20171003 TZHC Mbeya

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MUSSA. J.A .. MZIRAY, l.A .. And NDIKA. J.A.) CRIMINAL APPEAL NO. 33 OF 2013 1. SADICK DANIEL RAMADHAN @ SADI } 2. BONIFACE TIMOT KAMETA ........................ APPELLANTS VERSUS. THE REPUBLIC ••••••••••• ■■■ ••••••••••••••••••••••• I • • •- • • • • • • • • • • • • • • • • • • • 'I!' •••••• RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Mwanqesi. l.) dated the 29th day of May, 2012 in (DC) Criminal Appeal No. 29 of 2011 JUDGMENT OF THE COURT 22nd September & 4th October, 2017 MUSSA, l.A.: The appellants, along with six others, had a day in the District Court of Mbeya facing a charge which was comprised of four ~aunts. As it w~re, the appellants stood trial as, respectively, the fourth and fifth accused persons, whereas their co-accused persons, were Minto Ntulo @ Mwamkinga, Samuel Amunike @ Mwakilembe, Betweri Katobike Bisege, Gibson Kisanga, Flora Idimeni Sayota and Sadiki John Mwafyela who 1 . stood, respectively, as the first, second, third, sixth, seventh and eighth i accused persons. On the first count, which was preferred against all, accused persons, i the accusation was that on or about theI 4th day of March 2009, at Mbeya . i . Textile Mill Limited, within the Rural District and Region of Mbeya, jointly i and together, the accused persons conspired to commit armed robbery i contrary to section 384 of the Penal Code, Chapter 16 of the Revised Laws (the Code). . I The second count was similarly preferred against all accused persons, the allegation being that they, on the same date and place, . jointly and together, committed arme~ robbery, contrary to section 287 A of the Code. More particularly, it was claimed that th,e accused persons stole Tshs. 3,700,000/=, USD 350, 3CDs, one shotgun, two rifles and 37 rounds of ammunition, the property of Mbeya Textile Mills Limited. It was 1 further alleged that immediately before I such stealing, , the accused persons wielded shotguns to, and assaulted a certain Angelina John I I I , Mtunga with an iron bar in order to steal and retain the stolen properties. I . • I The third count was arraigned against the second appellant alone and the same was for being in unlawful possession of a firearm, contrary to sections 4(1)(a) and 34 of the Arms and Ammunition Act, Chapter 233 1 of the Revised Laws. The particulars alleged that on or about the 9th day of March 2009, at Airport area, within the District and G:ity of Mbeya, the second appellant was found in possession of one shotgun with serial No. GFN 71/33434 without a permit or licence. Finally, the fourth count was arraigned against th~ seventh accused I only and it was, similarly, for unauthorized possession of a shotgun with serial No. C26363, on or about the 9th March 2009, at 1Uyole-ltezi within I the District and City of Mbeya. ' I When the charge sheet was read over and explained, all the accused persons refuted the respective accusations, whereupon the . i prosecution featured fourteen witnesses who testified in support of its accusation. At the close of the case for the prosecution, a prima facie case was found to have been established as against all the accused persons, save for the sixth accused who was found not guilty and acquitted. 3 As regards the remaining accused persons, a total of ten witnesses, including themselves were .featured to counter the prqsecution version. At the end of the trial, all accused persons were found not guilty of the first count to which they were, accordingly, acquitted. With respect to the second count, it were only the appellants along with the eighth accused persons who were found guilty and, upon being so adjudged, they were sentenced to serve life imprisonment. As for the third and fourth counts, the second appellant and the seventh accused person were, respectively, found guilty and sentenced to pay a fine of shillings one million each or serve a five iyears prison term. With regard to the second appellant, it was ironically ordered that his sentence was to run consecutively with the life sentence should he fail to pay the meted fine! In the wake of the .judgment of the District Court which was pronounced on the 17th March, 2011 the appellants along with the eighth I accused person preferred an appeal to the High Court where (Mwangesi, J. as he then was), allowed the appeal by the eighth accused and ordered his immediate liberty. As for the appellants, the trial court's finding of 4 guilt for armed robbery was upheld, save for the sentence of life i imprisonment which was set aside and substituted witp a term of thirty years imprisonment. The appellants were aggrieved and each sought to impugn the verdict of the High Court upon separate memoranda of appeal which are lengthy and verbose, just as they relate to a variety of points of grievance. For reasons which will shortly become apparent, we ·need not reflect on I the details of the memoranda of appeal and, neither do we have to recapitulate the evidence adduced during the trial. Suffice it to observe I that, having found the appellants g~ilty of armed robb~ry, the trial court did not go so far as register a conviction. When the appeal was placed before us for hearing, the second · appellant entered appearance in person, unrepresented, whereas the Respondent Republic had the services of Mr. Francis Rogers and Ms. Mwajabu Tengeneza, learned State Attorneys. The fir~t appellant did not I enter appearance and Mr. Rogers broke to us the sad news of his demise which occurred at Mbeya referral Hospital on the 16th September, 2017. 