julius kalunga samwel siame vs republic 2014 tzhc 2071 12 august 2014

IN THE HIGH COURT OF TANZANIA

AT SUMBAWANGA DC CRIMINAL APPEAL NO. 8 OF 2012 (Appeal from the decision of the District Court of Sumbawanga in Original Criminal Case No. 262 of 2011)

JULIUS KALUNGA SAMWEL SIAME > ................................APPELLANTS Versus i «E R E P U B L IC ..... ................................. RESPONDED i 15th June & 27th August, 2014

JUDGMENT MWAMBEGELE, J.: In the District Court of Sumbawanga at Sumbawanga, the appellants Julius Kalunga and Samwel Siame, were charged/ together with three others, with three counts of, first, conspiracy to commit an offence c/s 384, secondly, housebreaking c/s 294 (1) and thirdly, stealing c/s 265, of the Penal Code, Cap. 16 of the Revised Edition, 2002. Without being convicted, they were sentenced to serve a fourteen year imprisonment. The learned trial Resident Magistrate did not mention the count in respect of which the appellants were sentenced, but the sentence were ordered to run concurrently. Dissatisfied, the appellants have lodged a joint appeal in this court advancing six grounds of grievance. The six grounds can conveniently be summarised in the first ground of appeal which states that the case against the appellant was not proved beyond reasonable doubt. Both appellants fended for themselves when this appeal was argued before me on 18.06.2014 during which Mr. Mwandoloma, learned State Attorney appeared for and on behalf of the respondent Republic. On arguing the appeal, both appellants prayed to adopt and rely on what they stated in the Memorandum of Appeal earlier filed and to my mind rightly so as the six grounds of appeal have presented in a rather verbose manner; running through 2Vi typed pages. The learned State Attorney partly supported the appellants'

appeal submitting that there was a procedural irregularity in this case that made the judgment a nullity. The learned State Attorney submitted that the appellants were not convicted before being sentenced. He was of the view that this was a fatal ailment as it contravened the provisions of section 235 (1) of the Criminal Procedure Act, Cap. 20 of the Revised Edition, 2002 (henceforth "the CPA") and made the judgment a nullity. To augment this proposition, he cited the decision of this court of Cosm as B w ire M a fu ru Vs R, DC Criminal Appeal No. 21 of 2011 (Sumbawanga unreported) in which the court restated the need to adhere to these mandatory provisions. The learned State Attorney also submitted that the evidence of Kelvin Pesambili PW2; a witness aged 8 was taken without conducting a voire dire as required by the law. He relied on the decision of the Court of 2 Appeal of S a id H am /s Vs R Criminal Appeal No. 175 of 2012 (unreported) on the position that the evidence should have been taken after conducting a voire dire. The learned State Attorney also submitted that the sentence was not clear. The appellants were charged with three counts but the Court did not state in which count the appellants were convicted with and sentenced. However, the learned State Attorney submitted that even without the ailments unveiled above, the evidence adduced at the trial in support of the

charges against the appellants was sufficient to prove the case against the appellants beyond reasonable doubt. He charged that the appellants were arrested almost red handed; immediately after the offence was committed. They were arrested after following the marks of the trainer's shoes which the first appellant had put on from the locus in quo to where the appellants were. The second appellant was arrested while running away and had a sack which contained a rifle which was later identified to be PWl's. Thus, the learned State Attorney added, even if the evidence of PW2 is expunged for having not complied with the laid down procedure, the remaining evidence was sufficient to found a conviction. He therefore prayed that the judgment of the trial court be rewritten to rectify the ailments above. In rejoinder, both appellants were very brief and made evasive denials. The first appellant rejoined that the trainer's shoes referred to by the learned State Attorney were not peculiar to him; they could belong to any 3 Tom, Dick and Harry. As for the second appellant, he stated that he was not arrested while running away but when he asked the Police the way to King'ombe Village. I have keenly followed the arguments of the Respondent Republic during the hearing of the appeal. I have as well read between the lines the appellant's grounds of grievance and their few remarks at the hearing

of this appeal. Let me, firstly, start with the ailments raised by the learned State Attorney. First is the submission by the learned State Attorney to the effect that the appellants were not convicted. I have on several occasions dealt with this issue in some of my previous judgments, one of them being the M afu ru case (supra) cited to me by the learned State Attorney. I will reiterate my position in this judgment once again as I still hold the same view. As can be gleaned from the judgment of the trial court, it is no gainsaying that the trial court found the appellant guilty and, without convicting him, proceeded to ask for mitigation. This is what appears in the judgment: "... all the accused persons have been found guilty of house breaking and stealing although their roles differ and these will make their punishment differ too ... Having stated that, the court asked for mitigation, previous convictions and consequently sentenced them to fourteen years in jail. Though not clear why, the sentences were ordered to run consecutively it being stated that the offences were committed on the same day. There are two anomalies that come out clearly here. First, proceeding to sentence the accused persons without convicting them was against the dictates of the provisions of section 235 (1) of the CPA. Subsection (1) of section 235 of the CPA provides: "The court, having heard both

