shinda lwanda aidan kaka others vs republic 2018 tzca 272 31 august 2018

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM (CORAM: MWARIJA, J.A. MUGASHA, J.A., And KWARIKO, J.A.) .tCRIMINAL APPEAL NO. 447 OF 2015 1. SHIDA LWANDA AIDAN @ KAKA 2. HATI JAWADU @ ATHUMAN ...•..•................•....•.•. APPELLANTS 3. ISMAIL JUMA SHABANI @ MT

VERSUS THE REPUBLIC .•...........•...•.....•.•.....•...........................•...•.•• RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Kaduri, J.) dated the 10th day of August, 2015 in Criminal Appeal No. 138 of 2013

JUDGMENT OF THE COURT 21't August & 5th September, 2018 KWARIKO, J.A.: The appellants herein and one Samwel Heziboni then second accused person who is not a party to this appeal, were jointly and together arraigned before the Resident Magistrate's Court of Dar es Salaam at Kisutu with two offences of Conspiracy to Commit an Offence contrary to 1 section 384 of the Penal Code and Armed Robbery contrary to section 287 A of the Penal Code [CAP 16 R.E. 2002] as amended by Act no. 4 of 2004. Having denied the charge, a full trial was conducted and in the end they were all acquitted of the offence of Conspiracy to Commit an Offence but were convicted of the offence of Armed Robbery. However, during sentencing the record shows that it was only the appellants herein who were sentenced in respect of the offence of Armed Robbery. They were sentenced to thirty (30) years imprisonment (excluding the second accused though he was convicted). Havinq uhppn ~~ agol"lip\vpd ;;;;} ~~ uy h\1 t-ho LII\"" dedsion u\.... .:>IVI f"'If tho VI 11'- tr',=d I..IUI rf"'llirt '-VUII.. tho 1,.1'- appellants appealed to the High Court. Their appeal was not successful. The present appeal is against that decision. The particulars of the offences in the two counts before the trial court show that the three appellants and the second accused jointly and together had, on unknown date, time and place in November,

2010 within the City of Dar es Salaam conspired to commit an offence of Armed Robbery at Mbezi Beach Jogoo Area. The particulars state further that the appellants herein and the second accused did, on the 29th day of 2 November, 2010 at or about 00:05 hours at Mbezi Beach Jogoo Area within Kinondoni Municipality in the City of Dar es Salaam, steal one motor vehicle make Toyota Vista Ardeo with registration number T 176 BEJ valued at Tshs 7,500,000/= the property of one VICTARIUS SHINJE and immediately before the time of such stealing fired two bullets in the air in order to obtain the said property. The evidence by the prosecution which depended on ten witnesses can be recapitulated as follows: on the material date and time while the victim VICTARIUS SHINJE (PW2) who was driving the said motor vehicle a r....r lved rv UL his horne ~f- II~ IV II and IIU \Afhill""\ VVIIlIe; hl""\ lie; V o Sf-ill \lA1aC" Lill at the lie; oate ~UL ~"ea ho UI lie; \AI~C" vvu~ invaded u r v u- by unspecified number of bandits who ordered him and his passenger to alight from the car and lie down, an order to which they complied as bullets were fired in the air. The bandits made away with the car. PW2 reported the matter to the police who launched investigation and later was called to Kawe Police Station where he found his car without any defects. According to his evidence, he did not identify any of

the bandits as he lied down soon after the invasion. When the police visited the scene, among them being ASP MREMA (PW5) they found two spent cartilages (exhibit P2). 3 Meanwhile, on 12/12/2010 at about 00: 45 hours while the police officers, who included one INSPECfOR MSHINDE (PW6), were following another car registration no. T 200 BLV Saloon which was robbed from one NICOLAUS ASSEY they were informed that there was a car which was being driven at a high speed along Mandela road and when they wanted to intercept, it got an accident. That made it easy for them to waylay the occupants. These happened to be the first and second appellants and the second accused person. They were found in possession of assorted items which were later identified by different people including PW2 who identified his cell phone make, Samsung. These three were taken to police station where upon interrogation they confessed to the said robbery incident and many others. Their confessions led to the arrest of the third appellant whom they mentioned to be their accomplice. Their cautioned statements were taken and those of the first appellant and the second accused were admitted in court as exhibits Pi and P3 respectively. On the other hand when the third appellant was arrested, he is said to have admitted the allegations and led the police to search his house where they recovered a pistol. He allegedly

