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\ ,... IN THE COURT OF APPEAL OF TANZANIA

ATMWANZA (CORAM: RUTAKANGWA, J.A.,MASSATI, J.A., And MUGASHA, J.A.) CRIMINAL APPEAL NO. 220 OF 2014 SAMWEL MARWA ROSWE @ MASABA ............................. APPELLANT

VERSUS THE REPUBLIC .......................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Bukuku, J.) dated the 11th day of lune, 2015 in Criminal Appeal No. 4 of 2014 ....•.....

JUDGMENT OF THE COURT 18th & 21 st October, 2016 MASSATI, J.A.: The appellant and another person whose first appeal was allowed by the High Court (Mwangesi, J.) was convicted of two counts of conspiracy to commit an offence, and armed robbery, contrary to sections 384 and 287 A of the Penal Code. His appeal was dismissed in its entirety by Bukuku, J. on 11/6/2015. He has now come to this Court in a second appeal. The brief facts that led to the present appeal are that one LILIAN w/o ABIHA EMMANUEL PW1, runs a grocery at her house at Nyangoto village. One Agaton s/o Agustino Katikilo was her employee. On 20/6/2011 two persons visited the grocery. First at 2.00 p.m. and then at 8.00 p.m. (20.00 hrs.). When they visited the second time, they were armed with guns and local made 1 weapons. By use of the said arms, they took away 2 cell phones (Nokia) worth 140,000/= belonging to Katikilo and several airtime vouchers, worth Tshs. 125,000/=, one handset worth Tshs, 100,000/= and a bottle of gin called Konyagi worth Tshs. 15,000/= the properties of PWl. In the course of the robbery a watchman one MWIKABWE S/O MWITA WAGARA was injured. After this, the bandits vanished. The prosecution case was that the appellant was one of the bandits. So, after some investigations, the appellant and his colleague aforementioned were charged with three counts. The charges looked like this:

CHARGE SHEET

NAME AND TRIBE OR NATIONALITY OF THE PERSON(SJ CHARGED 1. SAMWEL 5/0 MARWA ROSWE@ MASABA TRIBE· KURYA AGE:45 YRS OCCP: PEASANT RELG: CHRISTIAN RESD: KETAWASH VILLAGE 2. MAR/BA 5/0 CHACHA GESABO MARWA @ AMOS MAR/BA TRIBE· KURYA AGE·43 YRS ACCP: PEASANT 2 RELG: CHRISTIAN RESD: KANGARIAN VILLAGE 1STCOUNT: STATEMENT OF OFFENCE: Conspiracy to commit offence c/s 384 of the penal code CAP 1 Vol. 1 of the laws. PARTICULARS OF OFFENCE: That SAMWEL S/O MARWA ROSWE @ MASABA and MAR/BA S/O CHACHA GESABO MARWA @ AMOS MAR/BA are jointly and together charged at the unknown time, date and place within Tarime District in Mara region did conspire to commit offence to wit armed robbery. .1'1° COUNT: STATEMENT OF OFFENCE: Armed robbery c/s 287A of the penal code CAP 16 Vol. 16 of the laws. PARTICULARS OF OFFENCE: that SAMWEL S/O MARWA ROSWE @ MASABA and MAR/BA S/O CHACHA GESABO MARWA @ AMOS MAR/BA are jointly and together charged on 2dh day of June 2011 around 20:00 hrs. at Nyamongo area within Tarime District in Mara region did steal two mobile phones made NOKIA valued at Tshs. 140,000/= the property of one AGATON S/O AUGUSTINE KA TIKILO and immediately 3 before or after stealing did use fire arm and bush knife to obtain or retain such property. f°COUNT: .STATEMENT OF OFFENCE: Armed Robbery c/s 287A of the penal Code CAP 16 Vol. 1 of the laws. PARTICULARS OF OFFENCE: that SAMWEL 5/0 MARWA ROSWE @

MASABA and MAR/BA S/O CHACHA GESABO MARWA @ AMOS MAR/BA are jointly and together charged on 2dh day ofJune 2011 at Nyamongo area within Tarime District in Mara Region did steal air time vouchers valued at Tshs. 100,000/= cash money Tshs. 125,000/= one mobile phone valued at Tshs. 100,000/= and six bottles of Konyagi valued at Tshs. 15,000 all making the total value of Tshs. 340,000/= the property of LILIAN W/O ABIHA EMMANUEL and immediately before or after stealing such properties did use fire arm and bush knife to obtain or retain such properties. STATION ........................ . DATE .......................... . PUBLIC PROSECUTOR After a total of 8 prosecutions witnesses and 10 documentary exhibits, the trial Court found that the appellant had a case to answer. He gave a sworn evidence and denied committing the offence. As we do not intend to go into the merits of the appeal, we do not think that it is necessary to restate the 4 substance of all the evidence on record. Suffice if to say that he was nevertheless convicted and sentenced to 5 years in the first count, and 30 years imprisonment in the third count. Hence the present appeal. At the hearing of the appeal, the appellant appeared in person ready to argue his 6 grounds of appeal. The said grounds of appeal are as follows:-

MEMORANDUM OF APPEAL 1. That the essential ingredient of robbery i.e. stealing was not proved by any of the claimed victims indicated in the charge sheet.

2. That the charge sheet is silent as to who was threatened, thus the definition of robbery as stipulated by the penal code cap 16 was no met 3. That identification parade as was conducted has not conformed to the statutory requirements which are contained in police general order (PGO) No. 232.

4. That the alleged caution statement of the appellant has wrongly admitted and relied upon as though retracted by the appellant no enquiry conducted to test its voluntariness or otherwise.

5. That the alleged caution statement was recorded out of time (the basic period available to interview a suspect) in thus a violation to the CPA Cap 20 R.E 2002. 5 6. That, identifying witnesses failed to describe the appellant during and after the incident. Before he started to argued his appeal, he allowed the State Attorney to argue first, reserving his right of reply. The respondent/Republic was represented by Mr. Hemed Hamad Halfani, assisted by Ms. Subira Mwandambo both learned State Attorneys. Mr. Halfani took the lead. In a brief but focused submission, Mr. Halfani submitted that the respondent supported the appeal on the strength of the first two grounds of appeal. Starting with the second ground, he submitted that in a charge of armed robbery, it was essential to disclose the name of the person to whom the violence was perpetrated. In support he referred us to section 132(1) and item 8 of the Second Schedule to the Criminal Procedure Act Cap. 20 R.E. 2002 (the CPA) and the decision of BARTAZAR GUSTAF & ANOTHER V.R. Criminal Appeal No. 266 of 2014 (unreported). On the first ground, Mr. Halfani submitted that it was essential to prove the theft (stealing) before proving robbery. He referred us to the decision of this Court in DICKSON LUVANA V.R Criminal Appeal No. 1 of 2005 (unreported). He went on to submit that in this case, there was no evidence of the theft. On

account of those irregularities, Mr. Halfani prayed that we exercise our revisional powers under section 4(2) of the Appellate Jurisdiction Act Cap 141 6 R.E 2002 (the AJA) to revise and quash the proceedings of the lower courts. He also prayed that there be no order for a retrial as the evidence on record was deficient. He thus asked us to set the appellant free. The appellant joined hands with the respondent's submission and had nothing useful to add. This appeal may be decided on a very narrow compass, premised from the second ground of appeal. There is no dispute that as it reads, although the name of the owner of the properties allegedly stolen is mentioned in the count of robbery, the identity of the person against whom the violence was directed is not disclosed. This is contrary to the sample form prescribed for preferring such offence as provided under Form No. 8 to the Second Schedule to the CPA that sets out the manner of stating particulars for the offence of robbery.

ROBBERY .•.....••....

PARTICULARS OF OFFENCE A.B. on the .... day of .... of ...... in the region of ...... stole a watch and at an immediately before or immediately after the time of such steeling did use personal violence to CD. This is the form which is prescribed for use under section 135 (a) (iv) of the CPA, wherein it is directed that any related charges must conform to them as nearly as possible. 7 It is now trite that omission of such an essential ingredient in the particulars of the offence of armed robbery, renders the charge fatally defective, leading to a failure of justice, which cannot be cured under section 388 of the CPA (See ISDORI PATRICE V.R. Criminal Appeal No. 224 of 2003, ZUBERI OPESHUTU V.R., Criminal Appeal No. 31 of 2003, KASHIMA MNADI V.R., Criminal Appeal No. 78 of 2011, all cited is BALTAZAR GUSTAF AND ANOTHER V.R., (supra) For the above reason which we think, is sufficient to dispose of this appeal, we are decidedly of the view that the charge laid at the appellant's doors were so defective that the trial emanating therefrom was rendered unfair. We therefore, exercise our revisional powers under section 4(2) of the AJA and revise and quash all the proceedings of the two courts below. We quash the conviction and set aside the sentence. Ordinarily after nullifying the trial proceedings, an order of retrial would follow. But in deciding whether or not to order a retrial