the complainant and the accused person and their witnesses and the evidence, shall convict the accused and pass sentence upon or make an order against him according to law or shall acquit him or shall dismiss the charge under section 38 of the Penal Code". [Emphasis supplied]. My reading of this provision makes it clear that before passing a sentence against an accused person who has been found guilty, it is incumbent upon the court to convict the said accused person first before proceeding to sentence him. A sentence which is not preceded by a conviction is, in the light of these mandatory provisions, illegal, for his subsection is couched in mandatory terms. Noncompliance of it is incurably fatal and vitiates the judgment which purports to convict the accused. [See the decisions of the Court of Appeal of O m ari H assan K ip a ra Vs R, Criminal Appeal No. 80 of 2012 S h aban Id d i Jo io io a n d th re e o th e rs Vs R, Criminal Appeal No. 200 of 2006, A m a n i F u n g a b ik a si Vs R, Criminal 5 / Appeal No. 270 of 2008 and K h a m is R a sh id S h aban Vs D ire c to r o f P u b lic P ro se cu tio n s Z an zib ar, Criminal Appeal No, 184 of 2012, all unreported decisions of the Court of Appeal. I wish to echo, by way of emphasis, what was stated by the Court of Appeal in the S h ab an Id d i Jo io io and O m a ri H assan K ip a ra cases (supra) on the mandatory nature of

this provision that by the use of the word "shall", this provision, in terms of section 53 (2) of the Interpretation of Laws Act, Cap. 1 of the Revised Laws, 2002, is couched in compulsory terms. For the sake of clarity and easy reference, subsection 2 of section 53 of the Interpretation Act provides: "Where in a written law the word "shall" is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed". It is apparent, therefore, that having found the accused persons guilty of armed robbery as charged, the trial court ought to have to convicted them before passing sentence on them. Again, as was held in Sh aban Id d i Jo io io (supra), in the absence of a conviction after finding the accused person guilty, one of the prerequisites of a judgment in terms of section 312 (2) of the Act was, therefore, missing. 6 For the sake of clarity and easy reference, once again, the provisions of subsection (2) of section 312 read: "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". And in the K ip a ra case (supra) the Court of Appeal, speaking through Mmilla, J.A., having made a toui on the authorities on this point, particularly what was discussed on the point in S h

aban Id d i Jo lo lo , instructively concluded: "... where in a judgment the trial court may have been satisfied that evidence established the guilty of the accused but did not proceed to • convict as demanded by section 235 (1) of the Criminal Procedure Act, such judgment is a nullity..." It follows therefore that, in the absence of a conviction entered in terms of subsection (1) of section 235 of the CPA, the judgment of the trial court was but a nullity. Secondly, but still on the same point, as pointed out at the first paragraph of this judgment, the appellants were charged with three counts of conspiracy to commit an offence c/s 384, housebreaking c/s 294 (1) and stealing c/s 265, of the Penal Code. However, the sentence of fourteen years meted out on the appellant did not mention the count in respect of which the sentence was meant. The sentence was certainly omnibus and therefore unlawful. Brian Slattery, in his the Handbook on Sentencing, published by the Faculty of Law of the University of Dar es Salaam, 1970, the learned author states at p. 5 as follows: "... a separate sentence must be imposed for each count. What has been termed as 'omnibus' sentence, that is, a single sentence designed to embrace all the convictions and reflect their gravity as a totality, has been repeatedly held to be illegal." The learned author makes reference to R Vs C h a rle s H e n ry M e y

e ro w itz (1947) 14 EACA 130/ M oham ed W arsam a Vs R (1956) 23 EACA 576, Sa/um u s /o D u/u Vs R, Law Report Supplement to Tanganyika Gazette, No. 5 of 1962, P. 4, R Vs R a m a d h a n is/o M risho, (1963) Tanzania High Court Bulletin n. 188, Lu cas K a tin g ish a Vs R [1967] HCD n. 263 and Jo h n N garam a Vs R [1967] HCD n. 264 as authorities for the statement of the law that an omnibus sentence is illegal. In the M oham ed W arsam a case (supra) it was held: