CRM

IN THE COURT OF APPEAL OF TANZANIA

AT MBEYA (CORAM: KOROSSO, J.A.. KENTE, J.A.. And MGONYA. J.A.^ CRIMINAL APPEAL NO. 587 OF 2021 SILVANUS HASHIMU @ NGOSHA................................................... APPELLANT

VERSUS THE REPUBLIC.............................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Ebrahim, J.) dated the 13th day of September, 2021 in Criminal Appeal No. 120 of 2020

JUDGMENT OF THE COURT 11th & 24th February 2025 KENTE. J.A.: This appeal is against the decision of the High Court of Tanzania (Ebrahim, J.) sitting at Mbeya by which the appellant's appeal to challenge his conviction and sentence of thirty years' imprisonment by the subordinate court for the offence of armed robbery, was dismissed in its entirety. On 18th August, 2016 the appellant Silvanus Hashimu @ Ngosha together with one Tuli Mahenge (not a party to this appeal), appeared before the District Court of Momba in Songwe Region (the trial court), i where they were charged with armed robbery contrary to section 287 A of the Penal Code, Chapter 16 of the Revised Laws. It was alleged that, the duo had, on 12th February, 2016 at Ndalambo Village Momba District, stolen an unspecified number of cell phones and various amounts of cash from numerous persons who were travelling to and from Sumbawanga and that, immediately before and after such stealing, they assaulted and attacked the said persons using clubs and bush-knives in order to obtain and retain the stolen properties. The appellant and his co-accused denied the charge whereupon the matter had to proceed to trial. At the conclusion of the trial, the appellant was convicted as charged while his co - accused was cleared of the charges and consequently acquitted. As stated earlier, the appellant was sentenced to the mandatory

sentence of thirty years' imprisonment. The evidence that was led in support of the prosecution case was briefly to the following effect. The victims of the appellant's and his co - accused's alleged highway robbery were, on the material day, travelling either to, or from Sumbawanga. They were on board of various motor vehicles. Apparently, in a seemingly well orchestrated manner, the appellants had allegedly set up a road block along the Tunduma- Sumbawanga highway and they would cause each vehicle coming from either direction to stop purportedly for inspection thereby creating for themselves an easy time and opportunity to cause everyone on board to alight, empty his or her pockets and surrender any item of value in his or her possession such as cash and cell phones. According to the charge sheet, the victims of the said spate of robberies who were however travelling in various motor vehicles, were Fredrick Augustino, Peter Charles, Ignas Raphael, Erick Raphael, Frank Mpaka, Diana Makalo, Deogratias Magandula and Yohana Chunguku. Except for Baraka Mwakalebela and Fredrick Augustino who appeared before the trial court and testified respectively as PW1 and PW2, the rest of the victims were not called as witnesses. Whereas Baraka Mwakalebela narrated to the trial court how he was, on the material day robbed of his cell phone TECNO make valued at TZS 70,000.00, it was Fredrick

Augustino's testimony that he was driving a Truck with registration No. T 116 CP the property of CBC Company which was coming from Sumbawanga heading to Mbeya. He narrated how, on the fateful night, after being stopped by the robbers and ordered to get out of the said Truck, he was robbed of his two cell phones and TZS 180,000.00 which were his own property and TZS 7,000,000.00 belonging to his employer being the proceeds from cold drink sales. PW2 went on to say that, on 8th March, 2016 he and his assistant one Erick Japhet were called by the Police at Tunduma to identify one of the stolen cell phones which belonged to the said Erick Japhet. He further testified that however, he was unable to recognise any of the persons that had committed the said robbery. The appellant and his co accused denied having been involved in the commission of the charged offence. The appellant testified that he was arrested upon suspicion that he was in possession of one of the cell phones that were stolen during the robbery incident the allegation which he strongly denied. He added, that there was no stolen item that was recovered from him or his residence. With regard to the allegations of being found in possession of a stolen cell phone, he challenged the prosecution side for not leading evidence showing inter alia that, the said cell phone was fully and positively identified as the

complainant's property as to justify the invocation of the doctrine of recent possession by the trial court. The trial Magistrate, having considered the evidence before him, found that the charge against the appellant had been proved to the required standard and he accordingly went on to convict him as charged. As for the appellant's co - accused, the trial Magistrate found that there was no sufficient evidence to support a conviction against him. She accordingly acquitted him. Dissatisfied with the decision of the trial court, the appellant appealed unsuccessfully to the High Court (sitting at Mbeya) in Criminal Appeal No. 120 of 2020. Dissatisfied by this turn of events, the appellant who is currently a convict serving a thirty years' imprisonment sentence, has appealed to this Court citing a litany of complaints against the decision of the first appellate court. However, as we shall hereinafter demonstrate, save for the first ground in the supplementary memorandum of appeal, recourse to the remaining grounds of appeal will not be necessary in the determination of this appeal. One point was taken by Mr. Simon Peres, learned Senior State Attorney who appeared to represent the respondent/Republic and supported the appeal. After going through the memorandum and the supplementary grounds of appeal, Mr. Peres submitted that, indeed it was quite unprocedural for the prosecution to

lump together what appeared to be several offences into one count. The learned Senior State Attorney challenged the manner in which the charge sheet was framed and subsequently submitted that, it was defective on account of duplicity. Bearing in mind the fact that a charge sheet is a foundation of the prosecution case in all criminal trials, Mr. Peres submitted that, even if there was enough evidence to connect the appellant with the charged offence, he cannot be said to have been accorded a fair trial. Elaborating, Mr. Peres submitted that, this was a situation in which a single count of which the appellant stood charged, tried to encompass multiple offenses thereby embarrassing the appellant and making it difficult for him to defend himself. The learned Senior State Attorney concluded that, in these circumstances, the case against the appellant cannot be said to have been proved to the required standard. To the learned Senior State Attorney's mind and correctly so in our view, this procedural anomaly was very likely to be dispositive of this appeal. He thus implored us to allow the appeal as urged by the appellant. For his part, the appellant who had chosen to hear the respondent's reply to his grounds of appeal after which he could make a rejoinder if necessary, had nothing substantial to say as the rest was all downhill task for him after Mr. Peres chose to support the

