20170807 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LUANDA. 3.A.. MWARIJA, 3.A. And MKUYE. J.A.^ CONSOLIDATED CRIMINAL APPEALS NO. 434 & 435 OF 2015 1. KAGOMA LEONARD @ RABANI 2. ZIGUHEBA RICHARD @ RASHIDIJL........................................ APPELLANTS VERSUS THE REPUBLIC.................. ....................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Lukelelwa. 3.^ Dated the 23rd day of 3uly, 2013 in DC. Criminal Appeal No. 53 and 55 of 2012 JUDGMENT OF THE COURT 2nd & 7th August, 2017. LUANDA. JA.: The appellants KAGOMA LEONARD and ZIGUHEBA RICHARD @ RASHIDI (henceforth the 1st and 2nd appellants respectively) along with three others, were charged in the District Court of Kibondo with three counts of armed robbery. All the five were convicted as charged and each was sentenced to 30 years imprisonment for each count. The sentences were ordered to run concurrently. i. All the five were aggrieved by the finding of the trial District Court, they appealed to the High Court of Tanzania (Tabora Registry). The three with whom they appealed with the appellants were successful. The appellants were not. They separately instituted these appeals namely Criminal Appeal No. 434 and Criminal Appeal No. 435 which were consolidated. Each appellant filed his memorandum of appeal consisting of four grounds. Their main complaints are in the following areas. One, the evidence of visual identification was not watertight. Two, the doctrine of recent possession was improperly invoked. Three, the evidence of the prosecution witnesses as a whole was not credible and reliable. When the appeals came for hearing, Ms. Juliana Moka learned Senior State Attorney who appeared for the respondent/Republic informed the Court that she wished to point out two fatal irregularities which will dispose of the appeal. One, she said the charge sheet is incurably defective. In all three counts, the person on whom violence or threat were directed were not disclose at all. So, she went on to say, the particulars of the offence lacked essential ingredient of the offence of armed robbery as required by section 132 of the Criminal Procedure Act, Cap. 20 R.E. 2002 (the CPA). She referred us two cases of this Court Baraka Solongai vs. Republic, 2 Criminal Appeal No. 261 of 2015 and Athumani Juma vs. Republic, Criminal Appeal No. 37 of 2009 where the Court stated that for the charge of armed robbery to be proper, the name of the victim of robbery must always be disclosed. She went further and said even the evidence on record does not disclose the name of the persons to whom violence or threats were directed. It is her submission that the omission is not curable under section 388 of the CPA. She prayed to the Court to invoke its revisional powers as provided under section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2002 (the AJA), quash the proceedings and judgments of both lower courts and set aside the sentence. She did not press for retrial as the evidence is wanting. The appellants being laymen, not learned in law, had nothing to contribute. The second irregularity, which is an alternative to the first one, is that no conviction was entered by the trial District Court. Since the first point suffices to dispose of this matter, we find no need of discussing it. We turn to the first point. The charge sheet shows that in all three counts the names of watchmen on whom threats or violence were alleged to have been directed are not indicated at all. And to make matter worse no watchman had turned up to testify to have been attacked or threatened by the appellants. The particulars of the offences do not contain the essential ingredient of the offence of armed robbery namely the person to whom threat or violence was directed. Section 132 of the Act demands the particulars of the charge sheet to contain information so as to enable the accused to understand the nature of the offence. If the charge does not disclose essential element of an offence, the charge is incurably defective as the accused person will not be in a position to know the nature of the case he is going to face and also prepare for his defence. In Mussa Mwaikanda vs. Republic [2006] T.L.R. 387 the Court made the following observation "The principle has always been that an accused person must know the nature o f the case facing him. This can be achieved if a charge disclose the essential element o f an offence." The need to disclose the particulars of the offence was further emphasized in Isidori Patrice vs. Republic, Criminal Appeal No. 224 of 2007 (unreported) where this Court said:- "It is mandatory statutory requirement that every charge in a subordinate court shall contain not only a statement o f the specific offence with which the accused is charged but such particulars as may be necessary for giving reasonable information as to the nature o f the offence charged. It is now trite law that the particulars of the charge shall disclose the essential elements or ingredients o f 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-f 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 law." In Kashima Mnadi vs. Republic, Criminal Appeal No. 78 of 2011 (unreported) the appellant was charged with robbery. But the charge sheet did not indicate or show to whom violence or threat was directed. The Court said as follows:- "Strictly speaking for a charge o f any kind of robbery to be proper, it must contain or indicate actual personal violence or threat to a person on whom robbery was committed. Robbery as an offence, therefore, cannot be committed without the use o f actual violence or threat to the person targeted to be robbed. So, the particulars o f the offence o f robbery must not only contain the violence or threat but also the person on whom the actual violence or threat was directed." The charged sheet was declared incurably defective. In our case like in Kashima case supra it was not shown to whom violence or threat were directed. The charge sheet is on that ground incurably defective. We agree with Ms. Moka. In the exercise of our revisional powers as they are provided under section 4 (2) of the AJA, we quash both the lower courts finding and set aside the sentence. We order the appellants to be released from prison forthwith unless detained in connection with another matter. Order accordingly. DATED at TABORA this 4th day of August, 2017. B. M. LUANDA JUSTICE OF APPEAL A. G. MWARDA JUSTICE OF APPEAL R. K. MKUYE JUSTICE OF APPEAL I certify that this is a true copy of the original. 4 - 7-77 p. \a/7bam pikya SENIOR DEPUTY REGISTRAR COURT OF APPEAL 7