Ramadhani Hussein Dunga vs Republic (Criminal Appeal No. 170 of 2024) [2026] TZCA 370 (27 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: SEHEL. 3.A.. MGONYA. J.A. And KHAMIS, J.A.) CRIMINAL APPEAL NO. 170 OF 2024 RAMADHANI HUSSEIN DUNGA ..................... ..............................APPELLANT VERSUS THE REPUBLIC ....................................... .......... ...... ......... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Bweooge,^) dated the 27th day of November, 2023 in Criminal Appeal No. 15 of 2023 JUDGMENT OF THE COURT 12th February & 27th March, 2026 MGONYA. 3.A.: This is a second appeal in which the appellant is challenging the decision of the High Court of Tanzania at Dar es Salaam in Criminal Appeal No. 15 of 2023, dated 27th August 2023, which upheld the conviction and sentence meted out to him by the trial court. Briefly, the historical background giving rise to this appeal, as can be garnered from the record, is as follows: In the District Court of Bagamoyo at Lugoba, the appellant, Ramadhani Hussein Dunga, was charged with the offence of armed robbery contrary to section 287A of the Penal Code, Cap. 16 R.E. 2019 (the Penal Code). It was alleged by the prosecution that; on 19th December, 2021, at Mboga Village within Bagamoyo District in Coast Region, the appellant did steal money TZS. 200,000/= and one mobile phone, make Techno, valued at TZS. 180,000/=, the properties of one Juma s/o Said, and immediately before and after stealing, did threaten one Swedy s/o Said Oda by using a bush knife to obtain the said properties. When the charge was read over and explained to the appellant, he entered a plea of not guilty. In order to prove their case, the prosecution brought four witnesses and produced one exhibit, whilst the appellant was the sole defence witness. At the end of the trial, the trial court was satisfied that the prosecution proved the case to the required standards; thus, the appellant was found guilty of the offence, convicted, and sentenced to serve 30 years' imprisonment. Aggrieved by the conviction and sentence, he preferred an appeal to the High Court, which was dismissed, hence this second appeal. In his memoranda of appeal, the appellant brought eight (8) grounds of appeal. Seven grounds featured in the original memorandum of appeal and one in a supplementary memorandum of appeal. Those grounds can be paraphrased as follows: - 1. The conviction of the appellant was wrongly premised on recognition evidence from PW1 and PW2; 2 2. No evidence was adduced concerning the color of the purported tube light installed outside the shop , nor as to its intensity, position ; or the distance over which it provided illumination; 3. The first appellate court erred by upholding the appellant's conviction and sentence on the basis o f the prosecution's evidence that the appellant had absconded from his home. 4. Non-compliance with section 231(1) of the Criminal Procedure Act (the CPA): The appellant was not informed of his right to defense as required by law at the dose o f the prosecution's case; 5. The prosecution failed to adduce any evidence establishing that PW2 owned the mobile phone said to have been stolen from PW1, nor was any proofoffered that PW1 suffered injuries in the course o f the alleged robbery. 6. The prosecution failed to summon material witnesses who were relatives of the appellant. 7. The prosecution's case against the appellant was not proved beyond reasonable doubt; and 8. Sections 113 and 119 of the Law of the Child Act, and section 131(2)(a) of the Pena / Code were not considered when passing a sentence against the appellant When the appeal was called on for hearing, the appellant appeared in person unrepresented, whereas Ms. Janeth Magoho, learned Principal State Attorney, assisted by Mr. Said Seif and Ms. Bonasia Mollel, both learned State Attorneys, appeared representing the respondent Republic. When invited to amplify the grounds of appeal, the appellant sought to adopt the grounds of appeal and the written submission in support thereof and opted to let the learned Senior State Attorney respond first, while reserving his right to rejoin, if need be. In his written submission, the appellant argued the first, second, and third grounds of appeal to the effect that the prosecution's case against the appellant was founded entirely on the alleged visual identification evidence of PW1 and PW2. That PW1, PW2, and PW3 testified that they knew the appellant before the material date, hence, their evidence was one of recognition rather than identification of an unknown assailant. The appellant, however, submitted that, knowing a person before the incident does not automatically establish that person's participation in the commission of an offence. He argued that, PW2 failed to explain how he was able to identify him that night. By referring us to page 11, lines 5-11 of the record of appeal, where PW1 described the circumstances of the incident, the appellant maintained that, PW2 did not specify the manner in which he identified the appellant at the scene, nor did he describe the specific role allegedly played by the appellant in the commission of the offence. Additionally, the appellant submitted that PW2 did not provide any details regarding the lighting conditions at the scene. In particular, he did not state how the area was illuminated, the location and source of the light, its intensity or brightness, its color, or the extent of its illumination relative to the point of confrontation. The appellant argued that, such particulars were essential, given that the incident is said to have occurred at night. In support of his submissions, the appellant relied on the decisions in Patrick Lazaro & Another v. Republic (Criminal Appeal No. 229 of 2014) [2015] TZCA 296, Flavian Gaspal v. Republic (Criminal Appeal No. 643 of 2022) [2024] TZCA 548, Issa s/o Mgara @ Shuka v. Republic (Criminal Appeal No. 37 of 2005) [2008] TZCA 112 and Anael Sambo v. Republic (Criminal Appeal No. 274 of 2007) [2010] TZCA 222, wherein the Court underscored the need for careful and cautious evaluation of visual identification evidence, particularly where the prevailing conditions for identification are not clearly established. Submitting on the fourth ground of appeal, the appellant stated that it is on record that after the closure of the prosecution case, in terms of sections 231(l)(a) and (b) of the Criminal Procedure Act, Cap. 20 R.E. 2019 (The CPA), the trial Magistrate ought to have informed the appellant of the rights accorded to an accused person under that section. That in the record of this appeal, there is nowhere it is shown that after the trial court delivered its ruling, it informed the appellant of the rights stipulated under the said provision. By referring us to our previous decision in Cleopa Mchiwa Sospeter v. Republic (Criminal Appeal No. 51 of 2019) [2020] TZCA 287, he contended that, non- compliance of section 231(1) of the CPA denied his right to a fair trial. Arguing in support of the supplementary ground of appeal, the appellant submitted that the sentence imposed on him by the convicting court and upheld by the first appellate court is too harsh compared to his age at the time the alleged offence was committed. He further submitted that, the trial Magistrate had a duty to inquire from the appellant the date and the year he was born to satisfy himself whether he had attained the majority age. To fortify his argument, he cited the case of Vumilia Daud Temi v. Republic (Criminal Appeal No. 246 of 2010) [2013] TZCA 2206. The appellant went further arguing that, during the trial, there was no dispute that he was still a juvenile, but the trial court had not done a thorough inquiry to know whether the appellant had attained the majority age or he was about to attain the said age as per the requirement of section 113(1) of the Law of the Child Act, Cap. 13 R.E. 2019 (the Child Act). Regarding the fifth ground of appeal, which concerns proof of ownership of the stolen mobile phone, the appellant contended that, the charge sheet specified that the mobile phone allegedly stolen or robbed from PW1 was the property of PW3. However, he drew the Court's attention to the testimony of PW2 at page 13, lines 2-3 of the record, wherein PW2 asserted ownership of the said mobile phone. Furthermore, the appellant referred to the evidence of PW1 at page 10 of the record, who testified on the issue of ownership and stated that the mobile phone belonged to PW2. In his view, this testimony clearly demonstrated that the phone belonged to PW2, and not PW3, as indicated in the charge sheet. The appellant also submitted that, in respect of the money alleged to have been robbed from PW1, the evidence showed that PW2 was the rightful owner thereof. Based on these alleged inconsistencies regarding ownership, the appellant argued that the charge sheet was incurably defective. He maintained that it ought to have been amended pursuant to section 234(1) of the CPA, before the closure of the prosecution's case. In his view, the failure to effect such amendment was fatal to the prosecution's case. In support of this contention, the appellant relied on the decision in Masas Mathiasi v. Republic, Criminal Appeal No. 274 of 2009 (unreported). On the sixth ground of appeal, the appellant faulted the prosecution for failing to call his relatives as witnesses. He submitted that PW1, PW2, and PW3 testified that, following the alleged incident, a report was made to the appellant's guardian and that the appellant was arrested by his uncle. However, none of the said relatives was called to testify in support of that assertion. The appellant contended that, the omission to summon his grandmother or any other relative to whom the incident was allegedly reported, rendered the prosecution's evidence doubtful. In his view, had those relatives been called to testify, their evidence would have clarified the matters he raised in his defence and possibly dispelled the alleged inconsistencies. 8 Relying on the well-established principle that where the prosecution fails to call a material witness without explanation, the court may draw an adverse inference against it, the appellant contended that the trial court was supposed to draw an adverse inference against the prosecution after its failure to summon the material witnesses to testify on its case. To bolster his argument, he cited our decision in Boniface Kundakira Tarimo v. Republic (Criminal Appeal No. 351 of 2008) [2011] TZCA 194. In reply, Ms. Magoho at the outset declared that they did not support the appeal. She then opted to argue on the first and second grounds of appeal conjointly, where she submitted that the appellant's complaint on identification is baseless as the same was done properly. She contended that PW1 testified that outside the shop, there was a tube light with sharp light, and inside the shop, there was also a bulb. That there was no distance as the appellant approached him. She further contended that, immediately after the incident, PW1 mentioned the appellant, who was accompanied by his fellow when they invaded him. Adding to that, Ms. Magoho submitted that the appellant and the complainant knew each other as they are relatives, hence properly recognized. To bolster her submission, she cited the case of Abdul Ally v. Republic (Criminal Appeal No. 389 of 2021) [2023] TZCA 82 and Waryoba Elias v. Republic (Criminal Appeal No. 112 of 2020) [2023] TZCA 17314. Regarding ground number three, Ms. Magoho submitted that the appellant was still at his home when he was arrested. She argued that this complaint is an afterthought, as it was expected to be raised during his defense. Further, that the appellant was supposed to cross-examine witnesses on that issue, but he did not. In her view, failure to cross- examine means consent. To fortify that argument, the case of Issa Hassan Uki v. Republic (Criminal Appeal No.129 of 2017) [2018] TZCA 361 was referred to. Premising on what she submitted, the learned counsel urged us to find the ground to be meritless. On the fourth ground, the appellant faulted that section 231, now section 248 of the CPA, was not adhered to. The learned State Attorney referred us to page 30 of the record of appeal, and contended that the trial Magistrate adhered to the said section. That, it is on record that the appellant told the court that he would defend himself on oath. This indicates that he was given the right provided under section 231 of the CPA. 10 On the fifth ground of appeal, Ms. Magoho submitted that, it is on record at page 13 of the record of appeal that PW2 said he owned a stolen mobile phone and money. According to the learned State Attorney, the matter of ownership does not hold water. Moreover, she argued that this complaint was supposed to surface during the trial; otherwise, it is an afterthought. Regarding ground six, the learned Senior State Attorney argued that it was not necessary to call the appellant's relatives. That, it was the discretion of the prosecution to decide whom to call. In her view, the appellant's relatives were not material witnesses. Hence, she urged us to dismiss this ground for being baseless. Responding to the supplementary ground of appeal, Ms. Magoho submitted that the appellant was arrested when he was 18 years. Further, during the proceedings, he admitted all the facts. Hence, in her view, raising this complaint at this stage is an afterthought. She argued that according to the Child Act (in the 2019 amendment), a child is any person under 18 years, hence the appellant was not a child. Based on her submission, she implored us to dismiss the appeal for being unmerited. i i When the ball was turned to the appellant for his rejoinder, he had nothing to add; rather, he prayed the Court to consider his appeal, allow it, and set him at liberty. Having gone through the record of appeal, grounds of appeal, and the rival submissions by the appellant and the learned Senior State Attorney, the issue for determination is whether the appellant's appeal has merit. In resolving the appellant's complaint, we prefer to start with the ground predicated in the supplementary memorandum of appeal, and the remaining grounds will be determined as they appear in the original memorandum. In the supplementary memorandum of appeal, the appellant's complaint is founded on the assertion that during the trial, he was a child, hence, covered by sections 113(1), (2), and (3) of the Child Act. On our part, having perused the record of appeal and revisited the Child Act, we find the appellants complaint is misconceived and not supported by the record. Basically, the Child Act is very clear on who is a child. Section 4(1) of the law provides that: "A person below the age o f eighteen years shall be known as a child." 12 It is apparent at page 5 of the record of the appeal that during the preliminary hearing, the facts of the case, which were written in Swahili language and read to the appellant, contained among other facts, the particulars of the appellant regarding his name, age, and place of domicile, where it has been written under item 1 that: "Kwamba mshtakiwa unaitwa Ramadhani s/o Hussein Dunga, 18 yrs, mkwere, muistam, mkulima na mkazi wa Lugoba. Court: Accused has admitted facts number 1, 7, 8 and 9. He has disputed the rest" The above fact was read over to the appellant, and he admitted to its correctness. Thereafter, it is on record at page 6, that the memorandum of admitted facts was read again to the appellant, and upon his satisfaction, he signed it. The appellant did not challenge his age when the facts were read to him, stating that he was 18 years. Basically, the process of preparing and reading the facts of the case to the accused before the commencement of the hearing serves several fundamental purposes. The process aimed, among other things, to identify disputed and undisputed facts. Unfortunately, in this appeal, the record is clear that the appellant admitted that he was 18 years old, hence not covered under sections 4, 113, and 119 of the Child Act. 13 Therefore, raising this issue at this stage is nothing but an afterthought. With this analysis, we find the supplementary ground of appeal baseless, and we accordingly dismiss it. Turning to the first and second grounds of appeal from the original memorandum, the appellant faults his identification, where he contended that he was not properly identified at the scene. The contending line is that the principles laid down in Flavian Gaspal v. Republic, which quoted with approval the case of Waziri Amani v. Republic [1980] TLR 250, were not considered. Admittedly, the offence subject to this appeal was committed at 09:30 pm during night hours. Explaining how they identified the assailant, PW1 testified that he knew the appellant. When he invaded them while accompanied by his fellow, the appellant held him tight and squeezed his neck, asking PW1 to give him money. That being the case, they were almost zero distance from each other. Further, PW1 testified to the effect that, he managed to identify him due to a very sharp light from a tube light which was outside the shop and a bulb which was inside the shop, illuminating that area. In our firm view, we find that the explained condition eliminated all the possibilities of mistaken 14 identification of the appellant at the scene, keeping in mind that, being known to each other, the identification was by recognition. We are in agreement with the appellant's submission that knowing somebody is one thing, and identifying him at the scene of a crime is another thing. We are also mindful of the legal position established by the Court that even when the witness is purporting to recognize someone whom he knows, the court should be aware that mistakes in recognition of close relatives and friends may happen. See- Issa Ngara @ Shuka v. Republic (supra) and Daniel Amos Mziho v. DPP (Criminal Appeal No. 221 of 2020) [2023] TZCA 18004. However, we find the circumstances of this appeal support that there were no mistakes in the recognition of the appellant. The reasons for such findings include the following; Firstly, PW1 managed to name the appellant to PW3 at the earliest opportunity when he arrived at the scene immediately after the incident, whereby mentioning him at the earliest stage added credence to PWl's direct evidence that he properly recognized the appellant. See- Marwa Wangiti Mwita & Another v. Republic [2002] TLR 39 and Daniel Charles Coiner @ Bahati v. Republic (Criminal Appeal No. 348 of 2021) [2024] TZCA 801. 15 Secondly, PW3 told the court that the appellant is their relative, hence, after being mentioned by PW1, he opted to report the matter to the appellant's family before taking any legal steps. Opting to report the incident to the appellant's family during that night guaranteed that the prosecution witnesses identified the appellant at the crime scene. This Court, in the case of Athumani Hamis @Athumani v. Republic, Criminal Appeal No. 288 of 2009 (unreported) which was referred in Masamba Musiba @ Musiba Masai Masamba v. Republic (Criminal Appeal No. 138 of 2019) [2021] TZCA 270, held: "Under the circumstances where the complainant recognized the appellant because o f knowing him before and given the conditions which made the complainant recognize the appellant; it is safe to say that there was no mistaken identity of the appellant ." Being guided by the above legal principle, we agree with the learned Senior State Attorney that the conditions for the identification of the appellant were conducive, leaving no possibility of mistaken identity. Hence, we find no merit in the first and second grounds of appeal, and we dismiss them. In regards to the third ground of appeal where the appellant complained that, the first appellate court erred to by believing that, he absconded from his home while there is evidence that he was arrested at home, this ground should not detain us much as the same is purely based on factual matter not matters of law and the same were not raised and determined at the lower court. Hence, this Court has no jurisdiction to determine it at this stage. See. Jafari Mohamed v. Republic, Criminal Appeal No. 112 of 2006 (unreported), Hassan Bundala @ Swaga v. Republic, Criminal Appeal No. 386 of 2015 (unreported), and Godfrey Wilson v. Republic (Criminal Appeal 168 of 2018) [2019] TZCA 109. In regard to the fourth ground of appeal, that the appellant was not informed of his right provided under section 231 of the CPA, it was argued by the learned Senior State Attorney that this complaint is baseless as it is on record that the appellant was addressed in compliance with section 231 of the CPA. We agree with the learned Senior State Attorney's stance that this complaint is unfounded. Going through the record of this appeal specifically at page 30, it is on record that after the ruling on a case to answer, the appellant was recorded informing the trial court that he shall defend himself without any 17 additional witnesses and that he shall defend on oath. This is an indication that he was informed of his rights as provided by the taw. See - Jerome Peter Kavishe v. Republic (Criminal Appeal No. 446 of 2021) [2024] TZCA1054. We thus find this ground of appeal baseless and dismiss it Turning to ground number five, there was no proof that PW2 owned a phone that was robbed from PW1, and that PW1 was injured. This ground should not detain us much, as it is clear from the record that the stolen properties belonged to PW3. Also, this complaint is based on a factual matter which did not feature at the lower courts, as it is on record that the appellant neither cross-examined the witnesses on that issue nor did he raise it as a ground of appeal at the lower court. In his first appeal, the appellant's grievance was not on whether the phone was owned by PW2 or otherwise. His complaint was to the effect that theft was not proved, as there was no receipt or IMEI number, which was tendered to prove the ownership of the said properties. We are not ready to dwell on determining this complaint as a fresh one at this stage. Likewise, on the complaint that there was no proof that PW1 was injured, we find this complaint to be unfounded. Reading from section 287A of the Penal Code, which establishes the 18 offence of armed robbery, and the conditions laid down in case laws, proof of injury is not necessary in proving the offence of armed robbery. See, for instance, Shabani Said Ally v. Republic (Criminal Appeal No. 270 of 2018) [2019] TZCA 382 and Samson Mzamani v. Republic (Criminal Appeal No. 160 of 1994) [2000] TZCA 21. Therefore, we find no merit on this ground of appeal, and equally dismiss it. Regarding ground number six, the appellant's grievance in this ground is on the failure of the lower courts to draw an adverse inference on the prosecution's case for failure to summon materia! witnesses. Having heard their submission on this complaint, and taking into consideration the argument made by Ms. Magoho, that it was the discretion of the prosecution to decide who should be summoned to testify. On our part, having gone through the record, we find the appellant's relatives were not material witnesses in this case. The appellant's relatives being his grandmother or his uncle, did not witness the incident, and further, the fact that the appellant was arrested was not in dispute. This Court echoed in its numerous decisions that the court would only draw an adverse inference on the prosecution's case in situations 19 where the prosecution fails to summon a person as a witness who is well versed with the necessary information connected to the commission of an offence. See for instance, Bashiri s/o John v. Republic and Abdallah Azizi v. Republic [1991] TLR 71. Therefore, premising on the analysis above and being guided by the position stated in the above authority, we find ground number six meritless as the appellant's relatives had no necessary information to fill in on the prosecution's case. On the last ground of appeal that the charge was not proved to the hilt, responding to this ground, Ms. Magoho submitted that all the ingredients which constitute an offence of armed robbery as stipulated in Shabani Said Ally v. Republic (supra), were established. She submitted that there was a weapon used in robbing the money and mobile phone, and the same was used against PW1. Having keenly perused the record of this appeal, we also find no reason to interfere with the concurrent findings of the two lower courts, which concluded that the charge against the appellant was proved beyond a reasonable doubt. Section 287A of the Penal Code provides: "A person who steals anything, and at or immediately before or after stealing is armed 20 with any dangerous or offensive weapon or instrument and at or immediately before or after stealing uses or threatens to use violence to any person in order to obtain or retain the stolen property, commits an offence o f armed robbery and shall, on conviction, be liable to imprisonment for a term of not less than thirty years with or without corpora! punishment" During the trial, it was a prosecution case that, on the material date, the appellant invaded and held PW1, who at that material time had the money and mobile phone given by PW2, who was closing the shop. To obtain those properties, the appellant squeezed PW1 while asking for money, and he finally slapped him with a bush knife and grabbed the money and mobile phone from him. PW1 told the court that, having obtained the said items, the appellant never returned them. From these pieces of evidence, it is clear that the appellant stole the money and mobile phone, and he used violence to obtain those items. It is from these facts that we find all the ingredients of the offence of armed robbery stipulated in the above-quoted provision were established. Hence, the prosecution proved the charge against the appellant beyond a reasonable doubt. That said, we find no merit in the last ground of appeal. 21 In view of the foregoing, we find the appellant's appeal has no merit, and consequently, we dismiss it in its entirety. DATED at DODOMA this 26th day of March, 2026. B. M. A. SEHEL JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL Judgment delivered this 27th day of March, 2026 via Video Conference, in the presence of the Appellant in person, Ms. Winiwa Kasala, State Attorney for the Respondent and Mr. Julius Kilimba, Court Clerk; is hereby certified as a true copy of the original. 22