20140321 TZCA Arusha

IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA (CORAM: OTHMAN, C.J.,RUTAKANGWA, J.A., And LUANDA, J.A.) CRIMINAL APPEAL l NO. 1 OF 2009 I I SIFAEL NICOLAUS ....... ■ I ■ I ■■■■■■■■■■• ■ 11 ■JI • • • • • • • • • I I ■■ I I • • • • • • • • • 11 ■ APPELLANT

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VERSUS THE REPUBLIC . ■• ■•■■•■ .I .... ■ I . I ••• I I •• ■■ •• ■■•■■■■ I ■■■ I ■■■ ••• ■■■' ■ RESPONDENT j. I (Appeal from the Judgment of the High Court of Tanzania at Moshi) I (Mchom~ , J.) I I Dated the 8 th day' of July, 2008 in I Criminal Appeal No. 21 of 2008 ------------

JUDGMENT OF THE COURT st 7TH November, 2011 & 21 March, 2014 OTHMAN, C.J.: In this second appeal, the appellant, Sifael s/9 Nicolaus appeals against the judgment of High Court (Mchome, J.) deliJered on 8/7/2008, I I i which dismissed his appeal. Earlier, on 19/9/2005, he had been convicted of the offence of armed robbery c/ss 285 and 286 of the Penal Code (Cap 16 R.E. 2002) by the Moshi District Court and sentenced to a mandatory 30 years term of imprisonment. 1 I I At the hearing of the appeal, , on 7/11/2011,1 the appellant, I unrepresented, appeared in person. The respondent Republic was I represented by Mr. Zakaria Elisaria, learned State Attorney • 1 The background facts giving rise t~ this appeal wJre these. At the I trial, the thrust of the prosecution case was that on 15/1/2005 at about ! 20.45 hrs, Benson Nicolus (PW2) having just returned from Taveta, met the appellant whom he knew and who volunteered to: accompany him home. While on the way, they knocked Justa Mushi's (PW5) door, greeted I her and continued with their journey. PW2 testified that when they arrived I at a water-spring, the appellant demanded money, robbed him of Tz Shs. I 680,000/= and repeatedly stabbed him with a knife on the chest and face. I In defence, the appellant denied involvement. I The trial court, on the strength of the evidence of PW2, PW4 and I PW5 held that the Appellant had been in,

PW2's company during the event. I It was not satisfied that PW2's money had been stolen. However, it I convicted him the offence of armed robbery. On first iappeal, the High I Court found no reason to differ with the trial cou rt's findings and 1 I conclusion. I Having closely examined the appellant's memorandum of appeal and I considering the submissions by the parties, we are of the settled view that I 2

I I I ! i J grounds 3 and 5 of the appeal are cru~ial to the dete mination of this .1 appeal. Ground 3 of the appeal states: i "The learned Magistrate and Appellate Jutfge ! I erred in law and fact for :failing to note j the open contradiction betweeh the charge sheet ,I I and the testimony of PW2, !the complainan1 on I the amount of money stole1'~ , j Ground 5 of the appeal reads: , I "The learned Magistrate and Appellate Ju,dge ! I erred in law and fact in convicting the Appellant I of the offence of armed robbery whilst tl(Jere ! I was nothing stolen from the complaint'~

I I I The essence of the Appellant's challenge on grounds 3 and 5 of the . I I appeal is that as there was no proof of theft of the money alleged by PW2, . I I . as concurrently held by the trial court and the High coJrt, the offence of I I 1 armed robbery had not been established iand accordingly he was unlawfully convicted. 3 For the Republic, Mr. Elisaria, who supported thJ appeal on the I reason that the visual identification conditions were unfavourable to 1 i guarantee the Appellant's unmistaken identification by i PW2, PW4 and I PW5, submitted that the whole evidence does not suggest that the incident involved any money or that any had been stolen from1 PW2. PW2 said nothing about the money to PW5, the first person who responded to his 1 alarm after having been stabbed. I We have re-examined the whole evidence. In our re~pectful view, the I appellant's correct and unmistaken identification cannot be an issue on the 1 cogent evidence of PW2, PW4 and PW5. This apart, it is on record that the I trial court was not satisfied that the prosecution had proved that the ! appellant stole Tz Sh 650,000/= during the incident. It found out that PW2's evidence had lacked support. The High Court agrieed with the trial I court's finding of fact. However, it proceeded to sustain the appellant's conviction for the offence of armed robbery. Section 285(1) of the Penal Code provides: I '!Atny person who steals anything and, 9t or immediately before or immediately after: the I time of stealing it, uses or threatens to use I actual violence to any person or property in 4

