20120529 TZCA Mwanza

,J -~ ·. .( 1, < IN THE COURT OF APPE~L OF TANZANIA

ATMWANZA {CORAM: RUTAKANGWA, J.A.• KILEO, J.A And ORIYO J.A.) CRIMINAL APPEAL NO. 257 OF 2009 EDGAR GELEGE ............................................................................ APPELLANT

VERSUS THE REPUBLIC ............................................................................. RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mwanza) {Sumari. J.) Dated the 30th day of April, 2009 in Original Criminal Case No. 68 of 2003

JUDGEMENT OF THE COURT / 29 May & ........... , 2012 ORIYO, J.A.: ~ In the District Court of Nyamagana District sitting at MwI'za, the A appellant Edgar Gelege, was charged with two counts as follows:- 1. Conspiracy to commit an offence contrary to section 384 of the Penal Code; 2. Robbery with violence contrary to sections 285 and 286 of the Penal Code. On the basis of the evidence received after a full trial, the District Court found the appellant guilty on the second count of robbery with 1 violence, by aiding and abetting, in terms of section 22(1) (c) of the Penal I 'I . Code, Cap 16 R.E 2002. He was ~entenced to fifteen (15) years imprisonment. Aggrieved by the finding of the trial court, the appellant unsuccessfully appealed to the High colrt sitting at MVrJanza, hence this second appeal. II In this Court, the appellant was aclvocated for by Mr. Salum Amani Magongo learned advocate while the restondent/Republic was represented by Mr Athumani Mtuma, learned Statl Attorney. In a three ground memorandum of appeal, Mr. MagongJ listed the following grounds of complaint:- ' st 1. That on the evidence on rec I rd the 1 appellate court erred in law and fact in findi~g that the appellant was a principal offender by virtui of section 22 (1) (c) of the Penal Code. I st 2. That the 1 appellate court erred in law by shifting 1 i ' ~ ' the burden of proof to the awpellant I I 2 3.

That as a whole the 1st appellate court misdirected itself on the evidence on record and the law applicable. However, at the hearing, the learned advocate opted to abandon grounds 2 and 3 thereof. Therefore the appeal proceeded on the basis of the first ground only. Before discussing the merits of the appeal we shall first state the facts in brief. It was the prosecution case that on 19 October, 2002, at about 13.45 hours, Anderson Jeremiah (PWl), was on his way to buy an assortment of merchandise for purposes of sale at his uncle's shop, one Stephen Bartholomeo, (PW2). PWl had in his possession some Shs 2,500,000/= for the purpose. On reaching Pasta Road, within the city of Mwanza, he met three men who were unknown to him. The three men who pretended to be policemen looking for vagabonds and rogues, led him to a certain corridor where one of them suddenly grabbed him and robbed him of the sum of Shs 2,500,000/=. Thereafter they all got into a taxi and sped 3 away from the scene. Unable to believe what had just taken place, and ,-while crying{ PW1 decided to go back to his uncle to explain what befell ....him. On the way bac~PW1 was also trying to trace his assailants, as he had taken note of their faces. At Pamba Road, he saw one of the assailants at the front seat of a taxi with registration number TZN 1600 , \ - t(' \o.t .....- which was being driven by the appellant. It was

not in dispute at the trail that the appellant was known to PW1 from before the incident. PW1 asked the driver/ appellant to stop because he had an issue with the passenger at the front seat. He addressed the appellant in Kiswahili as follows:- " ...simamisha taxi nina shida na huyo mtu aliyekuwa hapo mbele" PW1 was addressing the appellant at a time when the road was congested with traffic and cars were moving ~t ' slo~ pace ..which enabled PW1 to ,:~. ,,~'. l_g~--~ (( w~~K dive into the taxi, shoutin,~ . ~ t~e appellant and his passenger / ~C•l'1-, //'attacked PW1 with fists until they succeeded to push him out of the taxiP .. 1 fell down on the road and sustained serious injuries as a result. ~. . ._,,, l's body (head, chest and hands) was inside the taxi while the o~~ art re ained outside the car. The appellant did not stop. Instea~he h~ \ ~ac e erated the speed of the taxi a.Ad asked the passenger in Kiswahili :- --· 4 -·------------ _,,,,--~-·---- " huyu ndiyo yule kijana" fr The testimony of PWl was corroborated by that of PW4, E.500 PC Francis, a Traffic Police Officer on patrol who witnessed the incident. He~~ ~ k_saw taxi TZN 1600 driving at high speed, dragging along a boy who was crying for help while part of his body was inside the taxi and the other half remained outside. PW4 attempted to order the appellant to stop the taxi, ' but the latter sped on. PW4 was able

