NGASA MINZEYA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

DODOMA DISTRICT REGISTRY

AT DODOMA DC. CRIMINAL APPEAL NO. 152 OF 2023 (Originating from Iramba District Court at Kiomboi in Criminal Case No. 53 of 2023) NGASA MINZEYA CHUMA..................................................APPELLANT

VERSUS THE REPUBLIC............................................................... RESPONDENT

JUDGMENT 9th & 18th October 2024 MASABO, J.:- The appellant is aggrieved by a judgment of the district court of Iramba in Criminal Case No. 53 of 2023 vide which he was convicted of armed robbery and sentenced to 30 years imprisonment. As per the charge sheet and the record in the lower court file, the appellant was jointly charged and convicted with Elikana Samson @Dangote (not a party to this appeal) of the offence of armed robbery contrary to section 287A of the Penal Code Cap. 16 R.E 2022. It was alleged that on 7th May 2023 during night hours at Jadi Gold Mining Plant, Kisonga village within Iramba District in Singida Region, the accused persons willfully and unlawfully stole carbon materials containing 650 grams of gold valued at Tshs. 7,800,000/= the property of William Samwel Igogo. Before and after such stealing, they used bush knives in order to obtain and retain the said property. Each was sentenced to a jail term for 30 years. Page 1 of 8 Aggrieved by the conviction and sentence, the appellant filed the present appeal armed with five grounds of appeal which I shall conveniently summarize as follows: One, the offence of armed robbery was not proved. Two, the trial court did not properly evaluate the evidence adduced by prosecution witnesses. Three, the appellant confessed to have committed the offence following torture inflicted on him by police officers. Fourth,

the watchmen could not have been overwhelmed by a bush knife as they were armed weapons. Five, the stolen property was not presented before the court as an exhibit. When the appeal came for hearing the respondent was represented by Ms. Miyango Kezilahabi, learned Senior State Attorney whereas the appellant fended for himself. Invited to address the court in support of his appeal, the appellant adopted his grounds of appeal to form part of his submission and prayed that they be positively considered. On her part, Ms. Kezilahabi, learned Senior State Attorney for the respondent, supported the appeal arguing that the offence against the appellant was not proved. She gave the following reasons in support pf her । stance. First, the evidence produced in court was based on a defective charge. The charge sheet show that the appellant was charged with armed robbery but the particulars of the offence did not show who the victim! was. It did not show who was threatened with the bush knife. All it stated was that the owner of the carbon material was William Samwel Igogo. In fortification of her submission as regards such non-disclosure and the consequences thereto, Ms. Kezilahabi cited the case of Masumbuko Mhoja Page 2 of 8 and another vs R, Criminal Appeal No. 435 of 2017[2022] TZCA 500 TanzLII. She argued that, in this case, it was held that failure to disclose the person against whom

the threat was directed in the particular offence is fatal and cannot be cured by evidence. This principle, she argued, is applicable in the present case because the charge sheet before the trial court did not disclose the name of the person who was threatened. Hence, it was defective and the defect is incurable. i J 1 Second, the evidence brought in court was highly wanting. There' was neither an eye witness to the offence of armed robbery nor circumstantial evidence implicating the appellant. The only evidence available' was suspicions and as per the law, suspicion however grave cannot ground a conviction in a criminal case as stated in MT 60330 PTE Nassoro Mohamed Ally vs R, Criminal Appeal No. 73 of 2002 (Unreported). Therefore, this appeal must succeed as the available evidence i was i insufficient to support a conviction against the appellant. Lastly, it was argued that the admission of the appellant's caution statement that was relied upon by the court to convict the appellant was objected as seen on page 9 of the proceedings. When it was tendered for admission the । I I appellant objected to it stating that it was not voluntarily procured as before giving it he was severely tortured. Procedurally, the court had to stop I everything and conduct an inquiry to determine its voluntariness or otherwise but it did not. Ms. Kezilahabi contended that this was a fatal error and

it rendered the caution statement invalid and liable for expungerpent. When the caution statement is expunged, she argued, there will remain no Page 3 of 8 sufficient evidence to sustain the conviction. Resting her submission, she prayed that the appeal be allowed and the appellant be discharged with immediate effect as the case against him was not proved. The appellant had nothing to rejoin. Having considered the submissions by the parties and thoroughly read the record from the lower court, I will now proceed to determine the appeal. The main issue for determination is whether the case against the appellant was proved. Since the respondent has supported the appeal, I prefer to start with the first ground of appeal, based on which the appeal has been supported. As correctly submitted by Ms. Kezilahabi, the record shows that the appellant was charged with armed robbery. This offence is a creature of section 287A of the Penal Code which provides as follows: '287A. A person who steals anything, and at or immediately before or after stealing is armed with any dangerous or offensive weapon or instrument and at or immediately before or after stealing uses or threatens to use violence to any person in order to obtain or retain the stolen property, commits an offence of armed robbery and shall on conviction be liable to , imprisonment for a term of not less than thirty years with i or

