rashid mkonowatembo another vs republic 2016 tzca 308 14 april 2016

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: KIMARO. J.A.. MUGASHA. J.A.. And MZIRAY. J.A.^ CRIMINAL APPEAL NO. 74 OF 2015 1. RASHID MKONOWATEMBOI 2. ROMWARD JEUSHA J ............................. APPELLANTS VERSUS THE REPUBLIC.......................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Sumbawanga) (Mwambeaele. J.A.l dated the 30th day of April, 2014 in Criminal Appeal No. 51 of 2012 JUDGMENT OF THE COURT 12th & 15th April, 2016 MZIRAY. J. A.: The appellants were jointly charged in the District Court of Sumbawanga with two counts, Armed Robbery c/s 287A and Breaking into a building and committing an offence c/s 296 (a) both of the Penal Code, Cap 16 R.E. 2002. According to the charge sheet filed in the District Court, the particulars of the Offences read as follows; "Romward s/o Jeusha and Rashid s/o Mkonowatembo are charged on l4 h day o f January, 2012 at Kianda Village (AAR SLEEF BAM CAMP) within Sumbawanga District in Rukwa Region did steal cash money Tshs. 120,000/= the property o f one Casto s/o A/phonce and immediately before and after such stealing did use a piece o f iron bar and matchete in order to obtain and retain the said property. And that, Romwan s/o Jeusha and Rashid s/o Mkonowatembo are charged on l4 h day of January, 2012 at Kianda Village (AAR SLEEF BAM CAMP) within Sumbawanga District in Rukwa Region did break a container No. WLU 2055137 and steal one THEODOTILE MACHINE make LEICHA-TPS NO. 1200 valued at Tshs. 85,000,000/= the property o f AAR SLEEF BAM COMPANY." After a full trial, the appellants were found guilty and convicted as charged. They were each sentenced to serve ten (10) years term in jail for the first count and thirty (30) years term for the second count. The sentences were ordered to run concurrently. The appellants were aggrieved by the decision of the District Court and thus appealed to the High Court of Tanzania at Sumbawanga. They did not, however, file a joint appeal to the High Court. Each one preferred a separate appeal. Rashid Mkonowatembo who was the second accused preferred an appeal which was registered as Criminal Appeal No. 51 of 2012 while Romward Jeusha who was the first accused filed Criminal Appeal No. 52 of 2012. Both appeals before the High Court were heard and entertained jointly by Mwambegele, J. who in fact, upheld the lower Court decision. Still aggrieved, the two appellants filed this second appeal. In this appeal, the appellants fended for themselves whereas Ms. Juliana William, learned State Attorney represented the respondent Republic. In this appeal each appellant lodged a separate memorandum of appeal, but in essence the common grounds of complaints centred on the following grounds: 1. The learned first appellate judge erred in law and fact in upholding the decision o f the trial District Court o f Sumbawanga which is based on contradictory evidence. 2. The first appellate court erred in believing and acted upon exhibits wrongly admitted in evidence. 3. The case was not proved beyond reasonable doubt. We propose to begin with brief account of evidence which led to the conviction of the appellant. Going by the record, the evidence in support of the charge against the appellants came from Meka John (PW1), Castor Alphonce (PW2), No. G. 2684 Detective corporal Seif (PW3), No. G. 8197 Police Constable Shadrack (PW4) and F. 1854 Detective Seargent Alfred (PW 5). Their evidence can be placed in this outline. On 13/1/2012, PW1, a Chief Security Officer of AAR SLEF-BAM INTERNATIONAL COMPANY got information from his informer that there were some robbers who were planning to invade and rob the camp on the following night. Having received that information, he reported the same to the OCD who dispatched three police officers to lay a trap. In the midnight, as they had been previously tipped, a group of robbers came and cut the fence whereupon they gained access to the camp. They tied PW2 who was on duty as watchman with a rope. They also cut his ear with a panga and robbed him Tshs. 120,000/=. The robbers however, proceeded to break one of the containers in the camp and seized one Theodolite Machine make LAICA-TPS NO. 1200 valued at Tshs. 85,000,000/=. By the assistance of the police officers, PW3, PW4 and PW5 managed to ambush the assailants and arrested the two of them, the herein appellants in this case. After arresting the appellants, they searched and found them in possession of matchetes, the stolen Thedolite machine and the robbed cash Tshs. 120,000/=. In the course of trial the seized items were tendered in court and admitted as exhibits. In their defence, the appellant denied to have committed the offences. They alleged that they were arrested on 13/1/2012 on their way coming from Kaengesa Village to see their sick sister. They completely denied involvement. Briefly that is the gist of their defence. Before examining the merits or otherwise of this appeal we have find it useful to direct our mind and address on the separate appeals by the appellants filed in the first appellate Court. As we have pointed out earlier, the appellants did not prefer joint appeals to the High Court. Each one presented separate appeal. The record shows that the appeal by Rashid Mkonowatembo was registered as Criminal Appeal No. 51 of 2012 while, that of Romwan Jeusha was registered as Criminal Appeal No. 52 of 2012. We noted while hearing this appeal that the High Court (Mwambegele, J) entertained both appeals as one and the same without making an order of consolidation. We think that was not a correct approach. In our view, it was mandatory to make an order of consolidation before entertaining the appeal. However the non consolidation did not prejudice any of the parties hence there was no injustice occasioned. We now turn to examine the merit or otherwise of the appeal. In arguing the appeal the appellants felt safer to elaborate their grounds of appeal after hearing the response of the learned State Attorney for the Republic. Ms. Juliana William, learned State Attorney supported the conviction of the two appellants but had reservations on the propriety of the imposed sentences. The learned State Attorney stated that the charge sheet