20180921 TZHC Mbeya

- THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA • (DISTRICT REGISTRY OF MBEYA) ATMBEYA CRIMINAL APPEAL NO. 10 OF 2017 (From the judgement of the District Magistrate Court of Rungwe at Tukuyu, Criminal Case No. 142 of 2016) BENSON I'IPALA ... .... ......... •.............tl........ .. ........ ...S...APPELLANT VERSUS THE REPI.JBLIC ......................................................... RESPONDEISIT JUDGEMENT Hearing date on; 111912018 Judgement date on; 211912018 NGWEMBE,J: The Appellant Benson Mpala © Kanyamoto was arraigned in court charged with two counts of shop breaking and stealing contrary to section 296 and receiving stolen property contrary to section 311 of the Penal Code Cap 16 R.E. 2002. It is alleged that the appellant on 4thi September, 2016 at night at Kiwira village within Rungwe District in Mbeya Region brock and entered into the shop of Jimson s/o Kajoja and steal various goods valued at TZS 2, 725,000/=. The prosecution successfully, proved the case and the trial court proceeded to convict the appellant and sentenced him to serve ten years imprisonment. 1 It is on record that the two accused were found with recently stolen properties, that PW 4 testified that on the fateful day, the appellant when saw police officers, started to run away and police ran after him and managed to arrest him. They made search in his house and found 25 wrapped clothes (vitenge) and other shop articles. It was the appellant who went with police to the house of Ipyana Mwalilungu where they found 29 pieces of wrapped clothes (vitenges) and 5 Khangas. Ipyana was not arrested, but his wife called Teresia d/o Abdallah Mwambilike was the one arrested and arraigned in court as the second accused. Upon being convicted and sentenced to ten years' imprisonment, the appellant was dissatisfied and subsequently issued notice of intention to appeal on 5th December, 2016 and his grounds of appeal were filed in court on 27th January, 2017 containing eight grounds of appeal which conveniently may be summarized into three grounds namely:- The prosecution failed to prove the case beyond reasonable doubt, and 2nd secondly, that the sentencing of the appellant was improper for the accused was sentenced to only six months on similar offence. That the conviction was improper for the trial magistrate failed to convict the appellant according to law. On the hearing date, the appellant was not represented, hence relied to his grounds of appeal and prayed that this court should consider them. Further added that his co - accused was sentenced to six months while he was sentenced to ten years' imprisonment. The sentence was unfair, discriminatory and unreasonable. 2 The respondent was represented by Mr. Mtenga supported the appeal on the ground that the trial magistrate did not convict the appellant according to section 312 (2) read together with section 235 (1) of the Criminal Procedure Act. The judgement contain conviction under Criminal Procedure Act which they were not charged for. Further argued that since there is no proper conviction, this appeal also is nullity for same is founded on improper judgement. The remedy available is to return the proceedings to the trial magistrate with instructions to compose a legally acceptable judgement. Though the learned State Attorney, proceeded to submit on the evidence on record and the way how the appellant facilitated the arresting police officers to find where about the stolen properties, yet such evidence may not be relevant in the circumstances for before the court, if proved that the trial court did not convict the appellant properly, it means there is no valid appeal before this court. Therefore, 1 have decided to deal first with proper or improper judgement of the trial court. As rightly pointed out by the learned State Attorney, the judgement of the trial court contains the following conviction:- "In the instant case, both accused persons were found with recently stolen property in their houses. Hence I can safely and confidently conclude that they are the once who broke into the shop and stole the vitenge, khanga and other items as numerated in the charge. I therefore, find them guilty for the offence shop breaking and stealing C/S 296 of the Penal Code 3 Cap 16 Vol. 1 of the Laws Revised Edit/on 2002. They are hereby convicted u/s 235 (1) of the Criminal Procedure Act, Cap 20 Re vised Edition 2002 ' This conviction is ambiguous and unknown in law, it is not known if the accused were convicted under the Penal Code or under the Criminal Procedure Act. Such irregularity goes to the