appeal. In the circumstances, the appellant simply urged us to allow the appeal, quash his conviction and set aside the custodial sentence meted out on him. Understandably, he could not say whether or not he was deservedly convicted. Notably, before the trial court, the appellant and his co - accused were charged with one count of armed robbery allegedly committed 6 against several victims in what appears to be a series of successive robbery incidents. The appellant claims and Mr. Peres concedes that there was duplicity of the charges as multiple distinct offences allegedly committed by the appellant and his accomplices, were combined in a single count. Now, in law, a charge is duplex where, in one count, it contains more than one offence. To that end, section 132 of the Criminal Procedure Act (Chapter 20 of the Revised Laws) (the PCA) from which the rule against duplicity arises, provides that: "Every charge or information shall contain, and shall be sufficient if it contains a statement o f the specific 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". Taking cognizance of the fact that there could be in one transaction several criminal acts committed against more than one person such as in highway robbery cases as it happened in this case,

the Legislature made it clear in section 133 (1) of the CPA, thus: "Offences may be charged together in the same charge or information if the offences charged are founded on the same facts or if they form or are a part o f a series o f offences o f the same or a sim ilar character". In the instant case, going by the particulars contained in the charge sheet and the evidence led in support of the prosecution case, there is no gainsaying regarding the fact that, the appellant and his alleged confederate were charged with numerous criminal acts that were allegedly committed not only against several victims in distinct incidents but also in some instances, the said criminal acts were completely far and separate as, in line with the evidence, the perpetrators of the charged offence had to wait for another motor vehicle to arrive after they allegedly robbed the occupants in the previous vehicle. In such circumstances, one would have expected the prosecution to lay their charges in terms of the earlier quoted section 133 (1) of the CPA which provides for joinder of counts in one charge or information. But then we are digressing as, just as it turned out, the prosecution erroneously lumped together all the distinct acts of robbery in one count thereby making it quite difficult for the appellant to know precisely what he was being accused of and to mount a meaningful defence. With due

respect, that was erroneous on the part of the prosecution and on this, we wish to observe that, considering the nature and the apparent multiplicity of the offences with which the appellant 8 was charged, together with the number of the victims of the appellant's alleged wrongdoings, it is our respectful view that it was incumbent upon the trial court to take a proactive approach and order for compliance with section 133 (1) of the CPA. In terms of the decision of the High Court in the case of Kauto Ally v. R [1985] TLR 183 to which we were ably referred by Mr. Peres and from which we can draw inspiration, we wish to draw the attention of the magistracy in Tanzania that, whereas the correctness of the charge or information lies on the prosecution, the desirability of going through it to check on its correctness or otherwise before admitting it, is an indispensable role which cannot be overemphasized. To understand the rationale behind this requirement for a careful scrutiny of a charge sheet by the trial court before admitting it, we can but quote with approval what was stated by Sizya, J. (R.I.P) in Kauto Ally's case (supra), that: "This is not only prudent but it is also one o f the ways o f lessening the possibility o f crim inals subsequently getting away either without being punished adequately or even without being punished at all, purely on technical grounds". As a

general principle, we also wish to remind both the prosecution and magistracy of what was stated by Lugakingira, J. (R.I.P.) in the case of Nyanga Manyika V. R [1980] T.L.R 141, another decision of a persuasive value but from which we can also borrow a leaf, thus: "... in deciding whether to charge one or more counts o f the same offence, the guiding factor is what I would call contiguity o f time and place. I f the acts are far flung in the matter o f time and place it may not be possible, but indeed undesirable to charge one count". [Emphasis added]. Coming to the instant case, as stated earlier, it is plain that the acts constituting the offence with which the appellant stood charged and of which he was subsequently convicted, were particularly diverse in time and they were committed against numerous persons who were on board of several motor vehicles heading towards the direction of either Mbeya or Sumbawabga. In line with the above holding by the learned High Court Judge, we can say without demur that, it was rather unprocedural to charge the appellant with one count in a situation where several offences appeared to have been committed. Bearing in mind the settled position of the law that a charge with a count containing more than one offence as it happened in this case, is a duplex charge, we entirely agree with Mr. Peres that the effect is to render such as charge

fatally defective. We also need to add here, for 10 purposes of emphasis that, such a defect goes to the root of the matter and it cannot be cured under section 388 of the CPA. Having found merit in the appeal, albeit on technical grounds, it is obvious that the need of considering the remaining grounds of appeal has been rendered otiose. We thus allow the appeal, quash the appellant's conviction and set aside the custodial sentence meted out on him. We order for his immediate release from prison unless he is detained for some other lawful causes. DATED at MBEYA this 22nd day of February, 2025. W. B. KOROSSO

JUSTICE OF APPEAL P. M. KENTE

JUSTICE OF APPEAL L. E. MGONYA

JUSTICE OF APPEAL The Judgment delivered this 24th day of February, 2025 in presence of appellant in person and Mr. Rajabu Msemo, learned State Attorney for the Respondent/Republic through video conference from High Court Mbeya is hereby certified as a true copy of the original. W. A. HAMZA ^ , DEPUTY REGISTRAR #' COURT OF APPEAL