20171106 TZCA Dar es Salaam

:1 f\,1 ! ., f;,. i I ! I ' ',r.,, IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: LUANDA, J.A. MZIRAY, J.A., And MWAMBEGELE, J.A.) 1 CRIMINAL APPEAL CASE NO. 98 OF 2014 RICHARD SHIRIMA @GODFREY ...................................APPELLANT VERSUS THE REPUBLIC ..............................................................RESPONDENT {Appeal from the decision of the High Court of Tanzania .at Dar es Salaam) (Muruke, J.) Dated 2 nd day of January, 2014 in , HC. Criminal Appeal Case No. 85 of 2012 JUDGMENT OF THE COURT 31 st October, & 8 th November, 2017 MZIRAY, J.A . The Ap~ellant along with six other persons not before the Court, were arraigne~ in the Resident Magistrate Court of Dar es Salaam at Kinondoni of armed robbery c/s 287A of the Penal Code, Chapter 16, of the Revised Laws.: if"he facts before the trial court were that on the 3rd day of ! I I September, 2~09 at around 19:15 hours at Mbezi Magoe Road within i I Kinondoni District in Dar es salaam Region the appellant jointly and I together with i the other six persons not in Court, did steal one motor l 1 ,.· vehicle make Toyota Hilux Double Cabin with registration number SU 37970 the property of Nationai' Insurance Corporation and immediately before the time of such stealing did threaten one Stanslaus Mbuta by pointing a gun at him in order to obtain the said property. He denied the charge. As the offence was not bailable he was remanded in custody. While in 'remand custody, the appellant absconded. Efforts to apprehend hi:m were unsuccessful. However, as investigation was complete, the trial court invoked the provisions of section 226 of the Criminal Procedure Act (CPA) and proceeded with the trial in the absence of the appellant. Four prosecution witnesses testified and tendered three documentary exhibits. At the close of the prosecution case, the trial court acquitted the six other persons under section 230 of CPA for no case to answer but on the other hand, found that a prima facie case was established ag:ainst the appellant and he had a case to answer. The trial court then proceeded with the judgment and found the appellant guilty of armed robberYi, On 22/1~/2010 he was sentenced in absentia to serve thirty years imprisonment. i , After a long search, the appellant was subsequently 2 arrested and prought before the trial court on 10/12/2010 where he was informed the outcome of his case. On the same day he was sent to prison and started serving his 30 years jail term. Aggrieved, he purported to appeal to the High Court against "conviction// and sentence. The High Court (Muruke, J.) sitting at Dare salaam, dismissed his appeal, hence this second appeal. The appellant's memorandum of appeal to this Court, contains twelve I grounds of complaint. He appeared in person to argue the appeal. The respondent Republic was represented by Mr. Nassoro Katuga, learned Senior State A~orney. Both were ready for the hearing of the appeal. Howeveri, before they embarked on arguing the appeal, we invited Mr. Katuga to Jaddress us, on whether there was any conviction in the trial court's judgment which could be challenged both in the High Court and in I this Court. Ih answer to this pertinent issue, the learned Senior State Attorney, arg~ed, and correctly so, that the trial court did not convict the appellant of ciny offence. This, he further argued, was contrary to the requirements bf section 235(1) of the C.P.A. He accordingly asked us to invoke our rievisional powers under section 4(2) of the Appellate 3 Jurisdiction Act, Cap 141, to quash and set aside the judgment of the trial court, the imposed sentence of imprisonment, as well as the proceedings and the judgm~nt of the first appellate court and make the necessary orders. The 1appellant when called to comment, joined hands with the submission fro·m the respondent side. Undoubtedly the trial court did not convict the appellant. In its judgment the trial court said:- "Given the reason above/ the prosecution side pr0ved the case beyond reasonable doubt in respect of the Jth accused person one Richard Shlrima @Godfrey David @ Bakari @ Jabu @ Godu @ :Richi. I find him guilty for the offence of armed ro/Jbery c/s 287 A of the Penal Code Cap 16 {R.E 2002). // Having found :the appellant guilty, the trial court proceeded to sentence him in absenti1 to thirty years imprisonment. As correctly submitted by the learned state Attorney, a submission which we subscribe to, there was no compliance with the requirement under the provision of section 235(1) of the CPA, which1 reads:- 1 4 "The Courl having heard both the complaint and the accused person and their witnesses and the evidence, shall convict the accused and pass sentence upon or make an order against him according to law or shall acquit him or sh'al{ dismiss the charge under section 38 of the P8:na/ Code''(Emphasis added.) Under tihe aforementioned provision, it is clear that the mere 11 pronouncement in the judgment of the trial court that the accused is found guilty for the offence charged" does not amount to a conviction. This provision! requires that in the case of a conviction, the conviction must be entered before proceeding to sentence the accused person and the I record should Ireflect so. There is no valid judgment without a conviction having been ~ntered, as the same is one of the prerequisites of a valid I ' judgment in t~rms of section 312(2) of the CPA. See Courts decisions in I Shabani Iddf Jo/olo and Others vs Republic, Criminal Appeal No. 200 I of 2006, Amani Fungabikasi vs Republic Criminal Appeal No. 270 of 2008, Jonat~an Mhuluguani vs Republic, Criminal Appeal No. 15 of 2011, Frede~ick s/o Godson and Another vs Republic, Criminal Appeal No. 8'.8 of 2013, Names Muyombe Ntalanda vs Republic, 5 Criminal Appeal No. 403, John s/ o Charles vs Republic Criminal Appeal No. 190 of 2011, Elias Mpori vs Republic, Criminal Appeal No. 405 of 2013 (all unreported). In line with what was held in the afore-mentioned decisions, the failure on the: part of a trial court to convict the accused person before sentencing hirt, as in the instant case was not a mere irregularity curable i under section B88 (1) CPA, but fatal which renders the purported judgment and imposed isentence a nullity, and the same are incapable of being upheld by the High Court in the exercise of its appellate jurisdiction. Thus, urider the circumstances at hand, we think that it would be in the best interests of justice to remit the record back to the trial court for it to enter a conviction according to law and thereafter impose a sentence, I also according to law. In the exercise of our revisional powers under section 4(2) of the Appellate Jurisdiction Act, Chapter 141 of the Revised Laws, we quash I the entire proceedings of the High Court, as well as the ; sentence thatiwas imposed by the trial Court. In compliance with section ' 235(1) of the ~PA, we remit the record to the trial court for it to compose a I proper judgm~nt by entering a conviction and then proceed to sentence I I I the appellant ~ccordingly. ' 6 . In the me~ntime, the appellant should remain in custody pending the ! finalization and delivery of a properly constituted judgment of the trial court. It is furtHer ordered that the appellant's prison sentence should start to run from thJ date when he was arrested and brought before the trial I I . I court 1.e. on 10 1212010. 1I ' I I Upon co~viction, the appellant will be at liberty, if he finds it appropriate, to process his appeal in the manner provided under the law. Order accordingly. I DATED It OAR ES SALAAM this 6th day of November, 2017. B. M. LUANDA JUSTICE OF APPEAL R. E. S. MZIRAY JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy the original. I < A.H. M MI DEPUTY REGISTRAR COURT OF APPEAL 7