20160730 TZCA Iringa1

IN THE COURT OF APPEAL OF TANZANIA · AT IRINGA (CORAM: MJASIRI. J.A., JUMA. J.A., And MUGASHA. J.A.) CRIMINAL APPEAL NO. 222 OF 2014 FRANCIS SIMON NJAVIKE JUMA ......................................APPELLANT VERSUS THE REPUBLIC •••••••••••••••••••••••••••••••••••••••••••••••••.••••••••••• RESPONDENT (Appeal from the decision of theJiigh Court of Tanzania at Iringa) (Shangali. J.) Dated the 6 th day of June, 2014 in DC Criminal Appeal No. 40 of 2012 JUDGMENT OF THE COURT 2ih July, & '.~~1 st August, 2016 MUGASHA. J.A.: In the District Court of Njombe, the appellant and VENANCE S/O BABU MBARUKU (MUBA) who was the co-:accused were arraigned as. here under:- :. ... ·:, -· , "1 st Count STATEMENT OF OFFENCE: Conspiracy to commit offence c/s 384 of the Penal code Cap 16 R.£ 2002) 1 PARTICULARS OF OFFENCE: That FRANCE S/O SAMSON NJA VIKE (JUMA) and VENANCE S/O BABU MBARUKU- MUBA are jointly and together charged on unknown date; time and place did conspire to commit offence to wit "Armed Robbery. STATEMENT OF OFFENCE: Being in unlawful possession or firearm c/s 4 (1) (a) and 34 or the Arms and Ammunition Act 1991 R.£ 2002. PARTICULARS OF OFFENCE: That FRANCE S/O NJA VIKE JUMA and VENANCE S/O BABU MBARUKU MUBA are jointly and together charged on the 24h day of March/ 2012 at about 9:15 hrs at SIDO area within Njombe District in Iringa Region were found in possession of one pistol to wit BROWNING CZ 83 CAL 7.65 with Reg. No. 049215 made in Czechoslovakia without a permit or licence. 2'd COUNTFOR BOTH ACCUSED PERSONS STATEMENT OF OFFENCE: Being in unlawful possession of ammunition c/s 4 (1) (a) and 34 of the Arms and Ammunition Act 1991 R.£ 2002. PARTICULARS OF THE OFFENCE: That FRANCE S/O SAMSON NJA VIKE (JUMA) and VENANCE S/O BABU MBARUKU -MUBA are jointly and together on the 24h day of March/ 2012 at about 09:15 hrs at SIDO within Njombe town in Njombe District were found in possession of six round of ammunition without a licence or permit. " 2 They all denied the charges. Subsequently, the prosecution paraded eight (8) witnesses and four (4) documentary exhibits. A brief account of the prosecution case is as follows:- EMMANUEL METHOD (PW2) was employed as a driver at the offices of one MTEWELE. On 21/3/2012, he received a phone call from MUBA who requested to meet him and they agreed to meet on the following day. MUBA informed PW2 that, he had two friends and one had a pistol and they were seeking PW2's assistance so that they could steal money where PW2 was employed. PW2 promised to assist them and they agreed to meet on 23/3/2012 but he informed his boss about the illicit plan and the matter was reported to the Police. On 23/3/2012 PW2 met MUBA but the plan was postponed because the appellant and another person had not yet arrived at Njombe. On 24/3/2012 MUBA notified PW2 on the arrival of the appellant and another person. PW2 was tasked to find a motor vehicle to be used in ferrying the money after the stealing. Again, PW2 relayed information to the Police and he drove to pick the appellant who was residing at Monica Hotel. Having picked the appellant, PW2 saw him busy arranging his pistol. After picking MUBA, they drove heading to MTEWELE'S offices. Before 3 reaching there, PW2 showed them how to access the particular office but he declined to use the office vehicle in executing the illicit plan. MUBA opted to hire a motor cycle, picked the appellant and proceeded to MTEWELE'S offices. On reaching there, they saw a police van parked outside and attempted to escape but they were arrested. Upon being searched, the appellant was found with the pistol and six rounds of ammunition. The appellant and MUBA all denied each and every detail of the prosecution account. After a full trial, they were convicted and sentenced to imprisonment for: three (3) years in respect of the 1st count, seven (7) years for the 2nd Count and seven (7) years for the 3rd count. The sentences were to run concurrently. Aggrieved, they appealed to the High Court whereby MUBA was cleared of the 2nd and 3rd counts but his conviction was upheld on the 1st count of conspiracy. The appellant's appeal was dismissed in its entirety. MUBA did not prefer an appeal but the appellant has appealed to the Court. 4 In the memorandum of appeal, the appellant raised eight grounds of appeal which are conveniently condensed into one main ground namely: That, the first appellate Court erred to dismiss the appeal relying on the prosecution evidence which did not prove the charges beyond .reasonable doubt. The appellant was unrepresented and Mr. Alex Mwita, learned State Attorney represented the respondent Republic. When the appeal was called on for hearing, the appellant opted to initially hear the submission of the learned State Attorney. The learned · State Attorney resisted the appeal. He pointed out that, the prosecution proved all the counts beyond reasonable doubt against the appellant. In addition, he addressed the Court on the propriety of the charge. He submitted that, the appellant was arraigned on 29/3/2012 for the 2nd and 3rd counts under section 34 of the Arms and Ammunition Act [CAP 223 RE, 20021. He pointed out that, since subsection (2) was amended by Act No. 17 of 2010, and penalty changed, the respective amending Act ought to have been reflected in the charge sheet. However he argued that, the 5 omission does not render the charge defective because section 34 creates the offence and the appellant was aware of the offence and punishment when the