crux of the validity of the judgement itself as rightly stated in various decisions of this court and the court of Appeal. In the case of Kelvin Myovela Vs. R Criminal appeal no. 603 of 2015 the Court of Appeal held:- "It is not sufficient to find an accused guilty as charged. Failure to enter a conviction renders a judgement invalid. In fact, there is no valid judgement without a conviction having been entered, as it is one of the prerequisites of a valid judgem ent' In another case of the Court of Appeal, Criminal Appeal No. 203 of 2011 between George Patrick Mawe & 4 others Versus Republic at page 4 held:- "In the case of conviction the judgment shall specify the offence of which and the section of the Penal Code or other law/the accused person is convicted and the punishment to which he is sentenced'. It is now settled principle of law that failure to convict the accused person is not a mere irregularity curable under section 388 of the CPA, but fatal. In terms of sections 235 (1) and 312. (2), there is no valid judgment 4 without proper conviction of the accused person, as is a prerequisite of a valid judgment; see Cr/rn/na/Appeal No. 253 of2Ol3Abdallah Ally V. R. (Court of Appeal) (unreported). The Court of Appeal invalidated any judgment which lacks proper conviction. An incomplete judgment, should be returned to the trial magistrate with instruction to compose a legally acceptable judgement according to sections 235 (1) and 312 (2) of the Criminal Procedure Act Cap 20 R.E. 2002. In other words, the trial magistrate should complete his judgement according to law. However before arriving into that conclusion, there is another equally relevant legal point to be considered at this juncture. The history of the appellant, as recorded by the trial magistrate, he was termed as habitual offender who was convicted more than three times in the same court, thus lead the court to sentence him to a term of ten years, but the 2nd accused was sentenced to six months' imprisonment. The sentence was meted on 30th November, 2016. Therefore, under normal circumstances, the 2' accused completed her sentence on 29th May, 2017. Now whether it is legally prudent in that circumstance, to order proper conviction of the appellant, which means, both accused have to be called in court and the proper judgement be read over afresh to both accused. What will be the use of recalling the 2nd accused in cOurt and read the judgement afresh to a person who has already served her sentence of six-month imprisonment. Worse still she did not intend to appeal against that sentence. Before arriving into the conclusion, there are other legal issues to discuss. 5 Another equally, important irregularity to point out, which is apparent on the face of the trial court's records is the appearance of the parties. In the charge sheet there are two accused namely, (1) Benson Mpala © Kanyamoto and (2) Teresia d/o Abdallah Mwambilike who were both convicted and sentenced with different period of imprisonment. However, in both judgement and proceedings, the title is "Republic versus Benson 2nd s/o Mpala accused" the name of the accused has not featured anywhere. It is not known, whether was done by default of by design, even the prosecution failed to remind the court throughout the hearing at the trial court. Justice Philip Nnaemeka - Agu of Supreme Court of Nigeria who in Michael Okaroh Vs. The State, SC 58/1989 held:- "It goes without saying that a Counsel in court in a capital trial has a very important and sacred duty to perform. He owes that duty to not only to his client and the court but also to society at large. It is of the very essence of that duty he should promptly take objection to every irregularity at the trial, be that an irregularity relating to procedure or to evidence called at the trial' The prosecution was not only responsible to prove the case beyond reasonable doubt but was equally responsible to find that accused are properly recorded and justice is not only done but seen to be done by the passerby. Considering all those circumstances, I am satisfied that there is no reason to decide otherwise than to allow this appeal, quash the conviction and set aside the sentence of the trial court. Subsequently the appellant be released immediately, unless otherwise lawfully held. Order accordingly. RT P. J. NGWEMBE, / ('.. JUDGE 21/09/2018 DvF1beya in Chambers on this 21st day of September, 2018; in the presence of the Appellant and Miss. Xaveria Makombe State Attorney for the Respondent. Right to appeal to the Court of Appeal explained. P.J. NGWEMBE, JUDGE 21/9/2018 7