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I I I order to obtain or retain the thing stolen or i i to prevent or overcome resistance to its being I I stolen or retained is guilty of robbei:y" I I (Emphasis added). I I I i I It is trite law that one of the essential ingredients of the offence of i armed robbery contrary to section 285(1) and 286 of the Penal Code is I proof of the commission of theft. The charge sheet preferred on 19/5/2005 I I alleged that Tz Shs 650,000/= was stolen from PW2 by ~he appellant on 15/1/2005. I I PW2 gave evidence that the appellant stole Tz Shs; 680,000/= from I him. PW2 never mentioned or complained of any money having been I I stolen from him by the appellant or that he had any, to PW5, the first I i person who immediately came to his ·rescue after the appellant had I ' stabbed him. He only informed her that he had been stabbed by the I appellant. I Having closely examined the record and considerinQ of all the above, I we would agree with the trial court and the High CourtI that theft of the 1 I' alleged money had not been proved beyond all r$asonable doubt. I However, with respect, the courts below erred in law in holding the 5

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I I I appellant liable for the offence of armed robbery c/ss 2851 and 286 of the ; i Penal Code, in the absence of proof of an essential ingredient of the 1 I offence, namely, theft. With that apparent violation of a .Principle of law, , I the conviction for the offence of armed robbery cannqt stand. In the I circumstances, we are competent to interfere with the : decision of the I i courts below. Accordingly, we find merit in grounds 3 and 5 of the appeal, 1 I I which we uphold. I I I That apart, we asked Mr. Elisaria whether or not, sh~rt of the offence I of armed robbery c/ss 285 and 286 of the Penal Code, the proved material . I I facts had fully established the commission of a lesser and, cognate offence i to the one charged. He submitted that assault causing actual bodily harm I ' I contrary to section 241 of the Penal Gode was an offfence cognate to I I armed robbery, and in this instance,' had been pr9ved beyond all I 1 reasonable doubt. However, he was quic~ to point out tha t while offence of

I I I assault causing actual bodily harm carried a sentence or up to five years I imprisonment, the appellant had been in custody :or prison since I I 19/1/2005, a period of over six years. I . I We agree with Mr. Elisaria that assault causing actual bodily harm

I I I I under section 241 of the Penal Code, is a cognate offence to armed I 6 I I and that on the robbery c/s 285 and 286 of the Penal Co9e • totality of the I evidence, it had been established beyond ~II reasonable ddubt. 'l I Accordingly, we hereby invoke ~ur revisional jL:Jrisdiction under , I section 4(2) of the Appellate Jurisdiction (Cap 141, R.E.2002) to quash and l I set aside the appellant's conviction for the offence of arrtled robbery c/ss I ; 285 and 286 of the Penal Code and the sentence impos·ed. Alternatively, I we substitute thereof, a conviction for the offence of assaµlt causing actual I I bodily harm c/s 241 of the Penal Code. As the Appellant has served more 1 than five years in custody and prison, 1e sentence hiril to a term that I would result in his immediate release froril prison, unless otherwise lawfully , I held. The appeal is partly allowed. I I st DATED at ARUSHA this 21 day df March,2014 I M. C. OTHMAN

CHIEF JUSTICE I E.M.K. RUTAKANGWA

JUSTICE OF APPEAL I B. M. LUANDA US . AL I certify that this f the originkl. I 7