said that the same was used to rob PW2, which fact was testified to through forensic evidence of RAPHAEL 4 fVJAlRA (PW9), the Ex- Firearm Examiner with the Forensic Bureau, CID Headquarters. PW9 said that the spent cartilages were proved to have been fired from thatnestol. His report and covering letter was admitted in court as exhibits P4 collectively. Meanwhile, INSP. GILBERT (PW10), who was among the team of police that arrested the third appellant, tendered in court the said pistol no. 9970101093, three spent and five live ammunitions as exhibits PS collectively. In their defence the appellants denied to have committed the said offences and complained that they were tortured by the police so that they C UUIU fess butI.. Iin I "VOIlI. ,...,.I,-I \...Ullle:;::, ",... •...• ....• i..... VV il,... \II/h the first 11Ie: lie: III . . . p .I-le: I.. 0 . . ella I . . . +- tendered III.. I.e: IUe: e:u his III medical Ii e:UI\... I chit which was admitted as exhibit D1 to prove the torture, the third appellant tendered a letter showing that there was no loss report from any person, of a firearm (exhibit D2) that was allegedly found in his house. The appellants discredited the prosecution evidence in that the identity of the pistol was not proved as between NORINGO No. 99701093 or MACKLOV No. 99701093. At the end of the trial the trial court found that the prosecution case was proved beyond reasonable doubt. 5 The appellants' joint memorandum of appeal consists of six (6) grounds of appeal which raises four essential grounds of complaints as paraphrased below; 1. That, the appellants' conviction was based on defective charge as the person against whom the threats were directed, was not mentioned.

2. That, relevance of Exhibit P2 was not established since the prosecution did not prove the chain of custody in that respect.

3. That, Exhibit P3 being accomplice's evidence was not good evidence against the appellants.

4. That, the prosecution had failed to prove their case beyond reasonable doubt against the appellants. When the appeal was called for hearing, the appellants appeared in person unrepresented while the respondent/Republic was represented by Mr. Nasscro Katuga, learned Senior State Attorney assisted by Ms. Anna Mkongwa, learned State Attorney. The appellants opted to hear first what the State Attorney had to say concerning their appeal. 6 When Mr. Katuga learned State Attorney took the stand he commenced his submission by supporting the appellants' appeal essentially on the first ground of appeal. He conceded that the appellants were convicted on the basis of the defective charge since the particulars of the offence laid down at the appellants' door did not mention the name of the person upon whom the threats were directed. That, he said, was contrary to section 132 of the Criminal Procedure Act [CAP 20 R.E. 2002] (the CPA). He argued that the omission occasioned injustice to the appellants as they were denied the right to know the essential ingredients of the charge so that they could properly prepare their defence. Mr. Katuga submitted that, the foregoing omission is sufficient to invalidate the conviction and sentence as it was the decision of this Court in the case of SADIKI JOSEPH MSHALU & ANOTHER v. R, Criminal Appeal no. 64 of 2011 at Dar es Salaam (unreported) where it

was also held that the omission cannot be cured by section 388 of the CPA. He invited the Court to hold that the trial was vitiated and nullify the proceedings, quash the conviction and set aside the sentence and all orders arising therefrom. Mr. Katuga refrained to pray for an order of 7 retrial. He submitted that the evidence on record against the appellants is not sufficient to ground conviction. He had the following reasons: One; the confession statement of the first appellant (exhibit P1) was admitted in evidence contrary to law as the trial court ought to have conducted inquiry to determine its admissibility after the first appellant had raised an objection to that respect. Instead, that court said it would determine the admissibility of that statement in the judgment. Two; the trial court erred to admit in evidence and use the second accused's cautioned statement while that person was not in court hence the same was not tested. It is not also in record as to how the trial court proceeded in the absence of the second accused without any court order to that effect under section 226 of the CPA. Three, the said NICOLAUS ASSEY whose car was alleged to have been stolen and used by the appellants did not testify. Furthermore, the said car was different from the one which is the subject matter of this case. Four, Mr. Katuga argued further that, while PW2 did not say

