20170731 TZHC Dar es Salaam1

, ',\,· IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISRICT REGISTRY) AT DAR ES SALAAM. CRIMINAL APPEAL NO. 379 OF 2016 (Originating from Criminal Case No. 24 of 2016 of Mafia District Court) ISSA HASSAN KUGEMUA ............ -.. 1 sT APPELLANT VERSUS THE REPUBLIC ............................... RESPONDENT Date of Last Order: 3/7/2017. Date ofJudgment: 31/7/2017. JUDGMENT I. ARUFANI, J. The appellants, Issa Hassan Kugemua was charged in the District Court of Mafia with an offence of Robbery with violence contrary to section 285 and 286 of the Penal Code Cap 16 R.E 2002. The particulars of the offence as stated in the charge sheet are to the effect that, on 16th day of April, 2016 at about 06:30 hours at Kigamboni within Mafia District in Coast Region the 1 appellant did steal a cell phone make VINKO valued at Tshs. 50,000/=, the property of Mariam D/0 Athumani and immediately before the time of stealing did break the door and during the time of stealing did use actual violence in order to overcome resistance. The background of this case as can be found in the proceeding of the trial court is to the effect that, on the above mentioned date and time of event whilst Mariam Athumani, (PWl) is still asleep in their house the door of their room was pushed by force and she awaken suddenly. She told the trial court that, after awaken she saw the appellant entering into her room and went straight to her bed and laid on top of her. She said the appellant held her neck by one hand and used another hand to search on her bed. PW1 said to have resisted and while calling for help the appellant jumped from the bed and started running. PW1 said to have chased the appellant and managed to hold his jacket. While trying to pull him to the room the appellant managed to get away from her and ran while leaving behind his sandals. Though the appellant denied the sandal do not belong to him but were admitted in the case as an exhibit PL She said she knew the 2 appellant even before the date of event as he was their neighbour. She also said that, when the appellant stormed into her room her husband was not around. She continued to testify that, when the people came for help the appellant had already fled away and he took her mobile phone make VINKO which was under her pillow. She said she had enough time to identify the appellant as she fought with him while inside the room and she followed him outside the room while holding his jacket and it was already morning. When cross examined by accused person she said her room is located outside· and the curtain of her room was open hence the room had enough light as it was already morning. She also said when her sister was responding to her call she saw the appellant while running. Stamila Athumani, (PW2) told the trial court is the sister of PWl and said on the date of event while making her clothes she heard a cry of help from PWl and when she asked what was happening she said the appellant was stealing her mobile phone. After rushing to the shout she found the appellant getting out of the room and PWl had hold his jacket. She said the appellant managed to get away from PWl and ran for a while and there 3 after started walking without fear. She said she know the appellant as is their heighbour and on the date of event he had wear a white short trouser and a jacket. She said thereafter they went to report the event at the police station. Shaha Mdindi, (PW3) said PW1 is his wife and on the date and time of event he was not at home as _he had already gone to his activities. Later on he received a phone call from his in law who told him the appellant had gone to his room, broke the door and stole the mobile phone of PW1. He said as he knew the appellant he would have looked for him and at about 12:00 hours he found the appellant at Kichanga Chui area. PW3 said when he asked the appellant about the mobile phone of PW1 he told him to wait and he would have called him later on and said he would have return the mobile phone at the evening. PW3 said that, after the appellant failed to return the mobile phone he called him again and the appellant told him the police had already been informed about the event and required PW3 to stop the policemen to go to arrest him so that he can return the mobile phone. When the appellant cross examined him he said he has no grudge with the appellant. 4 G. 4582 DC Anthony (PW4) said he was assigned the file of the case of the appellant and he interrogated the witnesses who told him they managed to identify the appellant as the person committed the crime. He said through the assistance of PW3 they managed to arrest the appellant at Kichanga Chui area but when he interrogated him he denied to have committed the offence. In his defence the appellant told the trial court he was followed at his home by policemen who arrested him and took him to the police station. He said the policeman interrogated him and went to search his room but nothing was found therein. He said his sandals were not found at the place of event and tendered his sandals to the trial court and the same were admitted in the case as an exhibit D1. He testified that, the police suspected him because of his previous conducts as he was in prison and he had been release·d few -days before being arrested. When cross examined by Public Prosecutor he said he has no grudge with PWl but he was not in good terms with PW3. After hearing the