abdallah ally dulla vs republic 2023 tzhc 20046 31 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB-REGISTRY) AT MOROGORO CRIMINAL APPEAL NO. 1 OF 2023 (Originating from the Judgment ofthe District Court ofMorogoro^ at Morogoro dated 31^ August, 2022, Before Hon. R. Kaseie - PRM) ABDALLAH ALLY@DULLA APPELLANT VERSUS THE REPUBLIC RESPONDENT RULING 29'" May & 31"^ July, 2023 CHABA,J: The appellant, Abdallah Ally @ Dulla was arraigned before the District Court of Morogoro, at Morogoro and subsequently convicted with the offence of armed robbery contrary to section 287A of the Penal Code [CAP. 16 R. E, 2002], Now [R. E, 2022]. It was averred in the charge sheet that, on day of July, 2021 at Msamvu area within Morogoro District, in Morogoro Region, did stole cash money TZS. 325,000/= and one mobile phone, make TECHNO worth TZS. 300,000/=, the property of one James Christian, and immediately before such stealing, he assaulted the said James Christian with a Panga in order to obtain and retain the said the said stolen properties. Page 1 of 11 Upon conviction, he was sentenced to serve thirty (30) years imprisonment. Aggrieved, the appellant lodged this appeal against the conviction and sentence fronting seven grounds of appeal as follows: - 1. That, the learned PRM erred in law and in fact to convict and sentence the appellant based on poor identification to the appellant while the prosecution witnesses failed to give a proper description of the appellant. 2. That, the learned PRM erred in law and in fact to convict and sentence the appellant while there was no reason for his decision, no proper points of determination and section of the Penal Code under which the appellant was convicted contrary to section 312 (1)(2) of the Criminal Procedure Act [CAP. 20 R. E, 2019]. 3. That, the learned PRM erred in law and in fact to convict and sentence the appellant while he failed to observe the evidence of PW.l (the victim) and PW.2 (guests' attendant) which was full of huge contradictions on material aspects notably regarding the amounts of money alleged to have been stolen on the day of incidence. 4. That, the learned PRM erred in law and in fact to convict and sentence the appellant relying on Exhibit P.l (the PF3) and which was admitted un procedure I. 5. That, the learned PRM erred in law and in fact to convict and sentence the appellant while disregarding his affirmed defense testimony which Page 2 of 11 raises sufficient reasonable hypothesis irresistibly casting doubts about the guilty of the appellant. 6. That, the learned PRM erred in law and fact to convict and sentence the appellant on the basis of undigested and un-scrutinized prosecution evidence which actually failed to prove the alleged offence levelled against the appellant. 7. That, the learned PRM erred in law and fact to convict and sentence the appellant while the itself was not proved beyond reasonable doubt. When the appeal was called on for hearing, the appellant appeared in person, and unrepresented, whereas, Mr. Shaban Abdallah Kabelwa, Learned State Attorney, appeared for the Respondent Republic. In arguing the appeal, the appellant being a layman and without legal representation, randomly combined and argued together 6^'^ and 7^"^ grounds, whereas the 1^^, 2"^, and 4'^ grounds were argued separately. Submitting in support of the first ground of appeal, the appellant averred that, the trial magistrate erred in law and fact to convict him for the offence of armed robbery basing on weak evidence regarding identification as the prosecution side failed to describe the physical appearance of the appellant. On the second ground, the appellant submitted that, the trial magistrate failed to evaluate the evidence advanced by the prosecution witnesses, and that he neither expressed the reasons for reaching his decision nor stated / Page 3 of 11 mentioned the provisions of the law applied in convicting him contrary to section 312(1) and (2) of the Criminal Procedure Act, [CAP. 20 R. E, 2019] now [R. E, 2022]. As to the third ground, the appellant substantiated that the learned trial magistrate erred in law and in fact when he convicted him relying upon the evidence of PW.2 and PW.3 which were inconsistency regarding the stolen money. On the fourth ground, the appellant lamented that, even the PF3 was admitted in Court without considering the requirement of the law in tendering exhibits as it was the public prosecutor who prayed to tender the exhibit instead of the witness and the trial Court proceeded to admit the same as if it was tendered in