baraka solongai vs republic 2016 tzca 806 24 may 2016

IN THE COURT OF APPEAL OF TANZANIA AT PAR-ES-SALAAM fCQRAM: MJASIRI, 3.A, MASSATI, 3.A. And MUGASHA, J.A.^ CRIMINAL APPEAL NO. 261 OF 2015 BARAKA SOLONGAI................................................................ APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar-es-salaam) (MumsLJL) dated the 25th day of March, 2013 in Criminal Appeal No. 94 of 2012 JUDGMENT OF THE COURT 17th & 24:h May, 2016 MUGASHA, 3.A.: In the District Court of Morogoro, the appellant was charged with armed robbery contrary to section 287 A of the Penal Code [cap 16 r e .2002], It was alleged that, on 12th November, 2009 at about 12.00 p.m. at Chama Nyani village, Wami Mbiki area in Mvomero District in the region of Morogoro the appellant did steal 60 heads of cattle valued at Tshs. 30,000,000/= the property of s la a lo h a y . Immediately before or after such stealing the appellant threatened the unnamed person i with a bush knife and a matchete in order to obtain and retain the said property. The appellant denied the charge. The prosecution paraded five witnesses and one documentary exhibit.P.E.l (PF3). A brief account of the evidence at the trial is as follows: On 12th November, 2009, PW1 and his two sons PW2 and PW3 were grazing cattle at Chama Nyani village. At around mid-day, they were attacked by the appellant who was accompanied by masai youths. The assailants were all armed with sticks and matchetes. They assaulted PW1 and his sons, tied them down and managed to steal 60 heads of cattle and disappeared to the unknown place. PW1 sustained cut wounds injuries on the left leg and left hand and he reported the matter at Mtibwa Police Station. PW1, PW2 and PW3 all testified that the appellant was arrested with the stolen cattle. However, the testimonial account of PW1 is to the effect that he did not recover the stolen cattle. According to the evidence of PW4, he went at Chamanyani Wami Mbiki to trace the stolen cattle following a phone call from one m a rish o san g a about the stolen cattle. They went up to Dakawa Wami but they did not locate the cattle foot prints and they opted to return at Parakuyu. On the way they found herds of cattle in the bush and reported the matter to the Police at Kimamba Police Station. According to PW5 E 8945 g re y so n , the investigator he acted on the alert by assigning the matter to PC r o b e r t who arrested the appellant with twenty six (26) stolen heads of cattle. PW5 further testified that the complainant managed to identify the stolen heads of cattle after he was summoned at Kimamba Police Station. The appellant denied the offence and raised the defence of alibi that on 12/11/2009 he was at Mikese grazing cattle and he has never been at Mvomero. He also told the trial court that he was arrested on 20/11/2009 at Parakuyu where he had gone to visit his sick mother who later died. On the whole of the evidence, the trial magistrate was satisfied that the appellant was properly identified at the scene of crime and upon his arrest was found in possession of the stolen 26 heads of cattle which were identified by PW1. Upon being found guilty, the appellant was not convicted but sentenced to imprisonment term of thirty (30) years and in addition he was ordered to pay PW1 a sum of Tshs. 17,000,000/= being compensation for unrecovered heads of cattle whose number is not stated. Aggrieved, the appellant unsuccessfully appealed to the High Court which dismissed his appeal after being satisfied that the appellant who though not properly identified at the scene of crime, upon arrest he was found in possession of the stolen heads of cattle. Further aggrieved, the appellant has preferred a second appeal. In the Memorandum of Appeal the appellant has raised ten grounds of appeal which may conveniently be condensed into two major ones namely: One, that the two courts below erred in law by convicting the appellant relying on the charge of armed robbery which did not disclose persons or person against whom the violence or threat was directed; Two, the charge was not proved against the appellant beyond reasonable doubt. At the hearing of the appeal, the appellant appeared in person and Mr. Ramadhani Kalinga learned State Attorney represented the respondent Republic. The appellant preferred initially to hear the submission of the learned State Attorney. In his brief submission, the learned State Attorney supported the appeal conceding that, the charge is defective for not disclosing the person who was