some principles have to be taken into consideration. The general principle is that a retrial will be ordered when the original trial was illegal or defective. It would not be ordered when conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial. The ultimate principle is that a retrial should only be made if it is in the interests of justice to do so each case depending on its circumstances. (see, FATEHALI MANJI V.R., (1966) EA 543). 8 In the present case the appellant was charged with conspiracy and armed robbery. Since his co accused at the trial was acquitted on first appeal, the charge of conspiracy which requires at least two persons to convict would not stand. As for the offence_,of robbery, stealing is also one of the essential ingredients. As Mr. Halfan has submitted, evidence of that element in the present proceedings is wanting as PW1's evidence falls far short of proving theft. In the circumstances, an order of retrial would only work more injustice to the appellant, as it would amount to a persecution, because it would allow the prosecution to fill in gaps in its evidence. We accordingly order that he be released from custody forthwith and set free, unless he is held there for some other lawful cause. DATED at MWANZA this 19th day of October, 2016. E.M.K. RUTAKANGWA

JUSTICE OF APPEAL S.A. MASSATI

JUSTICE OF APPEAL S.E.A. MUGASHA

JUSTICE OF APPEAL I certify that this is a true copy of the original. ~ITlpikya

SENIOR DEPUTY REGISTRAR

COURT OF APPEAL 9 ~ · · 1. The trial court erred in convicting the Appellants based on poor ., visual identification and /or description at the scene of the crime.

2. The trial court erred in convicting the Appellants based on Identification Parade Register ( exhibit P2) which was admitted contrary to the provisions of Section 34B of the Evidence Act, Cap 6 R.E 2002.

3. The trial court erred in admitting a caution statement (exhibit Pl) which contravened the law. At the hearing of the appeal, the Appellant fended for themselves and preferred to make their submissions after the State Attorney had made her submissions;The Respondent Republic was represented by Mrs. MosieKaima learned State Attorney who resisted the appeal urging the court to dismiss it because the trial court properly convicted and sentenced . ~ . ~ the Appellants upon being satisfiecl that the pros_ecution had proved its case beyond all reasonable doubt.·· I will start my examination of the Appellants' submissions first. It is worth noting at this stage that the 2nd ' Appellant chose to say nothing· in· addition to the grounds of appeal. As indicated earlier, the first ground attacks the judgment of the trial court for convicting the Appellan_ts based on poor visual identification. On this, the 1st appellant strongly submitted that the alleged armed robbery occurred in the night but the testimony of PW4 who is said to h_ave been in the same car with one David Mutabuzi on_ the 17ight and whose car was a subject of the said robbery did not give any satisfactory evidence regarding identification the 1stAppellant more so because, they said witness failed to identify him at the police station afew days after the alleged 2 robbery but was able to identify him more than one year

during parade identification more so the evidence of PW4 was suspicious and fell below the required threshold to warrant a finding of guilt and conviction. For his part, the 3rd Appellant, attacked the findings of the trial court in relation to identification and argued that the said witness failed to specify the date of the alleged identification neither did she give particulars of the intensity of light which enabled her to identify him. At any rate, the 3rd Appellant was not safe for the trial court to have reli~9 on such a general statement of . PW 4 who by her own words admitted that she was confused and thus unable to appreciate the events which took place on the material .night. In reply, the learned State Attorney conceded that the evidence of PW 4 was indeed not sufficient to prove that she properly identified the first Appellant but argued that notwithstanding the admission there was other evidence led by the . prosecution to prove that the 1stAppellant committed the offence together with the rest of the Appellants. Initially, the learned State Attorney submitted that such evidence included that of one David Mutabuzi who though not called as a witness is said to have identified the first Appellant at the identification parade. On second reflection, the learned State Attorney conceded that the evidence of visual identification in relation to the 1stAppellant was not

sufficient to connect himwith the offence he stood charged. As regards the other Appellants, the learned State Attorney argued that PW4 properly identified all except the 1st Appellant at the scene of the crime having spent ample timewith them and that there was enough light which enabled her identify them easily. She submitted further t~at PW4 identified the other Appellants both at the identification parade and in the dock· 3