Mashaka Ally @ Shakazulu and Another vs Republic (Criminal Appeal No. 247 of 2014) [2018] TZCA 673 (13 August 2018)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MUSSA, J.A., MZIRAY, J.A. And NDIKA, J.A.) ,CRIMINAL APPEAL NO. 247 OF 2014

1. MASHAKA ALL y @ SHAKAZULUL . . . . .
2. DOTTO M. D. NACHIKONGO f ··················:······················APPELLANTS

• . . . VERSUS THE REPUBLIC ••••••••••• · .....•••• ~ •••••••••••••••.•.•..•..••••••••••••••••••••••••••••• RESPONDENT · (Appeal from the decision of the High Court of Tanzania at Dar es Salaam} 7 th June & 17 th August, 2018 . MUSSA, J.A.: (Mwaikugile, J.} dated the 10 th day of October, 2003 in HC. Criminal Appeal No. 88 of 2002 JUDGMENT OF THE COURT In the District Court of Temeke, the appellants and another were arraigned as hereunder:- · "OFFENCE SECTION AND LAWS: -Armed robbery c/o 285 and 286 Cap. 16 Vol. 1 of the Laws. PARTICULARS OF OFFENCE: That Mashaka s/o Ally or Shaka Zul~ Doto s/o Mohamed Nachikongo/ and Shamte s/o Seifu Ungando are Jointly and together charged on the 2.sth. 1

day of Jul½ 2001 at about 05:45 hour~ atCamarada bar-: Mbagala Kizuiani within the Municipality of · Temeke Dar es Salaam region did steal one watch make Seiko five automatic valued at Tshs. 45 ✓ 000/ and immediately before the stealing did cut wound: one Benedict s/o Ntila on his head with a bush knife in order to retain the stolen property. ,, Throughout the trial;theappellants stood as, respectively, the first and second accused persons, whereas the third accused was, namely, Shamte Seif Ungando. The appellants as well as .their co-accused persons denied the charge, whereupon the prosecution featured two witnesses and closed its case. At the close ofthe ·case for the. prosecution, all accused persons were recorded as being present, and the court then made the following entry:- " Order: - Prosecution case closed Defence hearing on 6h March 2002. Accused remanded in custody. Others removal order for bail. Signed J. W. Kayombo/ H. M 20/2/2002 It is not palpably clear as to why the accused persons were differentially treated with- respect to their custody. Be what may have been 2

·· the cause but, on a more· serious 'note, further down the record of proceedings, on the 29 th April, 2002, the trial court recorded thus:- ''section 231 Criminal Procedure Act complied with// Thereafter, both appellants elected to give affirmed evidence, whereas their co-accused person elected to remain silent. Accordingly, the appellants gave affirmed testimony ahd, at the height of the trial proceedings, they were found guilty, convicted and handed down the minimum sentence of thirty (30) years imprisonment. Their co-accused person was absolved of responsibility and, on that score, he was acquitted. On the first appeal, the High Court (Mwaikugile, J.) found no cause to . vary the conviction as well -as· the term of thirty (30) years imprisonment. But the sentence was otherwise enhanced by the imposition .of a corporal punishment of twelve (12) strokes of the cane as against each appellant over and above the imprisonment term. The appellants are aggrieved and seek to impugn the verdict of the High Court upon an array of points of grievance which are comprised in their joint memorandum of appeal. Nonetheless, before we confront the issues of contention in this appeal, we should unveil the factual background, albeit briefly:-

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From its two witnesses/the case for the prosecution was to the effect . that on the date alleged in the Charge Sheet, ·around 5:15 a.m. or so, the alleged victim (PWl), who is a medical officer, was walking towards his working place at Mbagala Kizuiani. Whilst walking, PWl was confronted with an assailant who grabbed him by the neck and, then, all of a sudden, another assailant emerged and hacked him on the legs by the use of a bush knife. The assault on his legs' swept him to the ground, following which the assailants dispossessed him: of his wrist watch and inflicted on him another cut wound on the head before they bolted away. As regards the identity of the assailants as well as the circumstances obtaining at the scene, PWl told the trial court thus:- " I know the accused person {1 st } because I know him well. And I have seen him several times with his behavior. The second accused I know him because is my neighbour... There was no darkness and in the nearby house there was a security lamp which was lighting. Also 1 st and ?d accused live nearby. So I saw them clearly. ✓ , In the immediate aftermath, PWl reported the incident to Mbagala · Police Station and was medically attended at a hospitaL He implicat.ed the . appellants to the police, bfffter who was assigned the conduct of the 4

investigations, namely, No.- C3530 detective Sergeant Abas (PW2). The appellants were apprehended on the 3 rd August,. 2001 in the wake of an impromptu police swoop for rogues and vagabonds and, accordingly, arraigned. In reply to the foregoing condemnation, both appellants completely disassociated themselves • from the prosecution accusation. More particularly, the first appellant told the trial court that he was apprehended by traditional vigilantes (sungusungu) on the 6 th August, 2001 and not the 3 rd August as claimed by PW2. The apprehension, he said was effected at his house of residence where· he was, admittedly, found in possession of cannabis. To his surprise, on the 1?lh August, 2001 he was arraigned for the offence giving rise to the present appeal to which he knew nothing about. The second appellant did not quite refute the prosecution detail that he was arrested by the police on the 3 rd August, 2001. But, according to him, his arrest was done at his house of residence around 2:30 a.m. or 'SO. He was, thereafter, implicated for the prosecution accusation·· of which he, also, knew nothing about. On the whole of the evidence, the trial court was impressed by the prosecution version, at least, with respect to the· implication of the appellants. As we have already intimated, the appellants were convicted ·s