without corporal punishment". [Emphasis supplied]. This provision has been extensively litigated and there is a plethora of authorities on its essential ingredients. I will only cite a few. As it shall be demonstrated in the cited authorities, it is now settled that the presence of a threat or use of violence and the person to whom that threat or violence Page 4 of 8 was directed, are essential ingredients of the offence of armed robbery and in their absence, a conviction of armed robbery cannot be grounded or sustained as the charge would be deemed defective. This was extensively discussed in Masumbuko Mhoja (supra) where the Court of Appeal ; while interpreting the provisions above stated that: j "Our understanding of the quoted provision is to the effect that among the requirements for the charge of armed robbery to stand is the presence of a threat or use of violence being one ! of the essential elements, and further, to show in the particulars of offence the person to whom that threat or violence is directed. Short of it the charge is rendered defective." Cementing this position, the Court cited with approval its previous decision in the case of Mnadi vs Republic, Criminal Appeal No. 78 of 2011(unreported) and Angulile Jackson @ Kasanya vs DPP, Criminal Appeal No. 162 of 2019 [2022] TanzLII. Reminiscing these cases, the Court held that in Kashima Mnadi (supra) while

dealing with a charge sheet which did not indicate the person to whom the threat of violence ;was directed it held that:- "Having carefully read the charge reproduced supra and the cited section, we are of the settled view that the charge is incurably defective. It is incurably defective because the essential ingredient of the offence of robbery is missing. Strictly speaking for a charge of any kind of robbery to be proper, it must contain or indicate actual personal violence or threat to a person targeted to be robbed. So, the particulars of the offence of robbery must not only contain the Page 5 of 8 violence or threat but also the person on whom the actual violence or threat was directed. This requirement is provided under section 132 of the Criminal Procedure Act, Cap. 20 R.E 2002 so that to enable the accused person know the nature of the offence he is going to face. "[Emphasis added]. In a similar vein when dealing with an akin situation in the offence of robbery I in the case of Munziru Amri Mujibu and Another vs The Republic Criminal Appeal No. 151 of 2012(unreported), the Court of Appeal, instructively held that: "Strictly speaking, for a charge of any kind of robbery to be proper, it must contain or indicate actual personal violence or threat to a person on whom robbery was committed. Robbery as an offence, therefore, cannot be committed without the use of actual

violence or threat to the person targeted to be robbed. So the particulars of the offence of robbery must not only contain the violence or threat but also the person on whom actual violence or threat was directed." Guided by these authorities while scrutinizing the charge sheet which:was placed at the door of the appellant, I have observed that, it contained the following particulars: "PARTICULARS OF OFFENCE ELIKANA S/O SAMSON and NGASA S/O MINZEYA CHUMA are jointly and together charged on 07th May, 2023 during night hours at Jadi Gold Mining Plant, Kisonga Shelui village within Iramba District in Singida Region, willfully and unlawfully did steal Carbon Materials that contain 650 Page 6 of 8 grams of Gold valued at Tshs. 78,000,000/=, the properly of William S/O Samwel Igogo before and after such stealing did use bush knives in order to obtain and retain the said property." It is evident from these particulars that, as rightly submitted by the learned Senior State Attorney, the charge sheet was seriously wanting. Although it is stated that the appellant and his co accused used bush knives in stealing and retaining the carbon materials, it is not disclosed whether the bush knives were used for threatening or exerting actual violence. The name of the person to whom the threat was directed was also undisclosed. Going by the authorities above, the omission of these two essential

ingredients is a fatal irregularity rendering the charge sheet incurably defective because, as per Kashima Mnadi vs Republic, (supra), Munziru Amri Mujibu & Another vs Republic, (supra) and Angulile Jackson @ Kasonya vs DPP, Criminal Appeal No. 162 of 2019 [2022] TZCA 66 TanzLII, such defect cannot be cured by evidence. In the latter case it was held categorically that: We therefore agree with Ms. Mushumbusi that the charge under consideration is wanting for failure to mention in the particulars of the offence the person to whom the threat or violence was directed at the time of the commission of the offence. This omission is fatal and it cannot be cured under section 388 of the CPA. On top of that, going by the dictates of section 132 and 135 (a) (ii) of the CPA, we are enjoined to agree with the learned ! State Attorney that the omission was prejudicial to the ! appellant which amounted to an unfair trial to the appellant as he could not be in opposition to prepare his defence. Page 7 of 8 In totality of the above and on the strength of the above authorities, I have found merit in the appeal. In consequences I allow it, nullify the trial court proceedings and quash its judgments. The conviction and sentences passed against the appellant, Ngasa Minzeya Chuma, are also set aside. It is further ordered that he be released from prison forthwith unless he is otherwise held for other lawful reasons. DATED and delivered at DODOMA this 18th day of October 2024. J. L. Masabo

JUDGE Page 8 of 8