Criminal appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 31559 OF 2024 (Arising from the Judgement of the District Court of Ilala (Hon. M. K. Burhan, SRM) in Criminal Case No. 2145 of 2024 dated 27th September 2024) ________________________ HEMED MBWANA HEMED…….………………..……….. APPELLANT VERSUS REPUBLIC…………………………..…..………………...RESPONDENT JUDGEMENT Date of last order: 16th December 2024 Date of Judgement: 4th February 2025 MTEMBWA, J.: In the District Court of Kibaha, the Appellant was arraigned on two counts of armed robbery contrary to section 287A of the Penal Code, Cap. 16, R.E. 2022. In the first count, it was alleged that on 1st October 2023 at Tabata Chang'ombe area within llala District in Dar es Salaam Region, the Appellant stole a motorcycle registered as MC 991 DLX make BAJAJ BOXER valued at Tanzanian Shillings 3,600,000/=, a property of ALOYCE AKWILIN ASSENGA and immediately before and after used force against BARAKA PETER 1 ASSENGA to obtain and retain the stolen property. In the second count, it was alleged that on the same date and area, the Appellant stole a mobile phone make SAMSUNG S9 valued at Tanzanian Shillings 400,000/=, a property of BARAKA PETER ASSENGA and immediately before and after used force against BARAKA PETER ASSENGA to obtain and retain the stolen property. Briefly, on 1st October 2023, at around 13:00 hours at night, PW1, a motorcyclist, was at Sinza around Kitambaa Cheupe area when the Appellant required him to take him to Tabata area. By then, he was riding a Motorcycle registered as MC 991 DLX make Bajaj Boxer. Having arrived at the agreed destination point, the Appellant switched off the Motorcycle, and another Motorcycle immediately arrived with other people, one of whom attacked PW1, and as a result, he ran away, leaving behind the Motorcycle. The robbers also stole PW1’s mobile phone make SAMSUNG S9. Therefore, PW1 had to inform the Motorcycle owner, who linked with the supplier, to locate the Motorcycle using GPS technology. Although the incident happened at night, PW1 could identify the Appellant with the help of the electricity illuminating the area of the scene. 2 The Appellant resisted the charge. Consequently, the prosecution paraded six (6) witnesses and tendered seven (7) exhibits. The Appellant relied on his affirmed testimony and tendered no exhibit. Having evaluated the evidence adduced during hearing, the trial Court was satisfied that the Appellant committed the alleged crime and proceeded to convict him as charged. The trial Court then sentenced the Appellant to serve thirty (30) years imprisonment. Dissatisfied by both the conviction and sentence, the Appellant has laid before this Court the following grounds of appeal and I quote in verbatim; 1. That, the trial magistrate erred in law and fact to convict and sentence the appellant with contradiction Pw1 evidence who vividly told the court that he managed to identify the appellant and at the same time he did not know the person who hit and hired him. 2. That, the trial magistrate erred in law and fact to convict and sentence the appellant for the Pw1, Pw3, Pw4 and Pw6 evidence which was inconsistence to prove visual identification. 3. That, the trial magistrate erred in law to convict the appellant contrary to section 214(1) of CPA as the record (Coram) does not depict the first magistrate who conducted the hearing of Pw1 and Pw2. 4. That, the trial magistrate erred in law and fact to convict and sentence the appellant for the Exh. PE.2 which was obtained involuntary yet trial within trial was not conducted after objection. 3 5. That, the trial magistrate erred in law and fact to convict and sentence the appellant for the Exh PE.3 which was not cleared before admission. 6. That, the trial magistrate erred in law and fact to convict and sentence the appellant for the Pw6 and Exh. PE. 7 evidence which fail to prove whether the appellant was the one parked the motorcycle in the yard. 7. That, the trial magistrate erred in law and fact to convict and sentence the appellant for failure to draw adverse inference for prosecution for their failure to call/summon watchman who alleged open the gate and author of Exh PE. 7. 8. That, the magistrate erred in law and fact to convict and sentence the appellant disbelieving his defence which raised reasonable doubt. 9. That, the trial magistrate erred in law and fact to convict and sentence the appellant for the case which was not proved beyond reasonable doubt. When this matter came for orders on 16th December 2024, the Appellant appeared in person while Mr. Cathbert Mbilingi, the learned State Attorney, represented the Respondent. By consent, the parties agreed to argue this Appeal by way of written submissions. However, it could appear the Appellant never complied with the order. He did not file his submissions in support of the Appeal. For this reason, I called the parties, specifically the Appellant, to address such inability. 4 When prompted, the Appellant was surprised to hear that his submissions in chief had not been filed electronically. He informed this Court that on the day he could not remember, he presented it to the prison admission office for filing. He, however, implored this Court to allow him to file the submissions later should the Respondent not object. On his part, the learned state attorney had no objection to the prayer. He only prayed to be served promptly should the prayer to file the submissions out of time be granted Before attending the Appellant’s prayer, I reviewed the impugned Judgment of the lower Court and noted that the conviction and sentence meted against the Appellant are manifestly confusing. For easy reference, I shall reproduce the respective part thereof; Having said so, it is my humble view that the prosecution has been able to prove its case beyond reasonable doubt, The defense only witness gave general denial to commit the offence where he gave different incident that he was at the bar and arrested after he hit a person with the bottle. His defense was not backed up by anything or anyone. I therefore find the accused is guilt of the offence charged. It is so ordered. Having resolved as such, the learned trial Magistrate inquired whether the Appellant had any previous convictions. Having been assured by the learned state attorney, he further inquired into whether 5 there were mitigating factors from the Appellant. In the end, the learned trial Magistrate sentenced the Appellant as follows; Considering the mitigation and the kind of the offence committed. The accused is hereby convicted to serve 30 years imprisonment. In such a state of confusion, I required the parties to address me on whether the Appellant was properly and legally convicted and ultimately sentenced. In response to the above, the learned state attorney admitted that the impugned Judgment of the lower Court is not legally correct. Stretching further, he submitted that the Appellant was not convicted in terms of section 312(2) of the CPA as the Judgement never specified the penal law contravened and the offense committed. He considered the conviction illegal. As to whether the sentence was proper, the learned state attorney faulted the learned trial Magistrate for not sentencing the Appellant in accordance with the law. He implored this Court to set aside the Judgement and remit the records to the trial Court before the same trial Magistrate for the composition of the fresh Judgement in accordance with the law. On his part, being the layperson, the Appellant had nothing to say. Reluctantly, he joined hands with the learned state attorney. 