athman salum maganga vs republic 2023 tzhc 16082 27 february 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA s. : TABORA DISTRICT REGISTRY AT TABORA DC CRIMINAL APPEAL NO. 9 OF 2022 (Arising from Nzega District Court in Original Criminal Case No. 73 of2020) ATHMAN S/O SALUM @ MAGANGA -------- Ist APPELLANT JUMA S/O RAMADHANI @ MKANZA DOZA----------- 2nd APPELLANT MATHIAS S/O BONIVENTURE @ KASHIM------------ —3rd APPELLANT JOSEPH S/O ANDREA @ CHONGOMA---- ------------- - 4th APPELLANT 1G0MA S/O KAPOLE @ JOHN KONDO--------- ——- 5th APPELLANT GODFREY S/O MICHAEL @ TIMBA KONDO 6th APPELLANT JUDGMENT Date: 11/11/2022 & 27/02/2023 BAHATI SALEMAJ.: The appellants Athman Salum @ Maganga, Juma Ramadhani @ Mkaza Doza, Mathias Boniventure @ Kashim, Joseph Kapole @ John Kondo Godfrey Michael @ Timba Kondo together with two others who are not subjects of this appeal were arraigned in Nzega District Court facing six (6) Counts of Armed Robbery c/s 287A of the Penal Code, Cap. 16 [R.E 2019], two (2) counts of Assault Causing Actual Bodily harm c/s 231 of the Penal Code Cap. 16 [R.E 2019], one count of Malicious damage to Property c/s 326() of the Penal Code, Cap. 16 [R.E 2019] and one count of Accessory After the Fact c/s 387(1) and i Iw 388 of the Penal Code, Cap. 16 [R.E 2019], the last count was in respect of one accused person who is not a party to this appeal. Upon finality of the trial, the six appellants were convicted, their conviction is stated in the last paragraph to page 45 of the typed judgment, I quote; "From all the surrounding circumstances I have said so far, I stand firm and hold that the charge of armed robbery c/s 287 and Assault causing actual bodily harm c/s 241 of the Penal Code, Cap. 16[R.E 2019] against Athman Salum, Juma Ramadhan Mkanza @ Doza, Mathias Boniventure Kashim, Joseph Andrea Chongoma, Igoma Kapole @ John Kondo and Godfrey Michael Tim ba respectively has been proved beyond reasonable doubt. I accordingly find them guilty of armed robbery and Assault Causing Actual Bodily Harm and I convict them as charged." Having read the quoted paragraph it came to my understanding that; the trial magistrate did not appropriately convict the appellants as required by the law. First, the magistrate did not state which counts among the six counts of armed robbery the appellants were convicted on. Also, as to the offence of Assault Causing actual bodily harm c/s 241 of the Penal Code the learned magistrate did not specify the count 2 which was proved against the appellants because they all stood charged with two counts of Assault Causing actual bodily harm. The last count that the appellants stood charged with was Malicious damage to Property contrary to section 326(1) of the Penal Code Cap 16.[R.E-2022] but until the last point of the trial court judgment the magistrate left this count unresolved. Another anomaly evident in the trial court's judgment is the section of the law on which the appellants were convicted on. The quoted paragraph states that the charge of armed robbery c/s 287... Has been proved accordingly and the trial magistrate went on to convict the appellant as charged. Section 287 of the Penal Code creates the offence of Attempted Armed Robbery the offence which is different from the one created by section 287A of the same law. In the case of the Director of Public Prosecution vs Ponda Issa Ponda, Criminal Application No. 57 of 2015 CAT at Dar es Salaam,, the Court of Appeal of Tanzania stated that mere mention of the word convict does not suffice for proper conviction the court must state the law and particular section of the law which the accused is convicted upon. In the circumstances of the case at hand and based on the reason for errors committed by the trial magistrate it is evident that the six appellants were not properly convicted. Consequently, I order that the matter be remitted back to the trial court for the proper composition of judgment which conforms to the legal requirements. 3 Order accordingly. M^a A.BAHATI SALEMA JUDGE 27/02/2023 Court: Judgment delivered in presence of both parties via virtual court. A.BAHATI SALEMA JUDGE 27/02/2023 Right of appeal fully explained. BAHATI SALEMA JUDGE 27/2/2023 4