20100720 TZCA Mbeya

IN THE COURT Ofi APPEAL OF TANZANIA AT1MBEYA . (CORAM: MUNUO, l.A., LUANDA, JJA. And MlASIRI; l.A. CRIMINAL APPEAL NO. 433 OF 2007 1. MUSA MBWAGA 2. ASKARI MLALILA •••••••••••••••••••••••••••• ~ ••••••••••••••••••••••••••• ·•••••••••••••••• APPELLANTS VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••• 1 •••••••••••••••••••••••••••~ RES PON DENT ••••••••••••• ' ' (Appeal from the decision of the High Court of Tanzania ' at Mbeya) (Mrema, l.) Dated 20th March, 2006 • I', m {DC) . Criminal App~al : No. 89 of 2004 ',, JUDGMENT OF, THE COURT JULY 19 & 212010 MJASIRI, J.A.: The appellants, Musa Mbwaga and Askari Mlalila, were each sentenced to a jail term of 30 years and six strokes by t~e District Court of Chunya, consequent upon their convicttbn for the offenc~ of armed robbery contrary to sections 285 and 286 of the Penal Code Cap ~6 R. E. 2002. The 1 appellants were dissatisfied with the trial Court's decision, so they appealed to the High Court Mbeya but their effort there was unrewarded. Mrema, J. dismissed their appeal entirely and the appellants have now come to this Court, on a second appeal. They appeared on their own, while Mr. Vincent Tangoh learned Senior State Attorney, resisted the appeal on behalf of the respondent Republic. Briefly, the facts of this case ,are as follows: The appellants were alleged to have invaded the house of one Watson Mwashiwanda (PWl) on February 2, 2004 at about 02:30 hrs at Chunya District, and stole property valued at Tshs. 870,000. They used violence in the cause of stealing causing injury to the victims. The appellants were found with some of the stolen property upon their arrest on the next day, including a radio cassette. On perusal of the record it has come to our attention that the first appellant, Musa Mbwaga had escaped from police custody. The Court therefore proceeded in his absence under section 226 of the Criminal 2 Procedure Act, Cap 20 R.E. 2002. However, before the commencement of the trial the prosecution substituted the charge against the appellants who were subsequently charged with the offence of armed robbery. The new charge was never read to the 1st appellant, who .was absent and he therefore did not have an opportunity co enter any plea. In view of the substitution of the new charge sheet which the 1st appellant did not plead, was it proper for the Court to proceed with the trial under Section 226 of the Criminal Procedure Act? Section 228 (1) of the Criminal Procedure Act provides that the substance of the charge shall be stated to the accused person by the Court, and he shall be asked whether he admits or denies the truth of the charge. Given the circumstances, we are of the view that it was not proper for the Court to proceed under section 226 of the Criminal Procedure Act. Failure to take the 1st appellant's plea vitiated the proceedings subsequent thereto. In Naoche Ole Mbile v. R 1993 TLR 253, the Court held that 3 non-compliance with the provisions of section 228 of the Criminal Procedure Act, Cap. 20 R.E. 2002 renders the proce~dings a nullity. The Court held the same in the case of Thuway Akonaay v. R 1987 TLR 92. We are therefore compelled to invoke our revisional ppwers under section ' I 4 (2) of the Appellate Jurisdiction Act Cap 141 R.E. 2002. The proceedings in the district Court against the first appellant are hereby nullified. The matter should be taken back to the District Court wher,e it would be up to ' the prosecution to decide whether or .not to prosecute the 1st appellant, I I after considering the time factor and the availability of witnesses . . In view of our findings, we shall proceed with the appeal in respect of the second appellant only, that is Askari Mlalila. The 2nd appellant filed only one ground of appeal ~hich is basically a complaint on the severity of sentence. ·According to his memorandum of I appeal he should have been convicted ofthe offence of robbery. 4 Mr. Tangoh strongly supported the conviction of the 2nd appellant. He I nd submitted that the 2 appellant was properly identified by PW 1 and PW 2, ' the victims with the aid of electric ',light. Both witn'esses had met the I appellant before, as he had been to tpeir home before the robbery. They also both testified that the appellant ~as carrying an ir;on bar. Mr. Tangoh I also stated that the 2nd appellant was 'found in possession of stolen items I , I the next day after the incident. He was found in possession of a Sony radio 1 cassette and a piece of cloth which was used by PW 1 'and PW 2 to cover I, I I their radio cassette. In view of the fa~t that the app~llant was found in I , I possession of the stolen items immed\ately after the armed robbery the ' I I doctrine of recent possession would app'ly, he submitted; The crucial issue in this appeal is ~hether or not there is basis for us I to interfere with the concurrent findings of fact by the ':courts below that the evidence of PW 1 and PW 2 establis~ed the 2nd appel,lant's guilt beyond reasonable doubt. 5 In a case such as this one, pr6per identification of the accused person is crucial in proving a criminal charge. It is important to ensure that any possibility of mistaken identity is eliminated before a conviction can safely lie. See the case of Waziri Amani v. Republic 1980 TLR 250, Raymond Francis v. R 1994 TLR 100. See also Abdallah bin Wendo and another v. Rex (1953) 20 EACA 1l6. This is a second appeal. The Court_ may only interfere with finding of facts by the Courts below where it is shown that there has been a misapprehension of the evidence, a miscarriage of justice or a violation of some principle of law or practice. See Ambrose Severin Lekule@ China v Republic Criminal Appeal No. 145 of 2007, unreported. See also Edwin Mhando v. Republic 1993 TRL 170. The 2nd appellant was found barely a day after the robbery in possession of property which had been stolen from PW. 1 and PW 2 the previous night. He did not give any reasonable explanation how he came by those things. 6 The doctrine of recent possession', is to the effect that a person who 1 1 is found in possession of property whi~h was recently :stolen and who is unable to give a reasonable explanatiora on how he car+ie by those things I was the thief or a guilty receiver. It :was a fair infe~ence that the 2nd I I I appellant was one of the persons who cpmmitted the ropbery in the house of PW 1. i Both the trial Court and the first ~ppellate Court were satisfied that there could have been no possibility of mistakeni identity in the I I circumstances of the case and we respectfully agree with Mr. Tangoh's i I submission on this score. The first appellate Court found no reason to differ I. I from the trial Court's assessment of PW' l's and PW 2 's :credibility and we I ' I · are satisfied, on the evidence that we are unable to fault that view. I ' I ! nd We are . satisfied that there is sufficient I evidence toI warrant the 2 I appellant's conviction, and as the seratence l imposed II is the statutory I minimum, we cannot disturb that. 7 I th DATED at MBEYA this 20 day of Julr, 2010. E.N.MUNUJO : ..; '~ JUSTICE OF AIPPEAL B. M. LUAN.DA JUSTICE OF A:PPEAL 1 S. MJASIRI ,, JUSTICE OF ~PPEAL --=::--l.._)u):. Ck~ I. ( Ki u~i SENIOR DEPUTY REGISTRAR I' .i 8