6 Indeed, in our laws, the Accused is considered innocent until proven guilty. Reasonable doubt stems from insufficient evidence. If it cannot be proved with a doubt, then the Accused should not be convicted. Conversely, verdicts do not necessarily reflect the truth; they reflect the evidence presented, which reflects the actual reality of what happened. Beyond a reasonable doubt is the highest standard of proof used in any court of law and is widely accepted worldwide. In Tanzania, the standards are codified under section 3(2) (a) of the Evidence Act, Cap 6 R.E 2022 (see also John Makolobela Kulwa Makolobela & Another alias Tanganyika vs. Republic (2002) TLR 296). It is used exclusively in criminal cases because a conviction has severe consequences and can ultimately deprive the Accused of his or her liberty or life. It is trite law that the judgment should contain conviction and sentence. According to section 312 (1) of CPA, every judgment shall, except as otherwise expressly provided by the 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 7 and signed by the presiding officer as of the date on which it is pronounced in open court. Of course, I understand this is the most challenging part of the Judgment. Subsection (2) provides conditions in case the conviction is entered in favor of the prosecution. Lucidly, it provides as follows; In the case of conviction, the judgment 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. The rationale behind the cited law was underscored in the case of Hussein Iddi Msuya vs. Republic (Criminal Appeal 10 of 2021) [2022] TZHC 88 (2nd February 2022), where this Court noted; In criminal trials the end result is either acquittal or conviction. In case the accused is convicted, the trial court has uncompromised duty to pronounce conviction and the subsequent sentence. Failure to convict the accused based on the charging section of law is fatal. Also, failure to pronounce sentence as required by law is equally fatal contrary to section 312 (2) of CPA. As the learned state attorney correctly alluded to, the Appellant was not convicted in accordance with the law. As prefaced above, section 312 (2) of CPA needs no interpolation as it provides for the 8 mandatory inclusions in case the person is convicted of an offense. Mandatorily, the penal section contravened, and the offense committed must be specified. The phrase “I therefore find the accused is guilty of the offense charged” is lacking and insufficient for the following reasons: one, it does not specify the penal section contravened; two, it does not specify the offense committed which the accused (Appellant) is found guilty; and three, it does not imply and mean that the Appellant was convicted of any offense. In the circumstances, the conviction was not entered against the Appellant. In Hassan Mwambanga vs. Republic, Criminal Appeal No. 410 of 2013 (unreported), the Court noted; it is now settled law that failure to enter a conviction by any trial court, is a fatal and incurable irregularity, which renders the purported judgment and imposed sentence a nullity, and the same are incapable of being upheld by the High Court in the exercise of its appellate jurisdiction. It must be noted that after having dispassionately and keenly considered the evidence presented, the trial Magistrate must first consider whether the Accused is guilty as charged. Secondly, he must go further and convict him or her in terms of section 312 (2) of CPA. For clarity, the convicting part of the Judgement must 9 mandatorily specify the penal section contravened and the offense committed. Thereafter, he must consider whether there are previous convictions and mitigation factors by the Accused. Lastly, the trial Magistrate must sentence the Accused in accordance with the penal section considered at the time of conviction. In that respect, therefore, sentencing is the most essential part of the Judgment. A Judgement in which the sentence is ambiguous is illegal and can not be left unattended. In my opinion, the phrase “the accused is hereby convicted to serve 30 years imprisonment” is vague and unclear, and it does not imply that the Appellant was sentenced to serve thirty years imprisonment. It must be noted further that in criminal cases, the Accused is not “convicted to serve” but “sentenced to serve.” The words “conviction” and “sentence” cannot be used interchangeably; each has a different meaning when used. Borrowing a leaf from Hussein Iddi Msuya (supra) Judgement may be termed as a decision between life and death; laughing and crying; joy and pain; separation with family and union; poverty and prosperity. Therefore, I have observed several times, the court verdict is the most pernicious part to the loser or accused person. Therefore, failure to pronounce sentence is fatal. Thus, pronouncement of sentence is statutory, but is the most difficult part of the 10 whole judgement. In the circumstances, I agree with the learned state attorney that the Appellant was not properly convicted and ultimately sentenced. In such circumstances, the Judgement of the trial Court can not be left unattended. That said, the Judgement of the trial Court is hereby set aside. The records be remitted to the trial Court for composition of the flesh Judgment in accordance with the law. For clarity, the same trial magistrate should promptly compose the fresh judgment unless he is no longer stationed at the same station or has ceased to have the requisite jurisdiction the law needs. Meanwhile, the Appellant shall remain in custody until the final determination of his fate. I order accordingly. Right of appeal fully explained. DATED at DAR ES SALAAM this 4th February 2025. H.S. MTEMBWA JUDGE 11