he identified any of his assailants because the robbery incident took place at night, PW4 said to the contrary that the latter could identify the bandits. 8 Similarly, neither were the conditions for identification mentioned nor was identification parade conducted in that respect. Lastly, Mr. Katuga contended that PWS -did not describe the type of live ammunitions and spent cartilages that were said to have been recovered during investigation of this case. To wind-up his submission Mr. Katuga implored this Court to discharge the appellants from prison. The foregoing stance by the Republic made the appellants' position easy as they only concurred with the learned State Attorney's submission. At this point this court is supposed to decide whether this appeal has merit. We shouid state at the outset that the appeal will be disposed of by considering the first ground 'of appeal only. We agree with both parties that the charge that was laid down before the appellants at the trial did not disclose essential ingredients of the offence of Armed Robbery contrary to section 287 A of the Penal Code as amended by Act no. 4 of 2004. That section of law reads thus; 287 A. Any person who steals anything, and at or immediately after the time of stealing is armed with any dangerous or offensive weapon or 9 robbery instrument, or is in company of one or more persons, and at or immediately after

the time of :the':"5tealing uses or threatens to use violence to any person, commits an offence termed "armed robbery" and on conviction is liable to imprisonment for a minimum term of thirty years with or without corporal punishment. Whereas, the particulars of that offence in the instant case read as follows; That Shida s/o Lwanda @ Aidan Samweli s/o Heziboni. Hati s/o Jawadu (gJ Athumani and Ismaii s/o Juma @ Shaaban are jointly and together charged on the 2gh day of November; 2010 at or about 00:05 hours at Mbezi Beach Jogoo Area within Kinondoni Municipality in the City of Dar es Salaam did steal one motor vehicle make Toyota Vista Ardeo with registration number T 176 BE] valued at Tshs /j500/000j- the property of one VICTARUS SHINJE and immediately before the time of 10 such stealing did fire two bullets in the air in order to obtain the said properties (sic). It is clear' fro~ the particulars of the offence of armed robbery that the person who was threatened by the fired bullets in order to obtain the stolen property was not mentioned. This omission contravened the provision of section 132 of the CPA which provides thus; Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable

information as to the nature of the offence charged. As it can be gathered from the wording of the cited provision of the law, the particulars of the offence ought to be very clear so as to give an accused a clear picture of what he is being accused of so that he can properly prepare his defence. It follows therefore that where the particulars of the offence are short of the requirements of the cited law the 11 same renders the charge fatally defective. This position of law was taken by this Court in the case of MUSSA MWAIKUNDA v. R [2009J T.L.R 387 which was quoted in the case of SADIKI JOSEPH MSHALU & ANOTHER v. R, Criminal Appeal no. 64 of 2011 at Dar es Salaam (unreported) cited by Mr. Katuga. In MWAIKUNDA's case it was held that; "The principle has always been that an accused person must know the nature of the case facing him. This can be achieved if a charge discloses the essential elements of an ottence. // There is a piethora of authorities by this Court on the effect of faiiure of the charges to mention the name of a person against whom the threats were directed during a robbery. These are cases of KASHIMA MNADI v. R, Criminal Appeal no. 78 of 2011 at Dodoma, HASSAN JUMANNE @MSINGWA v. R, Criminal Appeal no. 290 of 2014 at Tabora and MATATIZO BOSCO v. R, Criminal Appeal no. 287 of 2014 at Tabora (all unreported) to mention but few. As rightly submitted by the learned