5 I I .1 In the circumstances, his appeal abated in terms of Rule 78 (1) of the i Tanzania Court of Appeal Rules, 2009 and, it is, accordingly, ordered. As regards the second appellant, we invited him. to comment on the consequences of the apparent omission by the trial ,court to enter a I conviction subsequent to the finding of guilt. As it turned out, the appellant was understandably unresponsive and preferred to hear the opinion of the learned State_ Attorney ahead of his rejoinder, if necessary. On her part, Ms. Tengeneza confirmed to us th~ detail about the appellant being sentenced without being convicted .. The learned State Attorney forthrightly submitted that the trial court's omission to register a conviction was fatal as it was contrary to the mandatory provisions of I I section 235 (1) of the Criminal Procedure Act chapter 20 of the Revised Laws (CPA). To redress th~ no-compliance, Ms. Tengeneza advised us to revise and nullify the entire proceedings of the High Court with an order for the remittance of the record to the trial to enable it[to reconstitute the judgment and sentence. As was expected, the appellant had little to offer in rejoinder, quite understandably, given the fact that he is a lay person. Nonetheless, he I 6 was unimpressed by the learned State Attorney's prayer for a remittance, more particularly, since the appeal has been dragging ~or quite a while, that is, from the date of his sentencihg on the 17th ry,arch, 2011. He accordingly, urged us exercise such wisdom as would btg this matter to its logical end. Addressing the issue of contention it is indeed, beyond question I i that, having made a finding of guilt as against the appellant, the trial court I did not proceed further to convict him' before passing the sentence. Section 235 (1) of the CPA, prov ides the following:- 1 1 ! ''235(1) the court, ha~ing heard both the complaint and the accused person and their i witnesses and the evidence, shall convict the i ' accused and pass sentence upon or make an order against him accotding to law. 01 shall acquit him or shall dismiss the charge under I section 38 of the Penal Code. " [Emphasis supplied.] 7 Section 235(1) is couched in a mandatory language in that, if at the i end of the trial, the court is of the opinion that on the evidence available, . the accused person is guilty, it must proceed furtherf in terms of this I subsection, by entering a conviction before proceeding, to sentence such accused person. The failure on the part of a trial court to convict the accused person I before sentencing him as in the instant case was not a mere irregularity curable under section 388(1) of the Criminal Procedure Act, but fatal. Further, Section 312(2) of the CPA provides the followihg:- "312. -(2) in the case of Conviction the Judgment i shall specify the offence of which, and the section of the penal code or other law under which, the i accused person is convicted and the punishment to which he is sentenced. " .! [Emphasis supplied.] I In terms of the clear, mandatory language used in both sections 235(1) and 312(2), there is no valid judgment without a conviction having I been entered, as the same is one of the prerequisites of a valid judgment; 8 • see Court's decisions in Shabani Iddi lololo and Others vs Republic, I I Criminal appeal No. 200 of 2006, Amani Fungabikasi vs Republic I . . ! Criminal appeal No. 270 of. 2008, Jonathan Mluguani I vs Republic, Criminal Appeal No. 15 of 2011, Frederick s/o Godspn and Another vs Republic, Criminal Appeal No. 88 of 2013 (all unreported) . . i Thus, under the circumstances at hand, we think,/ it would be in the I best interests of justice to remit the record back to the :trial court for it to . I enter a conviction according to law and thereafter impose a sentence, . I also according to law. We, therefore, quash the entire proceedings of the . -I High Court, as well as set aside the sentence that was imposed by the I trial court in the exercise of our revisional powers under section 4(2) of · .I the Appellate Jurisdiction Act, Chapter 141 of the ReJised Laws. In lieu ! ' I thereof, as already directed, this matter is remitted to fhe trial court for it . ' i to accomplish its task in accordance with sections 235(1) and 312(1) of I I the CPA. I In the meantime, the appellant should remain ,in custody pending the finalization and delivery of a properly constituted jLdgment of the trial · r court. In the interests of justice, it is further ordered that upon registering I I 9 i • the conviction, the appellant's prison sentence should start to run from I I the date when he was originally sentenced. All done, t~e appellant may i wish to reopen his appeal to the High Court in accordance with the law. Orders accordingly. I DATED at MBEYA this 3rd daY of October, 2017.i I K. M. MUSSA JUSTICE OF APPEAL I I . I R. E. S. MZIRAY JUSTICE OF APPEAL G. A. M. NDIKA JUSTICE OF APPEAL I certify that this is a true copy of the original. R I 10 I I· I