20100510 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA

ATMWANZA (CORAM: MSOFFE, J.A., MBAROUK, l.A., And BWANA, J.A.} CRIMINAL APPEAL NO. 195 OF 2006 NO. A. 5204 WRD VIATORY PASCHAL ..................................APPELLANT

VERSUS THE REPUBLIC ...................................111••·························· RESPONDENT. (Appeal from the Judgment of the High Court of Tanzania at Bukoba) (Luanda, J.) dated the 20th day of lune, 2006 in Criminal Appeal No. 1 of 2003

JUDGEMENT OF THE COURT ·• ' 10th May & 12th May, 2010 BWANA, J.A.: The appellant was one of four people jointly charged with nine counts. One count was for being in possession of fire arms and ammunition contrary to section ?3 of the Arms and Ammunition Ordinance, Cap 223 read together with Sections 56 (1) and 59 (2) and paragraph 20 of the First Schedule of the Economic and Organized Crime Control Act No. 13 of 1984, as amended. The other eight counts were of Armed Robbery contrary to sections 285 and 286 of the Penal Code. The offences were alleged to have been 1 i1 committed on 28th and 30 th Marcth, 1996. The first count, that of ! being found in possession of arms land I ammunition, was comm,itted . I on 30 March, at 12:30pm at Mwanio Mgumu area of Bukoba District th ! i while the offences of armed rqbbery are said to have been I. I committed on the 28 th March, at 8:3!0am at Kyakakela area of Bukoba 1: District, Kagera region. ~ I 1· The prosecution called seven I witness in support of their case. I I It was alleged that the accused per~ons were found in possession of I I' a sub machine gun (the SMG) and thirty (30) rounds of ammunition. . ! I It was further alleged that the said SMG was used by the accused 1 1 I, persons to commit armed robb~ry at Kyakakela area where 1, passengers in a motor vehicle were rbbbed at gun point. All the accused persons denied

responsibility. At the end of I I trial, the first accused was acquitted but the other three were 1: convicted and sentenced each to serve prison term of 15 years , i' , imprisonment with two strokes of thei cane for the first count. For the 1 I I armed robbery, each one was sentehced to a prison term of thirty I! I (30) years imprisonment. The senten~es were to run concurrently. 2 In the course of writing his judgement, the trial magistrate considered the issue of the eight diifferent counts of armed robbery against each accused person. He came to the conclusion that the accused persons should have been charged with only two counts - that of unlawful possession of fire arms and the other, that of armed robbery. He then proceeded to deliver his judgment along those lines. Out of the three convicted persons, only the present appellant appealed to the High Court against both conviction and sentence. Before proceeding with the hearing of the appeal, the first appellate court judge (Luanda, J. as he then was) considered a procedural issue that had arisen. The same issue has occupied our minds. The issue before Luanda, J. (and before us now) was whether the court can amend the charge sheet at the stage of writing a judgement. Apparently the trial magistrate had amended the charge in the cause of writing the judgement. The accused persons, therefore, were not accorded an .opportunity

to enter their pleas as 3 required under section 234 (2) of the iriminal Procedure Act, 1985, (the CPA). F~r ease of reference, ~e repiroduce tha.t provison: 0 '.5. 234 (2). ....... Sub1ect to subsection (1) where a charge is altJred under that subsection- (a) the court shkll there upon call I upon the accused person Ito plead to the altered charge'. (b) ...... (Emphasis provided.V The said sub section (1) of section 234 of the CPA states: "where at anv stage of a ,rial, it appears to I the court that the charge is defective either in substance or form/ the court may make such an order for alteration of the charge either by way of amendmeAt of the charge or substitution or addition of a new charge as the court thinks necessary .... having regard to the merits of the c. ·se/ the required amendments cannot bJ made without iniustice ..... "(Emphasis ad~ed.) Since the accused persons were notlcalled upon to plead to the altered charge at that late stage of th: ir case, Luanda, J, held that 4 the amendment to the charge was not ·one at an appropriate stage.: I I We subscribe to that finding/holding. He/ then invoked section 373 (1} 1 1 ! I I (a) of the CPA and vacated the judgennent. The sentences imposed I I against the appellant were set aside. Upon satisfying himself that there were sufficient materials on i i the record of the case, Luanda, J. j'proceeded to write another I

I judgement, in place of the one vacate '. It is against this judgement by Luanda, J. that the appellant has Jme before this Court, raisinQ nine grounds in his memorandum of Jppeal. The epicenter of those t grounds of appeal may be said to b~ identification and cautione~ statement. The appellant appeared in prson while the respondent Republic was represented by Mr. Edga Luoga, learned Senior State 11 I J! Attorney. The said respondent did not support the conviction of the I I appellant as will be shown shortly. The issue of visual identification forms the basis of this appeal. ! I , I It is, in a nutshell, the appellant's averment that he was not adequately identified at the scene of 'crime. Further, he shows that 5 he did not lead the police to the site wh: re the SMG was hidden. One of the co-accused persons did so. Mr. Luoga gave three reasons why he did not support the conviction of the appellant. The thrJe reasons raised touch on identification of the appellant; the rJrieval of the SMG and the cautioned statement. On the first issue, that of iden ;ification, it was Mr. Luoga's submission that conditions at the scJne of the robbery were not favourable for adequate visual identifiJtion. I It is on record that there was gun fire, followed by an ordeJ from the assailants to all passengers in the vehicle to come o~t, lay down with their face~ I facing the ground. None of the

witnesses testified to have known the appellant before the date and time of ~he robbery. It is Mr. Luoga's further submission that the whole sag~ took the victims by surprise so much that the possibility of mistakln identity could not be ruled out. Therefore it would be unsafe to sustain a conviction on such evidence. He cited the decision of thi Court in the case of Ayubu Zahoro vs Republic - Criminal Appeal No. 177 of, 2004 .6 I (unreported).We are in agreement with the views expressed by Mr. I Luoga on this issue of visual identific~tion. Indeed the conditions I existing at the scene of the robbery were not favourable for adequate I i' visual identification. They did not meet the necessary guidelines as I I enunciated in the Waziri Amani (1980) TLR 252 case and I subsequent decisions of this Court on the issue. In our judgement therefore we are of the settled view j that it would be unsafe to sustain a conviction based on such evid~nce. 1: The foregoing views are cemented further by the fact that it I was not the appellant who led a team 6f policemen investigating the I matter to the scene where the SMG ~sed in robbery, was hidden. According to the evidence on record it was the second accused (Emmanuel Rutha) who informed the police and led them to the place where the SMG was hidden. In the course of investigations the appellant was found in 1 possession of shs. 400,000/= in

his Jackets. He insisted that the I,'I I money was his. He was a merchant. Trere was no cogent evidence I I to show that the said money was part !Of the loot from the robbery. 7 1". There was a request that an order be,: made to the effect that the I shs. 400,000/= be handed back to the fppellant. We intend to order 1 so. On the question of cautioned statements it was Mr. Luoga's ~ ' submission (and correctly so in our considered view) that the said, statements were not recorded in complilnce with the requirements of I either section 57 or section 58 of the CT. I As such, they could not b~ relied upon in sustaining a conviction. . Taking into consideration our reasbning shown above regarding I.I i ' identification, retrieval of the SMG and ~he cautioned statements, this • l !: . : appeal should succeed. We, accordinglYJ, allow the appeal, quash the conviction and set aside the sentence~ imposed. We further ordet I that unless the appellant is otherwise 1jwfully held, he should be set I free forthwith. Our attention was drawn to the ~rders by the trial court date'! 6th August, 1999 (at p.253 of the retard). We believe that those orders should have been vacated by Iuanda, J, together with th~ judgement of the trial court as shown ~arlier in this judgement. ThiS I 8 i ·I I; is because, in our view, the said orders lmanate from the judgement of the trial court. Therefore they could

not remain intact while the, said judgment had been vacated. Since the High Court did not Jndorse those orders in its I' subsequent judgment or impose fresh pnes, we state in conclusion I j that those orders (at p. 253 of the reFord) were vacated as well: Therefore the shs. 400,000/= found in! possession of the appellant; !' ( exh. P. 8 as tendered and recorded at p. 85 of the court record} i should be returned to him. DATED at MWANZA, this 10th day nf May, 2010. I J. H. MSOFFE

JUSTICE OF APPEAL i M.S.MBAROUK

JUSTICE OF APPEAL I I' I! S. J. BWAN~

JUSTICE OF APPEAL 9 '· '' 10 /. i ·' I.