evidence by the witness as required by the law. Regarding the 5'^'^, and 7'^'^ grounds, the appellant contended that, the trial magistrate did not consider his evidence as well as the legal issues he raised. He added that, the trial magistrate failed to evaluate the evidence adduced by the prosecution witnesses which suggested that the prosecution side failed to prove their case beyond reasonable doubt. He concluded his submission by requesting this Court to allow his appeal and set aside the sentence imposed on him. To support and strengthen his contention, the appellant referred this Court to a number of authorities including the cases of Waziri Amani Vs. R (1981) TLR, 250, Amiri Mohammed Vs. R (1994) Page 4 of 11 TLR, 138, Shija Massawe Vs. R, Criminal Appeal No. 158 of 2007 (unreported), Geodfrey Masabu Kabambu Vs. R, Criminal Appeal No. 26 of 2016, CAT (unreported), and Said Mohammed Mtula Vs. R,[1995]TLR,3. On his part, the learned State Attorney, Mr. Shaban Abdallah Kabelwa resisted the appellant's appeal in all grounds of appeal save for the 2"^, and 6'^'^ grounds. On the first ground, Mr. Kabelwa submitted that, the appellant was identified while at the crime scene, and that he was known for a long time. He added that, at page 9 of the typed copy of judgment, PW.l did identify the accused by mentioning his nicknames as Dulla Kipanga and that there was sufficient light to enable the identification of the accused. He averred further that, PW.2 also managed to identify the appellant as exhibited at pages 12-13 of the typed trial Court proceedings, when she narrated that, she knew the appellant in the past. Her testimony further reveals that, not only she happened to testify against him in Court but also the appellant used to come nearby her workplace. Additionally, Mr. Kabelwa told this Court that, it was the testimony of the PW.2 that on the fateful date there were sufficient electric lights just around the crime scene that assisted to identify the appellant herein. To fortify his argument, he referred this Court to the case of Jumapili Msyete Vs. R, Criminal Appeal No. 110 of 2014 at pages 14-15, and the case of Banzi John Vs. R, Criminal Appeal No. 644 of 2021 at pages 7-8. Page 5 of 11 Arguing on the 3"^^ ground, Mr. Kabelwa conceded the fact that there was inconslstence of evidence adduced by the prosecution witnesses regarding the amounts of money that were alleged to have been stolen from the respondent as it was exhibited at page 13 of the typed copy of proceedings, whereas the victim explained clearly that the amounts of money that was stolen is TZS. 325,000/=, while PW.3 upon being cross-examined did mention the amounts of money to be TZS. 500,000/=. On this facet, Mr. Kabelwa however argued that, the said inconsistence is not fatal and the same cannot dismantle the case as it was underscored by the Court of Appeal of Tanzania in the case of Dickson Elia Nsamba Shapwata and another Vs. Republic (Criminal Appeal No. 92 of 2007)[2008] TZCA 17(30 May 2008) at pages 7-8. On the fourth ground, Mr. Kabelwa contended that. Exhibit P.l was tendered and admitted in Court in accordance with the law and in compliance with the exhibits management guideline. Regarding the 2"^, 5'^'^ and 6^'^ grounds of appeal, Mr. Kabelwa had no other option other than to support the appellant's grounds of appeal and proceeded to submit that, the impugned judgment had no reason for the decision as well as points for proper determination. He added that, the trial magistrate did not consider and evaluate the evidence of both the appellant and the prosecution side and therefore violated the principles of law as it was expounded and emphasized in the case of Shija Massawe vs. R, Criminal Appeal No. 158 of 2007, at pages 6, 7 and 8 (unreported). Page 6 of 11 In the end, the learned State Attorney placed reliance on the decision of this Court (Ngwembe, J.) in the case of Onesmo Dadi Ndisael & Another Vs. Republic (Criminal Appeal Case No. 20 of 2021) [2022] TZHC 10593(20 June 2022)at pages 29-30 (unreported), and beckoned this Court to step into the shoes of the trial Court, rehear and evaluate the whole evidence advanced by both sides and come up with its own decision. Having heard the rival submissions from both sides and upon going through the trial Court records, the issue for consideration and determination is whether the present appeal has merits or otherwise. In determining this appeal, I find it prudent to begin with the second ground of appeal which, in my considered view, I believe that it suffices to dispose of