to identify the driver of the taxi as the appellant because he knew him before the incident. o.S In his defence, the appellant did not dispute the facts presented by : /(_ the prosecution. His defence was that he failed to stop and/or assist PW1 because he was under threat of his passenger who had a spring knife in his short trousers and had ordered him to drive faster. Submitting in support of the appeal, the learned advocate for the appellant faulted the lower courts for convicting the appellant on the count of robbery with violence under section 22(1) (c) of the Penal Code after acquitting him on the first count of conspiracy to commit an offence. It was 5 the view of the learned advocate that upon the trial court having acquitted the appellant on the offence of conspiracy, it meant that the appellant did not participate in the crime before its commission. In support, he referred c.. ~_, theJase of Damiano Petro and Another Vs R. (1980) TLR 260. He urged us to allow the appeal on that basis. On the part of the respondent/Republic, the learned State Attorney supported both the conviction and the senten~ the appellant. In ,_,, response to the submissions by Mr. Magongo, ~earned advocate, Mr. Matuma vehemently denied that the appellant was acquitted on the first count. He gave a short background of the charge sheet which, initially, had two counts. He stated that before the

closing of the prosecution case, the prosecutor, unsuccessfully sought leave of the trial court to amend the particulars of the first count. He further stated that it was when the prosecution efforts to amend failed, that the first count was dropped without the trial court having made any finding on it. "")\Supporting the conviction on the second count, in terms of section 22 (1) (c) of the Penal Code, the learned State Attorney argued that the offence of robbery with violence under Section 285 of the Penal Code, had two stages. The first stage is to obtain and the second stage is to retain the 6 thing stolen. He traversed through the prosecution evidence to show how the appellant participated in aiding and~,~~ robber/offender to retain the money that was robbed from PW1 by ensuring that the latter did not get hold of the passenger in the taxi. He said that the appellant achieved the intended purpose by driving faster when PW1 asked for the ~~ appellant's assistance, PW1 attempted to get ~et hold of the passenger w~ "' r"\J)u,l in the taxi and..bf the appellant ~ l h e passenger a telling question J• ~k-· 7,,, " h uyu nu1ye ,:;u,e qana, . •~ conclusion, the learned State Attorney submitted that the conduct of the appellant throughout the encounter with PW1 was inconsistent with that of an innocent person. He referred to the case of Damiano Petro and Jackson Abraham Vs Republic,

(supra)@ Admittedly, we are in entire agreement with Mr. Matuma, learned State Attorney, firstly that the facts surrounding the incident that led to the arrest, conviction and sentencing of the appellant as testified by the prosecution witnesses are not in dispute . Secondly, we have thoroughly studied the judgment of the trial court and we can state here without any hesitation that the appellant was convicted and sentenced on the second count only. With respect, we also agree with the learned State Attorney 7 OVv' that the trial court did not acquit .the appellant pf the offence of conspiracy, as alleged by the learned advocate for the appellant. The trial court merely dropped the first count without making any finding on it. Therefore, we wish to state at the outset here that the central issue in this appeal is on the proper application of Section 22(1) (c) of the Penal Code which provides:- " 22-{1} When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing namely:- (a) N/A (b) N/A ? (c) every person who aids or abets ~ another person in committing. the ,£}'- offence'~ (emphasis supplied). ~ As to whether the conduct of the appellant at the scene of crime amounted to aiding and abetting the passenger in the commission of the offence is an issue

of fact depending on the circumstances of the particular case, as it was amplified in an old English Case of R Vs Coney and 8 Others, (1882) 8 QJ3.D. 534 at 557 where the learned English Judge ...... stated the position of the law to be as follows:- " In my opinion, to constitute an aider and abettor some active steps must be taken by word or action with the intent to instigate the principal or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional a man may unwittingly encourage another in fact by his presence, by ©r __misinterpreted words, or gestures, pf by his silence, or non-interference, or he --- may encourage intentionally by expressions, gestures or actions intended to signify approval In the latter case he aids and abets, in the former he does not. It is no criminal offence to standby, a mere passive spectator of a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had power so to do, or at least to express his dissent, might under some circumstances afford cogent evidence upon which a Jury would be Justified in finding that he willfully encouraged and so aided and abetted. But it would be purely a question for the "· Jury whether he did so

