20170328 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CRIMINAL APPEAL NO. 295 OF 2016 (OR/GINA TING FROM !LALA DISTRICT COURT AT SAMORA AVENUE IN CRIMINAL CASE NO. 275/2014) HAMIDU RAMADHANI ALLY ..............................APPELLANT

VERSUS REPUBLIC .................................................... RES PON DENT Date of last Order .· 3/2/2012 Date of Judgment .· 28/3/2017

JUDGMENT Kitusi, J. Hamidu Ramadhani Ally the present appellant was charged and convicted with Robbery with violence contrary to Section 285 and 286 of the Penal Code Cap. 16 R.E.

2009. It was alleged that the appellant on 10th August, 2014 at Chimala Street within Ilala District, Dar es Salaam Region, stole a handbag containing a total of Shs. 1,255,000/= in cash, one mobile phone make phone 45, one wrist watch make Seiko valued at Shs. 55,000/= and 1 immediately before such stealing used actual violence to one Gloria Clement Nkungu in order to obtain the said properties. The appellant denied the charges thereby placing on the prosecutions shoulders the burden to prove the same. In a bid to prove the case the prosecution called five witnesses. The following story is told by these witnesses for the prosecution. On 4/8/2014 one Ally Abdurahman Haji (PW2) then residing at Kigoma Street within Ilala District was approached by a person of Indian origin known as Abdulratif. The said Abdulratif requested to use PW2's motor vehicle for hire, and PW2 agreed. PW2 gave Abdulratif his vehicle Registration Number, ·T. 895 CPG, a Verosa, black in colour. On 7/8/2014 Abduratif still had the motor vehicle when he contacted PW2 and this time around, Abdulratif was in the company of a man who was introduced as Hamidu. Abdulratif had use of the vehicle as of 11 th August, 2014. Meanwhile Gloria Nkungu (PW3) a teacher and consultant was working (training) at Aga Khan Hospital on 10/8/2014. At some point around 14 hours as she was carrying her belongings from her office to

the parking area towards her motor vehicle a runaway vehicle drove past as someone in the said motor vehicle 2 opened the window leaned out and grabbed PW3's bag. PW3 held onto the bag as the motor vehicle drove on, causing PW3 to fall down. PW3 described the people who were in the runaway motor vehicle as one an Arab and he was the driver and the other a "Swahili" but brownish tall giant. It is the latter who grabbed PWl 's bag off. PW3 described the motor vehicle as a reddish Verosa. She was left injured and stunned standing by her motor vehicle with one Belinda (PW4) her daughter. PW3 testified on the contents of the bad as an iphone mobile phone valued at Shs. 1,200,000/= cash amounting to Shs. 1,255,000/= a wrist watch valued at Shs. 55,000/= and identify cards. PW3 reported the incident at Silender Bridge Police Station where she was issued with a PF3. PW4 supported PW3's story in that she was standing by waiting for her mother (PW3) as the latter walked across towards her parked motor vehicle. PW4 saw the runaway vehicle with two occupants and how one of them grabbed her mother's bag as the other kept driving. The case was investigated by one Detective Corporal Mbuya (PWl) who said he was looking for a brown Asian man and a dark 3 grant African who were using a Verosa car. One day he was informed by an informer that the vehicle had been spotted at Samora Street. It was

at night. PWl and other police officers went to the place where the fugitives were, but the said fugitives off on seeing the police. However the police arrested two women Husna Jabir and Mariam Ally who had been in their company. However the vehicle Reg. No. T 895 CPE Toyota Verosa was abandoned right there. It was PW2's testimony that Abdulratifa was supposed to return the hired motor vehicle on 11/8/2014 but he did not. Instead, PW2 received a call from the police at night requiring him to go to the Central Police Station. When he got there, PW2 was shown his vehicle and asked if he could identify it. PW2 identified the vehicle as his, and that is when he was informed by the police that it had been used in committing robbery of a hand bag from a woman. Then on 8/9/2014, PWl went to Magomeni Police Station to pick a person who had been arrested for robbery with violence. The said person turned out to be Hamidu Ramadhani, the appellant. During interrogations, the appellant confessed to being involved in the commission of many incidents of armed robberies, 4 although he did not admit being involved in the instant robbery relevant to this case. An identification parade was conducted under the supervision of Assistant Inspector Musa (PWS). According to PWS, the appellant was identified by PW3. The Identification parade Register was tendered as Exhibit P4. In convicting the

appellant the trial court linked the hired motor vehicle with the robbery then concluded that since the man to whom the motor vehicle had been hired was accompanied by the appellant and that PW3 and PW4 identified the said appellant at the scene he must have been the culprit. The court proceeded to sentence the appellant to life imprisonment. The appellant felt aggrieved by both the conviction and sentence. He has raised ten grounds in the petition. Mr. Mdegela, learned State Attorney for the respondent Republic supported, the conviction but opposed the sentence for being excessive. The appellant appeared in person but had nothing to say in support of his appeal. At the hearing the court raised the question whether the trial court observed the· provisions of Section 226 of the Criminal Procedure Act, Cap. 20 for it noted that the accused did not make 5 his defence. The learned State Attorney respondent by submitting that the provisions of Section 226 of the CPA were observed because the appellant was given an opportunity to explain why he had been defaulting and that the court overruled him. With respect, before I go into the substantive grounds of appeal, I deem it appropriate to discuss this point. To begin with, Section 226 of the CPA provides: 11 226 (1) If at the time or place to which the hearing or further hearing is adjourned the accused person does not appear before

the court in which the order of adjournment was made/ it shall be lawful for the court to proceed with the hearing or further hearing as if the accused were present; and if the complainant does not appear, the court may dismiss the charge and acquit the accused with or without costs as the court thinks fit. (2) If the court convicts the accused person in his absence/ it may set aside the conviction upon being satisfied that his absence was from causes over which he had 6 no control and that he had a probable defence on the merit. " As a general rule the court may proceed with hearing in the absence of the accused and may even convict. Yet when the accused is subsequently arrested or he turns up, the court may set aside its conviction and hear the accused's defence. In this case, the accused was absent on 23/11/2015 when PWl testified and on 3/12/2015 when PW2 testified. He was however present on 23/3/2016 when PW3 and PW4 testified as well as on 11/4/2016 when PWS testified. If the general rule as can be deduced from Section 226 (1) and (2) is that even when one is convicted in absentia the court may still set aside its conviction, then the question is whether the learned Senior Resident Magistrate in this case was proper in proceeding to judgment without hearing the accused's defence when he was in attendance. No wonder the appellant has raised one petirient ground of appeal,

ground No. 5 that the court did not make a finding of prima facie case. Under Section 231 of the CPA the accused has a number of rights including to make his own defence and to call witnesses. However this right is exercised after the prosecution 7 makes a finding that a particular accused person has a case to answer. The court's omission to make this finding and proceeding with judgment was, in my conclusion, a serious violation of Section 231 of the CPA. As this violation vitiates the proceedings before the trial court I must quash them. I note that the appellant was absent when PWl and PW2 testified. The record is silent as to whether the court required any explanation from the appellant. Consequently I quash the proceedings, judgment and sentence. I order a retrial before another magistrate of competent jurisdiction. 8