evidence from both side the trial court found the prosecution side had managed to prove their case to the standard required by law and convicted the appellant with on the offence of robbery with violence and sentenced him to serve 5 fifteen years imprisonment. The appellant was aggrieved by the decision of the trial court and filed in this court his petition of appeal containing five grounds of appeal. At the hearing of the appeal the appellant appeared in person and the Republic was represented by Miss Agness Mtaki, learned State Attorney who supported the appeal. The appellant argued his grounds of appeal generally and told the court that, he was dissatisfied by the decision of the trial court because he was convicted while PWl said at the police station her mobile phone was stolen by Issa Kiziwi and he is not Issa Kiziwi. He said the policemen searched his house but nothing was found therein and said the prosecution side called members of the same family and a policeman and no an independent witness was called to testify in court. He argued further that, the mobile phone alleged to have been stolen was not tendered in court as an exhibit and said he had sandals which were similar to the one tendered to the court and he tendered the same to the court and were admitted as an exhibit Dl. He also said to have called two witnesses but their evidence was not received by the trial court. 6 The learned State Attorney told the court that, they are supporting the appeal because the charge sheet used to charge the appellant was preferred under wrong provision of the law. She said the appellant was charged to have committed the offence of robbery with violence contrary to section 285 and 286 of the Penal Code, Cap 16, R.E 2002. She stated that, according to the amendments which has been done to the Penal Code the appellant was supposed to be charged under section 285 (1) and 286 of the said law. She argued that, the said error is against the requirements of section 135 (a) (ii) of the Criminal Procedure Code, Cap 20, R.E 2002 which provides for how the charge sheet should be drafted. To support her argument she referred the court to the case of Mussa Mwaikunda V. R [2006] TLR 387 where it was stated that, the minimum standards which n1ust be complied with for an accused person to undergo a fair trial is that the accused person must understand the nature of the charge. She contended that, though the learned trial Magistrate stated in his judgment to have observed the said error and cited some cases to show what is required is for the accused person to understand the charge is facing in court but the current decisions of the Court of Appeal stressed on all relevant and correct sections and subsections of the law to be cited in the charge 7 sheet. She submitted that, in order for the justice to the appellant to be done as the appellant was unrepresented the correct procedure which was supposed to be done was for the charge sheet to be amended before the delivery of the judgment. After considering the submission of the learned State Attorney who supported the appeal and going through the charge sheet which was used to arraign the appellant before the trial court, the court has found as rightly submitted by the learned State Attorney it is true that the appellant was charged and convicted on non-existing sections of the law. The court has found so after seeing the charge sheet shows the appellant was charged with an offence of robbery with violence contrary to section 285 and 286 of the Penal Code, Cap 16, R.E 2002 while according to the amendment done to the said law by Written Laws (Miscellaneous Amendments) Act, No. 4 of 2004 and the amendment done by Written Law (Miscellaneous Amendment) Act, No. 3 of 2011 there is an insertion of subsection 1 and 2 to sections 285 of the Penal Code to define the offence of robbery with violence and the new offence of gang robbery. 8 After the said amendment it is obvious that there is no longer section 285 which is in existence in the Penal Code as section 285 which is in existence in the Penal Code has subsections 1 and 2. Therefore as rightly submitted by the learned State Attorney the appellant was charged on non-existing provision of the law while the legal principle has always been that, an accused person must be charged under the correct provision of the law to enable him to know the nature of the case is facing before making his defence. What constitutes a proper Charge was discussed by the Court of Appeal in the case of Charles s/ o Makapi V. R, Criminal Appeal No. 85 of 2015 (Unreported) and stated that, section 135 of the Criminal Procedure Act, CAP 20, R.E 2002, imposes mandatory requirements that a charge sheet should describe the offence and make reference to the section and law creating the offence. The said section 135 (a) (ii) of the Criminal Procedure Act Cap. 20 R.E. 2002 States as follows:- 11the 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 9 offence an~ 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 court has found as rightly stated by the learned State Attorney the learned trial Magistrate stated in his judgment that, he discovered the charge upon which the appellant was arraigned before the trial court contain the said defects at the time of preparing the judgment. However, he based on the decision made in the cases of R. V. Ngindipe Bin Kapirama and Another [1939] 6 EACA 118 and Sabru V. R (1958) E.A 126 to find the said defect to be minor and curable as all the ingredients of the offence were well disclosed in the particulars of the offence he was facing. The court is not in agreement with the finding of the learned trial Magistrate because is contrary to the principle of fair trial which has been emphasized by our courts in number of cases. The consequences - of a trial upon a charge which is not drawn in accordance with section 135 (a) (ii) were addressed by the Court of Appeal of Tanzania in the case of Abdalla Ally V. R, Criminal Appeal No. 253 of 2013 (unreported) and stated that:- 10 "... 