or not. (Emphasis·supplied). 9 The position of the law under section 22(1)(c) of the Penal code·was examined by the Court of Appeal for Eastern Africa in the case of Zuberi s/o Rashid vR (1957) E.A 455 where the Court said the following:- "The learned judge, however, correctly directed himself that it is not sufficient to constitute a person a principal in the second degree that he should tacitly acquiesce in the crime, or .that he should fail to endeavour to prevent the crime or to apprehend the offenders, but that it is essential that there should be some participation in the act either by actual assistance or by countenance or encouragement" (Emphasis is ours) . The position of the law as stated in Zuberi's case by the Eastern Africa Court of Appeal was adopted by this Court in the case of Damiano Petro and Jackson Abraham V Republic, (supra). In that case, the appellants were convicted of murder by the trial High Court. There was a - contention on appeal to this Curt that the evidence on record against one of the appellants was not sufficient to prove the offence of aiding and abetting his co- appellant to commit the offence of murder. 10 This Court held, inter alia, the following:- •~ person present at the scene of crime cannot become a principal in the second degree merely because he does not prevent the offence or apprehend the offender" In a later decision in Makokoi

Chandema Vs Hassan Mtete, Criminal Appeal No. 143 of 1999 (unreported), the Court stated:- 1 ~....... a person commits the offence of aiding and abetting if he encourages intentionally by expressions, gestures or actions intended to signify approval "(emphasis added). Subsequent to Damiano Petro and Makokoi Chandema cases (supra), in the case of Steven s/o Jason and Others vs Republic, Criminal Appeal No. 79 of 1999, (unreported), the Court followed the principleSenunciated in its earlier decisions. Apart from relying on its earlier decisions, the Court cited with approval the old English case of R vs Conney and Others (,.:.l,882J~.B.D 534 at 55'4- (supra). 11 Q,\A.. ·-hTI"tl;i It is now opportune momen~~to demonstrate whether the trial court I\ I\_ was correct in applying the provisions of section 22(1) (c) of the Penal V. ~~ Code to ronvict the appellant. In the iAStaflt case, the appellant was , --requested by Pwl to stop the tax, because PW! wanted to talk to the passenger who was seated in the front seat. The appellant knew that PW! ,was not a thief (kibaka) as he alleged because t;; - admitted in evidence at the trial that he knew PW! and PW2 from before the incident but he ThSWf nevertheless refused to heed PW! 's requesY\and continued driving even faster than before. As it happened that PW!, in desperation, tried to get fW}~ hold of the passenger in the moving taxi,

such that part of _p5 body was inside the taxi while the other part hanged outside the taxi. Still in that position, PW! was assaulted with fists by both the appellant and his passenger until they succeeded to throw hirl! out an in ,the m~anw~il~he o..s. \'\A) I IV'JV'...X- WA..q • i - appellant and his passenger continued with~eir journey!\ s a result o the assault and being forcefully thrown out ofi -~he ~?~~i~xy _P~!:__\.O 0$~~(.WO"'- SUSta~ned ,sev~re injuries. The appellant:s., cond ct at-t-he scene-e,f 1,'10.S~~~°'-~~ e . wH:1:1 RW4 manife*d his intentid · to assist the appellant to '!1 retain the stolen mojy. It was such a crucial moment for his passenger such thatct .even wnen stopped by PW4, a law enforcer, the appellant lS~\M:i_,' refused t~~ffie ;r*l~ ~ • Here, the appellant conspicuously participated in the offence by actually assisting the assailant of PW1 to retain the stolen money, part of which was still in the assailant's possession. It was part of the evidence of the appellant (DW1), that on the fateful day he had driven the passenger ~<C,\ . around on some kind of a shopping spree to buy an assortment of WD \ , ._L . . •• -v~ ~ w~ '~ OL ~ ercha~ise. including g.old jewelll.ery, clothes, ladies handba,!;JS~~oe~ fC: ~ ~ \V'-'~-- -J ~ ._,..~~v..., On he to a 'ity o the evidence on record, we are satisfied, beyond reasonable doubt as was the trial magistrate and

as c o n = ~ learned High Court Judge, that the appellant, by his conduct A at the scene h£.-;;;~ ,, of the encounter, aidedand abeb:ed the passenger to retain the stolen I\__ money. Accordingly we find the appeal to lack any merit and the same is dismissed in its entiret;. - As of 30 April 2009, when the High Court decision to dismiss the peennddiinngg tthe out~ii of~- i- . ~ appeal was delivered, the appellant was on ~a.iill p ~ru\ ~ IAf/J3n~e~~W\,D.~ the appeal. He started serving the sentence after the High Court/\ance ed 13 ~s:w~' his bail o n ~ - We therefore order !that the sentence of fifteen (15) • years imprisonment meted on the appellant starts to run from 30/04/2009. It is ordered. DATED at MWANZA this ................. day of May, 2012. E.M.K. RUTAKANGWA '

JUSTICE OF APPEAL E.A. KILEO I

JUSTICE OF APPEAL K.K. ORIYO l

JUSTICE OF APPEAL 14