and sentenced accordingly. Again, we have also hinted that their first appeal . . was to no avail. · At the hearing before us, -it was only the first appellant who entered appearance in person, unrepresented. The second appellant was absent and, it came to our knowledge, t~rough a letter written by the officer-in- charge of Ukonga Prison, that the second appellant was discharged from prison by way of a parole arrangement on the 8 th August, 2017. In the circumstances,. we invited Ms. Rachel Magambo, the learned senior State Attorney, who appeared for the Republic, to advise on the way forward. The learned Senior-State Attorney advised us to proceed with the hearing of the appeal of the first appellant whilst we place the appeal by the second appellant in abeyance. ·The first appellant, quite understandably, left the issue to be decided by the Court. On our part, we entirely subscribe to Ms. Magambo's submission, save that we find it inadvisable to place in abeyance the appeal by the second appellant. On the contrary, we find it prudent to strike out his appeal under Rule 4(2) (a) and (b) of the Court of Appeal Rules, 2009 (the Rules) and extend to him the option-to restore it, if he would so wish, upon the showing of good cause. · All said on the issue; we proceeded to hear the first appellant's appeal. 6

_ It is noteworthy that Ms; Magambo had .filed a notice of preliminary point of objection which , she withdrew after a brief .dialogue with us.· ·· Addressing us on the merits of the appeal, the learned Senior State Attorney contended that the trlai-below was seriously undermined by two disquieting factors: First, the charge sheet was incurably defective, in its particulars, for not indicating the owner of the allegedly stolen watch and, second, by the mere remark that ''section 231 of the Criminal Procedure Act complied with" it was not palpably .clear that the requirements of the referred provisions were duly met. It was Ms. Magambo's· submission that both the shortcomings were fundamental with the effect· of nullifying the proceedings but she did not press for a retrial much as the evidence respecting the identification of the appellant at the scene fell far-too short. To this submission and prayer, the first appellant had nothing in. reply, again, quite understandably, given his status as_ a lay person. On our part we propose to first confront the first issue with respect to section 231 of the Criminal ·.Procedure Act (CPA) which we find easily disposable. We think, in that· regard, it is pertinent to pay homage to the unreported ·Criminal Appeal No, 118 of 2006 between Bahati Makeja vs · The Republic. In that case; :,a. full bench of the Court had to grapple with 7 . .

the provisions of section 293(2) of the CPA which is akin to the provisions of the referred section 231.. In. Makejc, (supra) .it was not upon record that. the trial Judge had addressed the accused person in the manner prescribed · by section 293(2} orthe CPA.·, All what was reflected in the record was the choice made by the accused's Advocate to the effect that his client will testify on oath and that he has one•witnessto call. On appeal, the full bench of the Court took the following positions:- {i} That it was palpably clear that the learned Judge must have addressed the accused in terms of section 293 of the CPA which is why the learned Advocate stood up to make a choice of his client's manner of defence/ {ii} That even if the learned Judge had omitted to do so/ in a case where the accused person is represented, the paramount factor is whether or not injustice has been occasioned,· and {iii} That, the word ''shalr/ as used in the CPA is not imperative as provided by section 53(2) of chapter 1 but is relative and is subjected , to section388 of the CPA. 8

In the scenario at' hand, the appellants were unrepresented but, inasmuch· as they clearly expressed to the trial court the manner of their defence, we.take the position that the requirement comprised in section 231 was fully met. It would have. been neater and most desirable if the learned trial Magistrate had stated in detail the manner of compliance with the provision but, going by the answers made by the appellants in response, the partial non-compliance was curable. As regards the first issue, having heard the submissions of the learned Senior State Attorney, we entirely subscribe to her view that, on a proper construction, a charge of armed robbery ought to disclose the owner of the allegedly stolen property. The omission, if we may add, is not in the category of those which are curable under section 388(1) of the CPA, much as the same relates to the ingredients of robbery which goes to the· root of the charge sheet. Thus, on account of the omission by the prosecution to disclose, in the charge sheet, the _owner of the allegedly stolen watch, it cannot be said with certainty that the first appellant was accorded a fair trial. That being so, we are constrained to intervene under the provisions of . section 4(2) of the Appellate Jurisdiction Act, Chapter 141 of the Laws and, accordingly, the conviction and sentence meted against the first appellant 9

are, respectively, quashed and set aside. It is further ordered that the first appellant: should. be released from prison custody forthwith . unless if. he is detained for some other lawful cause; . DATED at DAR ES SALAAM this 13 th day of August, 2018. K. M. MUSSA JUSTICE OF APPEAL R. E. S. MZIRAY JUSTICE OF APPEAL G. A. M. NDIKA JUSTICE OF APPEAL I certify that this is a true copy of the original. .I -ti< S. J. KAINOA DEPUTY REGISTRAR COURT OF APPEAL 10