threatened in the alleged robbery where sixty heads of cattle were stolen. He argued that the defect is incurable and the trial was vitiated. To support his argument he cited the case of b a lt a z a r g u s t a f a n d a n o t h e r vs th e re p u b lic , c r im in a l appeal no 266 o f 2014. As to the remedial measures, the learned State Attorney did not press for a retrial because he considered the prosecution evidence on record not sufficient. He urged the Court to allow the appeal quash the conviction and set aside the sentence. We propose to first tackle the issue relating to the legality of the charge sheet upon which the appellant was tried. The provision under which the appellant was charged is section 287 A of the Penal Code which reads as follows: " 287A. Any person who steals anything, and at or immediately after the time o f stealing is armed with any dangerous or offensive weapon or instrument; o ris in company o f one or more persons, and at or immediately before or immediately after the time o f the stealing uses or threatens to use violence to any personcom m its an offence termed "armed robbery"and on conviction is liable to imprisonment for a minimum term o f thirty years with or without corporal punishment." However, at page 2 of the record of appeal the charge sheet reads as follows: PARTICULARS OF THE OFFENCE: That BARAKA S/0 SOLONGAI Charged on 12th November, 2009 at about 18.00hrs at Chama Nyani Wami Mbiki area within Mvomero District in Morogoro Region did steal sixty head o f cows all total valued Tshs. 30,000,000/= the property o f SLAA S/0 LOHA Y. Immediately before and immediately after such steal did threat with the bush knife and stick in order to obtain and retain the said property, the property o f SLAA S/0 LOHAY. Having carefully scrutinised the charge in relation with section 287 A of the Penal Code, we are of a settled view that the charge sheet is incurably defective for not disclosing the person who was threatened thus lacking an essential ingredient of the offence of robbery. In this regard, the charge sheet does hot meet the mandatory statutory requirement as stipulated under section 132 of the Criminal Procedure Act [cap 20 re: 2002] which provides: "Every charge or information shall contain, and shall be sufficient if it contains, a statement o f specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature o f the offence charged". The essence of sufficiency of the required information in the charge sheet is to enable the accused person to be aware of the charge he is facing which can only be achieved if a charge discloses the essential elements of an offence as underscored by the Court in the case of MUSSA MWAIKUNDA VS REPUBLIC [2006] TLR 387. In KASHIMA MNADI VS REPUBLIC, CRIMINAL APPEAL NO 78 OF 2 0 ii(Unreported), the Court said: "Strictly speaking for any charge o f any kind o f robbery to be proper, it must contain or indicate actualpersonal violence or threat to a person on whom robbery was committed. Robbery as an offence, therefore, cannot be committed without use o f actual violence or threat to a person targeted to be robbed. So the particulars o f the offence must not only contain the violence or threat but also the person on whom the actual violence or threat was directed" Apparently, it was in the course of the trial when the evidence paraded indicated that the actual violence and threat was targeted at PW1 who sustained cut wounds and was robbed of his cattle. However, the charge was not amended and the trial continued which was already late in our view because the threatened person ought to have been explicitly mentioned in the charge sheet so as to enable the appellant to clearly understand the nature of the case facing him. We say so because it is the charge sheet which lays the foundation of the trial. In this regard we wish to repeat what we said in i s i d o r i p a tr ic e vs re p u b lic , c r im in a l appeal no 224 o f 2007 (Unreported) that: "It is a 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 committed the actus reus o f the offence with the necessary mens rea. Accordingly the particulars, in order to give the accused a fair trial in enabling him to prepare his defence, must allege the essential facts o f the offence and any intent specifically required by the law". In the case at hand, since there were no amendment the appellant was tried on the basis of a defective charge. So, he was unfairly tried which occasioned a miscarriage of justice as the appellant was unduly prejudiced. In