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'~ The Court of Appeal stated furthermore in the same case that:- "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.... " Therefore as rightly stated by the learned State Attorney the current position of the law is that, though the court is supposed to see the charge sheet contains all ingredients of the offence but as provided under section 135 (a) (ii) of the Criminal Procedure Code the charge must be laid under the correct provisions of the law to enable the accused person to understand the offence is facing so that he can be able to prepare his defence accordingly. The duty of making sure the accused is charged under the correct provision of the law before the commencement of the hearing of 11 his case was observed in the case of Mohamed Kaningo V. R [1980] TLR 279 where it was stated that:- ''It is the duty of the prosecution to file the charges correctly, those presiding over criminal trials shoul~ at the commencement of the hearing/ make it a habit of perusing the charge as a matter of routine to satisfy themselves that the charge is laid correctly, and if it is not to require that it be amended accordingly. " In the premises it is the finding of this court that, the prosecution and the learned trial Resident Magistrate did not discharge their duty properly as if they did so they would have discovered the said defect at the commencement of the hearing of the case and took the necessary step of correcting them. Moreover, even after discovering the said defect the learned Trial Magistrate did not take initiatives of ordering the prosecution to amend the charge but he proceeded to prepare the judgment and convict the appellant on the charge which was prepared under non existing provision of the law. The position of the law as to what should be done when the charge is found defective for being preferred under the wrong provision of the law as stated in number of cases including the 12 case of Fatehali Manji V. R [1966] EA 343 and Mussa Ramadhani V. R, Criminal Appeal No. 368 of 2013, CAT at Mbeya is to order the case to be tried do nova. However, before deciding to order re-trial of the case the court has found proper to go back to the grounds of appeal filed in this court by the appellant and his submission that he was convicted on the offence of the related witnesses without independence evidence to corroborate the said evidence. As rightly stated by the appellants in his submission the evidence used to convict the appellant is the evidence of PWl, PW2 and PW3 who are members of the same family as the evidence of PW4 who was an investigator of the case did not add anything valuable to the evidence of the said witnesses as what he told the trial court is what he was told by the other witnesses. To the view of this court though the evidence of the members of the same family is not discredited because of being the evidence of the members of the same family but the trial court was supposed to make sure there was no possibility of the witnesses to team up and came up with the version of the evidence they adduced in court to fix the appellant as he said he was not in good terms with PW3. 13 ' ' The court has come to the above view after seen that, though it was said the appellant stole the mobile phone of PW1 and his room was searched but he was not found with anything to connect him with the offence levelled against him. Also even the sandals (Exhibit Pl) said were left by the appellant at the room of PWl was strongly disputed by the appellant who tendered his sandals (Exhibit D1) which were similar to the one tendered to the court by prosecution witnesses. To the view of this court the evidence adduced at the trial court was not strong enough to establish the offence which was levelled against the appellant so that it can be said if the court will order the case to be tried de nova the offence of robbery with violence will be established. Upon arriving to the above finding the court has found the defects found in the charge sheet and the weakness of the evidence adduced at the trial court by the prosecution cannot be cured under section 388 of the Criminal Procedure Act, Cap 20 R. E 2002. In the consequences the proceeding and judgment of the trial court which was based on the said defective charge and insufficient evidence of the prosecution are found to be a nullity. 14 ' . Therefore as prayed by the appellant and the learned State Attorney the court is hereby allowing the appeal of the appellant and is quashing the proceeding and judgment of the trial court and the sentence of fifteen years imprisonment imposed on the appellant is set aside. Having done so, I hereby order the appellant to be released immediately from the prison unless is lawfully held there for some other cause. Dated at Dar es Salaam this 31 st day of July, 2017 15