at page one of the record shows that the appellants were charged with two counts one being that of Armed robbery c/s 287A and the other being Breaking into a building and committing an offence c/s 296(a) and (b), both of the penal Code, Cap. 16 R.E 2002. The learned State Attorney submitted that it was not proper for the trial court to impose a sentence of 10 years for the offence of armed robbery under section 287A while the proper punishment for that offence is 30 years in jail. As to the second count, the learned State Attorney pointed out that, it was also wrong for the court to impose a sentence of 30 years to the appellants for the offence of breaking into a building since the appropriate sentence is 10 years imprisonment. The learned State Attorney stressed that the sentences imposed against the appellants were illegal. As such she urged this Court in terms of section 4(2)(a) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002 to interfere and give the appropriate sentence. Submitting on the first ground of appeal, the learned State Attorney contended that according to the record available there is no contradiction in the evidence adduced by the prosecution as alleged by the appellants. The learned State Attorney argued that the witnesses were consistent and all asserted that the appellants were apprehended at the scene and that, upon search, they were found in possession of the stolen properties. She further argued that if at all, there is contradiction in evidence, the same is minor to vitiate the case for Republic. In that, the learned State Attorney referred this Court to the cases of Osca Josiah v. R, Criminal Appeal No. 441 of 2015 (unreported) and that of Mohamed Metula v. R, [1995] TLR 3 which we subscribe. The only contradiction in evidence complained of, is the date the incident occurred. It is complained that while PW1 was informed that the incident was to occur on 14/1/2012, PW5 got report of the incident on 13/1/2012 and that, while PW2 complained to have been robbed Tshs. 200,000/= PW5 stated that PW2 was robbed Tshs. 120,000/=. With much respect, the contradiction did not water down the evidence of the commission of the offence. However, since the appellants were apprehended at the scene and the fact that they were found in possession of the stolen items, we have no doubt in our mind that the appellants committed the offences. For that reason therefore, this ground of appeal lacks merit. As to the second ground, the learned State Attorney admitted and correctly in our view that the Court gave weight to the prosecution exhibits improperly received. It is clear from the court case record that all of the prosecution exhibits tendered in court were admitted without according the accused persons an opportunity to comment on the exhibits. In the case of Jumapili Msyete v. R, Criminal Appeal No. 110 of 2014 (unreported) cited by the learned State Attorney this Court stated that failure to afford opportunity to an accused to comment on the exhibit is unlawful and infringes the rights of the accused. Since the exhibits in the case at hand were admitted in court without affording the appellants an opportunity to comment on them, we, in the circumstance, agree with the learned State Attorney that all the prosecution exhibits were unlawfully admitted ,in which case then, the same should be expunged from the record as we hereby do. It is however, a submission by the learned State Attorney on the third ground of appeal and correctly in our view that the remaining evidence on record is sufficient to sustain conviction of the appellants. 8 There is evidence on record that the witnesses after having set a trap, the appellants with their fellows invaded the camp and made away with the items which, later on, were found in their possession. With that evidence, we have no doubt that the prosecution proved the case beyond reasonable doubt. For all of the above reasons, the grounds of appeal cannot succeed. As to the issue of sentences, we are in total agreement with the learned State Attorney. The appellants on the 1st count were charged to have committed the offence of armed robbery contrary to the provision of section 287 A of the Penal Code. The wording of section 287A reads; "Any person who steals anything, and at or immediately after the time of stealing is armed with any dangerous or offensive weapon or instrument, or is 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 person, commits an offence termed armed robbery and on conviction is liable to imprisonment for a minimum term of thirty years without corporal punishment (emphasis added). Accordingly section 296 (a) and (b) of the Penal Code, upon which the appellants were charged with reads; "Any person who- (a) breaks and enters a school house, shop, warehouse, store, workshop, garage, office or counting house, or a building which is adjacent to a dwelling house and occupied with it but is not part o f it or any building used as a place of worship and commits an offence therein; (b) having committed an offence in any building referred to in paragraph (a) breaks out o f building, is guilty o f an offence and is liable to imprisonment for ten years" Basing on the preceding provisions, the appellants ought to have been sentenced to 30 years imprisonment for the first count and 10 years for the second count. In our considered view the sentence of 30 years imprisonment for the offence of armed robbery will be the most appropriate as it is the minimum prescribed by the law but for the offence of breaking into a building and committing an offence, we think that a jail term of seven years will sufficiently meet the justice of the case. 10 That said, in terms of section 4(2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002 we hereby set aside the sentences imposed by the trial court and order that the appellants serve thirty (30) years imprisonment term for the first count and seven (7) years term for the second count. The sentences shall run concurrently from the date the trial court judgment was delivered. DATED at MBEYA this 14th day of April, 2016. N. P. KIMARO JUSTICE OF APPEAL S. E. A. MUGASHA JUSTICE OF APPEAL R. E. S. MZIRAY JUSTICE OF APPEAL I certify that this is a true copy of the original. ii