charge was read over to him. Besides, he submitted that since punishment is the domain of the Court, then the trial was not in any way vitiated. On the other hand, the appellant maintained that he did not commit the offence. He asked the Court to set him free. We have deemed it imperative to consider the propriety of the charge sheet because it is the basis which lays a foundation of the trial. This is so because the principle has always been that, an accused must know the nature of the case he is facing before making any defence. As such, the charge sheet must contain sufficient particulars. What constitutes a proper Charge was discussed in CHARLES S/O MAKAPI vs REPUBLIC; Criminal Appeal No. 85 of 2015, where the Court said, section 135 of the Criminal Procedure Act. [CAP 20 R.E. 20021, imposes mandatory requirements that a charge sheet should describe the offence and make reference to the section and law creating the offence. 6 Initially, we reproduced the charge sheet to establish that, the appellant and another person were arraigned under sections 4 (1) (a) and 34 which are non-existent provisions of the law. When the appellant and another person were arraigned, section 34 had three subsections under the Arms and Ammunition Act which was amended by Acts No. 2 of 2007 and 17 of 2010. The amending Acts had the effect of changing the punishment to the defaulters and in terms of Act No. 17 of 2010 section 34 (2) now reads as follows: " Any person who commits an offence under this Act shall upon conviction be liable, except where any other penalty is provided, to imprisonment for a term not exceeding fifteen years or to both a fine not exceeding thirty million or to both'~ Neither did the amendments add clause (a) under section 4 (1) nor removed the two subsections in section 34. In this regard, the offence of unlawful possession of fire arm and ammunition is created under section 4 (1) read together with sections 34 (1) and (2) of the Arms and Ammunition Act (supra). Therefore, the charge ought to have been framed according to 7 the provisions of section 135 (a) (ii) of the Criminal Procedure Act Cap. 20 R.E. 2002 which states:- "the statement of offence shall describe the offence shortly in ordinary language avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence and, if the offence charged is one created by enactment, shall contain a reference to the section of the enactment· creating the offence;" [Emphasis supplied]. The consequences of a trial upon a charge which is not drawn in accordance with section 135 (a) (ii) were addressed in ABDALLA ALLY vs REPUBLIC, Criminal Appeal No. 253 of 2013 (unreported). The Court () stated:- 11 ••• being found guilty on a defective charge based on wrong and/ or non- existent provisions of the law, it cannot be said that the appellant was fairly tried in the courts below,✓ • Furthermore the Court decided:- 8 "The wrong and on non-citation of the appropriate provisions of the Penal Code under which the charge was preferred, left the appellant unaware that he was facing a serious ,, charge.... In the trial under scrutiny, it is clear that the appellant was charged, tried and convicted on non-existent provisions of the law which cannot be said to create any offence. In the absence of sufficient particulars constituting· offences of unlawfully possession of fire arm and ammunition, it is clear that the appellant was not made to understand the nature of charge facing him in respect of 2nd and 3rd counts. As such, he could not prepare an informed defence. The learned State Attorney submitted that, not citing Act 17/2010 which changed the punishment is not fatal because, penalising the offender is the domain of the Court. In the first place, we acknowledge that it is the domain of court to impose punishment. However, we do not agree with the learned State 9 Attorney, because, since the charge is based on non-existent provisions of the law, then the present charge sheet did not lay a proper foundation of the trial as the appellant was not sufficiently made aware of charges facing him and the penalty he faces in case of conviction. As earlier stated, the charge was not drawn in terms of the mandatory requirements of section 135 (a) (11) of the CPA which resulted into unfair trial on account of an incurably defective charge in respect of the 2nd and 3rd counts. On the way forward, we are aware that, there was no defect in the charge of conspiracy as the appellant was arraigned under section 384. However, since the three counts are interconnected and considering that the trial was same, the appellant was prejudiced because the trial was not fair on account of the defective charge sheet. On account of the aforesaid, the trial was nullity. We therefore invoke the provisions of section 4 (2) of the Appellate jurisdiction Act [CAP 141 R.E. 2002]. We hereby nullify the entire proceedings and judgment of the trial and the High Court in Criminal Appeal No 40 of 2012 as it stemmed from a 10 ... . ,, nullity. We further quash the conviction and set aside the sentence meted out against the appellant. We order, the expedited retrial which shall be based on a proper charge. In the event of conviction following a fresh trial, the period which the appellant has served in prison should be considered during sentencing. In the meantime the appellant shall remain in custody pending trial. DATED at IRINGA this 30th day of July, 2016. S. MJASIRI JUSTICE OF APPEAL I. H. JUMA JUSTICE OF APPEAL S. MUGASHA JUSTICE OF APPEAL 11