20091026 TZCA Dar es Salaam

1 ' ' i IN THE COURT OF AP i EAL OF TANZANIA ~ .. '••

ATTANGA . .I . (CORAM: RAMADHANI, C.J: MBAROUK, J.A And MANDIA, J.A) . CRIMINAL APPEAll NO. 23 OF 2009 SHAIBU JUMA · SAID ISMAIL BUGHE }

VERSUS

REPUBLIC RESPONDENT ( An Appeal from the Decision qt the Resident Magistrate's • . I Court at Tanga) (Lema, PRMIExt. Jur.} th dated the 11 day of;September, 20()8 : · in I ! Criminal Appeal No. 58 of 2007 ..... JUDGEMENT O l THE COURT th 10 July, 2009 .RAMADHANI, C.J The appellants were convicted by the I istrict Court of Muheza in Criminal ·case No. 310 of 2004 and were sente1ced to imprison;ent Their appeal.•.: before LEMA, PRM (Ext. Jur.) _was d1s 1ssed and henie this secon_d one_·:'. befor~ us. They were present m perso 1 an_d the respo~dent/Republ1c had . Mr. Vicent Tangoh, learned State Attorney. 1 · ,l 2 ( \ I •, • Each appellant was given an opportunity to add a ground or grounds of ·< ·. I . . '·. st appeal to his memorandum of app~al. The 1 , appellant gave an · : . I . explanation which boiled down to the de~~nce of autrefois acquit which was.·. __: ignored in the first appeal. I 11 It is true that there was Criminal Case No. 335 of 2Q04 before Tanga i District Court with ten accused persons/ but only the two appellants were I, . convicted of the charge of armed robbefy c/s 287 of the Penal Code, Cap -i' 16. It was claimed that they robbed on~ Albert Vanharts on 11 th August, 2004, and that they used fire arms to d~ so. Among the things they were 11 alleged to have robbed was one revolver with registration number SCA . I i 7780 made in the USA: which was found ,in

their possession. These two appellants appealed to the IHigh Court and MKWAWA, J., tn :~ Criminal Appeal No. 61, 62 of 2005, acqtitted them. So, they wanted to rely 1 on that acquittal to set them free in this !appeal, too. We bought their story I and adjourned to write a ruling discharging them because of autrefois 1. acquit but in the process we found that ~he two cases are not one and the . ' same thing. So, we re-opened the heari1g. ) In the current appeal the appellants were charged with three counts: One, r . . armed robbery c/ss 285 and 286 off, the Penal Code. Two, unlawful !i possession of fire arms c/ss 34(1 ), (2) a9d (3) of Arms and Ammunition Act, Cap 223. Three, unlawful possession cif ammunition c/ss 4 and 34(1 ), (2) '. and (3) of the same Act, Cap 223. 3 I \ . I . . th It was alleged that on 29 August, 2004:, they robbed Charles Kihiyo and his wife (PWs 1 and 2). It was also 61aimed that they were found in ., - : i possession of a revolver registration No~ BCA 7180 USA and a short gun .) with registration No 337166. . . Mr. Tangoh, and rightly so, did not suppi;>rt convictions on counts 2 and 3, that is, unlawful possession of firearni!s and bullets. He said that the 111 • prosecution of those two counts required the written assent of the Director I of Criminal Investigation or they had to ~e tried in Economic Crimes Court. None had been done. Therefore, those

charges were illegal. It was held by this Court in Robi and Jwo Others, v. R. Criminal Appeal I No. 152 of 2005 (Mwanza Registry, unreported) that the trial was a nullity because of a similar oversight and thJ proceedings and the sentences meted out were set aside. What remained is count 1, robbery wi~h violence. Here the question is I 1: purely the credibility of PWs 1 and 2. W~ agree with Mr. Tangoh that PWs 1 and 2 were honest when they admitted that there was a third person ,. whom they did not recognize but they identified the two accused persons as the ones who broke into their shop. ~dmittedly, PW 1 was terrified and st hid himself but came out when he was ~rdered by the 1 appellant and he I gave them the money they demanded./; The whole saga took about thirty minutes while there was a 'chemli' lamr:p in the room. There was also a lot I 'i of conversation, in the course of the inci9ent, between the two PWs and the appellants when demanding money. "that same morn'ing PWs 1 and 2 I I: i' I 4 reported the matter to the Police and at about 0730: hours the two ) 1 appellants were brought to the Police Stati~n after they hal been arrested. _·:.:. · i: '. ,·. We are satisfied that the appellants wete duly identified. Therefore, we · d1sm1ss the appeal in its entirety. : I th DATED in DAR ES SALAAM, in this 26 ~ay ,I of October, 2009. . I ! . ' A. S. L. RAMADHANI CHIEF Just1cE M. S. MBA~OUK

JUSTICE OF APPEAL ,, W. S. MAJDIA

I

JUSTICE OF APPEAL \ l 5 11 .. 1 I I ·,' . j' I certify that this is a true copy of the Original. ~.:I) I ! . I .l \ ~vir N. N. C~USI

DEPUTY REGISTRAR , f A ~ 't' . . . " ..I I l .! . :i • I ••• fa 'i' l II , ' • :l i ! :I