20180827 TZHC Mbeya2

4 1 IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF MBEYA) AT MBEYA CRIMINAL APPEAL NO. 189 OF 2016 (Appeai from the judgement of the District Court of Chunya at Chunya, Criminal Case No. 222 of2016) MADULUNGURENYA ............................................. APPELLANT VERSUS THE REPUBLIC ...................................................... RESPONDENT JUDGMENT Hearing date: 2110812018 Judgment date: 301812018 NGWEMBE, J: The appellant in this appeal Madulu Ngurenya, was charged for armed robbery contrary to section 287A of the Penal Code Cap 16 R.E. 2002, convicted and sentenced to serve thirty (30) years imprisonment. Brief facts are that on 30th august, 2016 at Shoga village within Chunya District in Mbeya Region, the appellant did steal TZS 1, 400,000/ property of Msuga d/o Lusangija and immediately before or after stealing, did hit the said victim by using sticks in order to obtain and retain the stolen money. The invasion took place around 10.00 pm when the victim was sleeping with her children, three robbers forced in her house put off light but the victim and her children had intense torch used in mining, therefore, light was enough to identify the appellant as Dulu. Prior to stealing the said money, they used stick to beat the victim in various parts of her head until she became unable to talk. She was admitted at Chunya District Hospital for treatment The accused was among family member— in law of the victim and it is in record that at one time he slept in the house 1 of the victim. The appellant was arrested by using cybercrime detection to allocate where he was. Finally, was arrested at Tabora and taken to Chunya to answer his charges. After being convicted and sentenced to serve thirty (30) years imprisonment, the appellant was aggrieved by the conviction and sentence which was made on October, 2016, hence on 17 " October, 2016 issued notice of intention to appeal and finally came to this court by registering eight (8) grounds which conveniently may be summarized into three grounds: That the trial court erred in convicting the appellant while there was no proper identification; The trial magistrate erred in law by not considering the defence of alibi; That the trial magistrate did not convict the appellant contrary to section 235 (1) of the CPA. On the hearing, the appellant was not represented and could not provide any substantial explanation rather relied into his grounds of appeal and prayed the court to consider them. Miss Tengeneza a learned state Attorney represented the Respondent. She supported the appeal on ground that the trial magistrate failed to convict the appellant properly as appears in page 4 of the judgement, hence the judgement was contrary to section 312 (2) of the Criminal Procedure Act Cap. 20 R.E. 2002. She further submitted that the section has specific contents of a court judgement which is missing in the trial magistrate's judgement. The learned State Attorney referred this court to the case of Kelvin Myovela Vs. R Criminal appeal no. 603 of 2015 whereby the Court of Appeal held: "It is not sufficient to find an accused guilty as charged. Failure to enter a conviction renders a judgernent invalid, In fact, there is no valid judgement without a conviction having been entered, as it is one of the prerequisites of a valid judgernent" Having so submitted, she rested her argument by appealing that the trial court did not compose a valid judgement, consequently there will be no valid appeal from invalid judgement. She therefore, prayed this court to return the file to the trial court for proper composition of a valid judgement known by law. Having heard both parties, it is a settled law that a legally acceptable judgement of a court of law must be composed by including all necessary requirements 2 Fl of a valid judgment as per section 235 (1) of the Criminal Procedure Act. Section 235 (1) is reproduced hereunder: The court, having heard the complainant 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..." When the court convicts the accused, magistrates should always apply section 312 (2) of the Criminal Procedure Act which section read: "In the case of conviction the judgement shall specify the offence of which, and the section of the Penal Code or other law under which, the accused person is convicted and the punishment to which he is sentenced" These sections are couched in a mandatory language, in that if at the end of the trial, the court is of the opinion that, on the strength of evidence adduced in court, the accused person is guilty, it must proceed to enter conviction and the subsequent sentence. It goes therefore that, a judgment without proper conviction may be called anything, but not judgment known by law. It is not enough to state that the accused is 'convicted as charged' such statement does not comply with the cited sections of the law. Trial courts must specify which offence under which section the accused is convicted to. Failure to do so the judgement becomes incomplete and the remedy is to return to the trial magistrate to complete his judgement by entering proper conviction. The Court of Appeal in Criminal Appeal No. 203 of 2011 between George Patrick Mawe & 4 others Versus Republic at page 4 held: 3 "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" The trial magistrate upon conclusion of the hearing, pronounced that: "On the grounds that the accused ('and other two) were seen while Izittilig PW3 and stealing the money in the box with the identification by i,,tense light froni the torches, the prosecution has Jo und its case be3'ond all the corners of doubts and the court convict hi,,, as charged" It is a 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 (2) and 312 (2), there is no valid judgment without conviction of the accused person, as is a prerequisite of a valid judgment; see Criminal Appeal No. 253 of 2013 Abdalla/, Ally V. R. ourt ofAppea (unreported). The Court of Appeal invalidated any judgment which lacks conviction. Without much to say I fully subscribe to the submission of the learned State Attorney that an incomplete judgment, should be returned to the trial magistrate with instruction to compose a legally acceptable judgement according to sections 235 (2) 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. This point alone negate other grounds of appeal for there is no valid judgement capable of being appealed against. t~~ 4 19 Having so said, this court issues the following orders: - I. The trial magistrate is hereby instructed to compose a legally acceptable judgement by including conviction according to sections 235 (1) and 312 (2) of the Criminal Procedure Act Cap 20 R.E. 2002; The file of the trial court be returned to the trial magistrate to comply with order one above; The appellant shall remain in prison and should be returned to the trial court for proper conviction and upon the trial magistrate complying with the above orders, the appellant may wish to lodge his appeal afresh; and Time to appeal shall commence from the date when a proper judgement of the trial court is delivered. Order accordingly. ......... C . 1/ (;i•/ 7.. I P.). NG EMBE JUDGE IS 27/08/2018 Court: Delivered at Mbeya in Chambers on this 27th day of August, 2018 in the presence of the Appellant and Mr. Baraka Mgaya State Attorney for the Respondent. Right to appeal to the Court of Appeal explained. P.J. NGWEMBE JUDGE 27/08/2018 5