State Attorney, we are of the considered view that the irregularity is fatal and is not curable under 12 section 388 of the CPA thus vitiating the appellants' trial and resultant conviction and sentence and the appeal proceedings before the first appellate court, which we hereby nullify. Under normal course of events, this Court having nullified the proceedings of the two courts below, would have ordered retrial of the appellants. However, a retrial would only be ordered if it is in the interests of justice to do so; (See FATEHALI MANJI v. R [1966] EA 341). Upon reflection on the case as a whole, we agree with the learned State Attorney that an order of retrial would not be proper to make since the evidence on record is not sufficient to properly ground conviction. To echo the submission by the learned State Attorney, the prosecution evidence is discrepant as follows: One, the first appellant's cautioned statement (exhibit Pi) which was the crucial evidence the trial court relied upon to convict the appellants was not admitted in evidence as per requirement of the law. The record shows that the first appellant objected to this statement but the trial court instead of conducting an inquiry to determine its admissibility it proceeded to admit it in evidence on promise to determine its admissibility in the judgment. 13 This was contrary to law under section 27 of the Evidence Act

[CAP 6 R.E. 2002J and contrary to various decisions of this court which say that upon an objection against~fession statement, the trial court should stay the proceedings and conduct inquiry or trial within a trial as the case may. See for instance NYERERE NYAGUE v. R, Criminal Appeal no. 67 of 2010 at Arusha, ZAKARIA KAZEMBE v. R, Criminal Appeal no. 236 of 2013 at Tabora and MAKELELE KULINDWA v. R, Criminal Appeal no. 175 "Sf( OF 2013 at Tabora (all unreported). Therefore, exhibit Pi is thus bad evidence which ought not to have been used to convict the appellants. The first appellate court ought to have expunged it from the record. Two, the second accused's cautioned statement (exhibit P3) was equally admitted without being tested since the second accused was absent when the same was admitted in evidence. After all it was not known how the trial proceeded in the absence of the second accused as no any order 'was made to that effect as required under section 226 of the CPA. The record only shows that on 12/4/2011 before the trial court, the second accused was recorded absent and that was the end of it. Hence, the trial court wrongly used that evidence to convict the appellants; it ought to have been equally expunged from the record. 14 Three, neither did one NICOLAUS ASSEY whose car was said to have been found in possession of the appellants leading to revelations concerning

the commission of the present offence, testify to prove the allegations nor was the car tendered in evidence. Furthermore, the alleged car is different from the one which is the subject matter of this case. Four, there was no proven connection between the pistol that was alleged to have been used in the robbery and the one tendered in court bearing number 99701093 (exhibit PS). This is so because the number or h,no '"'ltJ'- nf the VI \..11 nictnl 1-'1""'\'\..1"1 alleqedly involved in tho UII'- I,IIIV'-'IV,-, III \,,11'-' t'nhhonl ''-JLJLJ'-'IT \Af~C v ..•.•...• ...., not "" I. mentioned in III ••••••••• "" •• _ .•••••• II the particulars of the offence. Five, while PW2 averred that he did not identify his assailants as it was night time and was lying down in compliance with the order of the bandits, PW4 said the latter promised that he could identify the attackers. Such contradictory account cast doubts on the prosecution case. For these shortcomings, we agree with the learned State Attorney that the order of retrial will not be appropriate because it would only amount to enabling the prosecution to fill up gaps in its evidence at the trial. See FATEHAlI MANJI v. R (supra). 15 Finally, for what we have endeavored to discuss herein we are of the settled mind that the appeal has merit as the appellants' conviction was founded on a fatanv)~ive charge. We thus hereby quash it and set aside the sentence. We order their immediate release from prison unless otherwise their continued incarceration is related to other lawful cause. Order accordingly. DATED at DAR ES SALAAM this si= day of August, 2018. A.G. MWARIJA

JUSTICE OF APPEAL S. E.A. iviUGASHA

JUSTICE OF APPEAL M.A. KWARIKO

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

DEPUTY REGISTRAR

COURT OF APPEAL 16