the entire appeal. The second ground of appeal read, thus: - "That, the learned PRM erred in law and in fact to convict and sentence the appellant while there was no reason for his decision, no proper points of determination and section of the penal code under which the appellant was convicted contrary to section 312(1) and (2) of the CPA [CAP. 20 R. E, 2019], Now [R. E, 2022]." I have thoroughly scrutinized the judgment of the District Court, it is uncontested that, the judgement doesn't contain issues, decision on the issues and the reasons for such decision, hence contravened the provision of section 312(1) of the CPA (supra) which provides that: - Page 7 of.11 \ "Section 312 (1) - Every judgment under the provisions of section 311 shall, except as otherwise expressly provided by this Act, be written by or reduced to writing under the personal direction and superintendence of the presiding judge or magistrate in the language of the court and shall contain the point or points for determination,the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer as of the date on which it is pronounced in open court."(Emphasis is mine). From the above position of the law, I will right away state that, the trial Court was not justified to deliver its judgment with such glaring anomalies of lacking essential elements, such as points for determination, decision on the issues and the reasons for such decision. In total, all these anomalies render the impugned judgment a nullity as it was emphasized by the Court of Appeal of Tanzania in the case of Abubakari I.H. Kilongo & Another vs Republic (Criminal Appeal 230 of 2021)[2022] TZCA 722(21 November 2022)(extracted from tanzlii.go.tz), wherein the Court had the following to state on the judgment violating the provision of section 312(1) of the CPA: - "Generally, there is no problem with regard to the style and brevity of the court's judgment. However, the Judgment must contain relevant materials and be consistent with the Page 8 of 11 evidence laid before it in relation to the law. In short, it should comply with requirement stipulated by law, in this case, section 312(1) of the CPA. It follows that a judgment of the trial court which does not conform to the requirement of the provisions of section 312 (1) of the CPA is not a judgment in law and will often run risk of being quashed." On the way forward, the Apex Court went on underlining that: - "...we have carefully considered the contending arguments of the parties, given the nature of the offence, the circumstances of the case, and the evidence on record presented at the trial court we are of the view that the interest of justice will be served if we nullify the judgment and direct the trial court to compose a fresh judgment in accordance with the law as correctly submitted by the respondent republic's counsel." Guided by the above authority, I find the second ground of appeal which centered on the point of non-compliance with the provision of section 312 (1) of the CPA, sufficient to dispose of the entire appeal. In the event, I see no need and reasons to test the other grounds of appeal. For the above reasons, I allow the appeal and proceed to nullify, quash and set aside the judgement of the District Court of Morogoro, at Morogoro which was delivered on 31^^ day of August, 2022. Consequently, I hereby order Page 9 of 11 that the case file be remitted back to the trial Court for it to expediently and without delay compose a proper judgment in conformity with the provision of section 312(1) of the CPA. However, having in mind that the health condition for the trial magistrate is not so friendly, the Honorable Resident Magistrate In-charge of the District Court of Morogoro, at Morogoro shall take the appropriate measures to ensure that the matter is accordingly determined in line with the orders of this Court. Meanwhile, I further order and direct that the appellant, Abdallah Ally @ Dulla should remain in custody pending proper composition and delivery of the judgment by the trial Court. It is so ordered. DATED at MOROGORO this day of July, 2023. M. J. CH A JUDGE 31/07/2023 I T! f. ;. ; ' ' %:i . — .r.J / ^ • Page 10 of 11 Court: Ruling delivered under my hand and the Seal of the Court in Chamber's this 31^^ day of July, 2023 in the presence of Mr. Shaban A. Kabelwa, Learned State Attorney who appeared for the Respondent / Republic and the Appellant who appeared in person, and unrepresented. M. J. CHABA JUDGE 31/07/2023 Court: Right of Appeal to the parties fully explained. M. J. CHABA JUDGE 31/07/2023 Page 11 of 11