong provision of the law the matter becomes incompetent as the Court will not have been properly moved (see: Hussen Mgonja v. The Trustees of the Tanzania Episcopal Conference, Civil Revision No.2 of 2002, Antony Tesha v. Anita Tesha, Civil Application No. 10 of 2003, Edward Bachwa & 3 Others v. The Attorney General & another, Civil Application No. 128 of 2006 and Robert Leskar v. Shibesh Abebe, Civil Application No.4 of 2006, (all unreported CAT decisions) and as the provisions of the Criminal Procedure Act (supra) cited above, have same effect, this court too is obliged to hold that the charge sheet that was filed in court citing a nonexistent section of law against the appellant made the case against the him incompetent before the court. In addition, as the trial court did not have a competent charge it was wrong for it to convict and sentence the appellant. The provisions of section 312(2) of the Criminal Procedure Act (supra) required and provides that in the case of conviction the judgment must specify the offence of which, and the section of the Penal Code or other law under which, the accused person is convicted and the punishment to which he is sentenced. 4 . .' As indicated at the outset, the trial court hooked itself when it indicated in its judgment that the appellant had offended section 187A, a nonexistent provisions of the law. Its consequent sentencing order therefore was a nullity due to the fatality of the defect obtained in the charge sheet which is incurable under section 387 or 388 of the Criminal Procedure Act (supra). For these reasons, I find that the proceedings before the trial court were a nullity. Therefore, for want of proceedings, I will not get into the merit of the appeal. In the event, I quash the proceedings of the Temeke District Court in the case upon which the appellant was convicted and sentenced. I accordingly quash the appellant's conviction and set aside his sentence. As the Respondent did not oppose the appeal, I decline to order a retrial against the appellant. Instead, I order his release from custody unless otherwise lawfully held. I order accordingly.