the premises, the purported trial is a nullity and we hereby set aside the sentence of thirty years and the order to pay as sum of Tshs. 17,000,000/= to PW1. Consequently, as no appeal can stem from a nullity we hereby nullify the entire proceedings and judgement of the High Court. We wish to observe further that, the appellant was sentenced without being convicted which is contrary to section 235(1) of the CRIMINAL Procedure Act [CAP 20 RE.2002] which provides: "The court, having heard both the complainant and the accused person and their witnesses and the evidence, shaii convict the accused and pass sentence upon or make an order against him according to law or shall acquit him or shall dismiss the charge under section 38 o f the Penal Code. " In the case at hand, failure to convict the appellant was also another fundamental irregularity which would have constituted a ground to set aside the decision of the High Court had it not been our finding on the effect of the defective charge and direct the record of trial to be remitted to the trial court so that it enters conviction. (See JONATHAN MLUGUANI VS REPUBLIC, CRIMINAL APPEAL NO 15 OF 2011, SHABANI IDDI JOLOLO AND 3 OTHERS VS REPUBLIC, CRIMINAL APPEAL NO. 200 OF 2006 and AMANI FUNGABIKASI VS REPUBLIC, CRIMINAL APPEAL NO. 270 OF 2008(AII unreported). But having determined that the appellant was not fairly tried on account of an incurably defective charge, we now have to determine if a retrial is worthy. This takes us to scrutinising the evidence on record. It is the testimonial account of PW4 that after they came across a herd of cattle in the bush they alerted the Police at Kimamba Station. At page 20 of the record PW5 E 8945 DC GREYSON the investigator acted on the alert as follows: " From that information one PC Robert went there and arrested the accused person with the stolen heads o f cattle about 26. The complainant was summoned, and an inventory was prepared. The complainant Slaa Lohay duly identified his herds o f cattle" However, the evidence of the victim is not compatible with that of PW4 and PW5 in the following aspects: One, Neither PW1 nor his sons testified to have been summoned at Kimamba Police Station to identify the stolen cattle; Two, at page 13 of the record, apart from PW1 testifying to have sustained injuries and lost sixty heads of cattle, at page 14 PW1 stated that, he has never recovered the lost heads of 10 cattle. These contradictions cast a doubt on the prosecution case in that it is not certain if the 26 heads of cattle were recovered after being found in possession of the appellant and were returned to PW1. This doubt would have probably be cleared by the arresting officer DC ROBERT who was not paraded as a prosecution witness. In the circumstances of the case, DC ROBERT was a material witness who would have clarified to the trial court if the appellant was actually found in possession of the stolen cattle. The prosecution did not explain the reason for not parading the arresting police officer. As such the court is entitled to draw an inference adverse to the prosecution case as said by the Court in the case of AZIZIABDALAH v r e p u b l i c 1 9 9 1 TLR 71. As earlier intimated, despite the finding by the first appellate court that the appellant was not positively identified at the scene of crime however, in its judgment at page 52 of the record it was satisfied that, upon arrest the appellant was found in possession of part of the stolen cattle which was identified by PW1. With due respect, the finding by the first appellate court is not backed by the evidence on record because PW1 clearly stated that he has never recovered any of the lost 60 heads of cattle. * ii In the light of what we have endeavoured to explain, it is highly doubtful if the appellant was arrested and found in possession of part of the stolen heads of cattle. As such, the doctrine of recent possession was wrongly invoked to convict the appellant. In view of the aforesaid, we entirely agree with the learned state attorney on record that there is no sufficient prosecution evidence and we decline to order a retrial. Having set aside the sentence and the order to pay compensation, it is further ordered that the appellant should be released from prison forthwith unless detained for some other lawful cause. DATED at DAR-ES-SALAAM this 19th day of May, 2016. S. MJASIRI JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL S.E.A. MUGASHA JUSTICE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR CO URT OF APPEAL