Sperius Mulokozi vs Republic (Criminal Appeal No. 321 of 2022) [2024] TZCA 1216 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CO RAM: MUGASHA. 3.A.. KHAMIS, 3.A. And ISMAIL. J.A.^ CRIMINAL APPEAL NO. 321 OF 2022 SPERIUS MULOKOZI ............................................................... APPELLANT VERSUS THE REPUBLIC ....................................... ........ .... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Bukoba) (Mwipopo, 3 ^ dated the 18th day of March, 2022 in Criminal Appeal No. 41 of 2021 JUDGMENT OF THE COURT 3rd & 10th December, 2024 ISMAIL, J.A.: The appellant was caught on the wrong side of the law when he was charged with and convicted of armed robbery, contrary to the provisions of section 287A of the Penal Code, Cap. 16 R.E. 2019. The offence was allegedly committed at around 21:00 hours on 31s t May, 2020, at Ruzinga village in Misenyi District, Kagera Region. On the receiving end in the said incident was Ms. Christina Felician whose mobile phone Tecno Phantom valued atTZS. 600,000.00 and cash sum of TZS. 250,000.00 were stolen. The victim crossed her tormentor's 'path' when she went to attend a call i

of nature on the sidelines of the venue at which she and many others were attending Luzinga Day celebrations. Unbeknown to the victim that she was being trailed, the appellant and a person whose identity remains a mystery pounced on her, strangled her neck and ordered her to surrender her possessions. It was also alleged that the appellant's co-assailant held a piece of wood fitted with protruding nails that he pressed on the victim's neck. It is at this point in time that the victim surrendered her hand bag which contained the aforementioned possessions with which the appellant and his co-assailant got away. A police swoop culminated in the appellant's arrest and eventual arraignment in the Resident Magistrate's Court of Bukoba at Bukoba. He was convicted of the charged offence, and condemned to a 30-year custodial sentence. His first appeal fell to naught when the High Court dismissed it. The decision on appeal did not sit well with the appellant hence his decision to climb a ladder up to this Court. A total of 21 grounds of appeal were raised but, as it shall be apparent in a bit, need does not arise for reproduction of the said grounds. At the hearing before us the appellant appeared in person, unrepresented, whereas the respondent enjoyed the able services of

Mses. Wampumbulya Shani and Immaculate Mapunda, both learned Senior State Attorneys, along with Mr. Enosh Gabriel Kigoryo and Ms. Evarista Kimaro, both learned State Attorneys. As we set out for start, we called upon the parties to address us on the regularity or otherwise of the charge sheet that instituted the trial proceedings. In her brief submission, Ms. Shani readily conceded that the charge sheet was utterly wanting for not complying with the provisions of section 287A of the Penal Code, for its omission to disclose a key ingredient of the offence of armed robbery. In this case, she contended, the omission resided in the particulars of the offence which did not disclose the person against whom the weapon was used. This, she concluded, was a fatal omission which cannot be cured and the consequence is to allow the appeal. The appellant did not have any thing useful to submit, besides praying that his appeal be allowed and that he be set free. As we stated earlier on, the appellant stood charged with armed robbery. The charge through which the appellant was indicted was preferred in the following form and style: 3

"IN THE RESIDENTMAGISTRA TE COURT OF BUKOBA ATBUKOBA RM CRIMINAL CASE NO. 15 OF2021 REPUBLIC Versus SPERIUS S/O MULOKOZI SUBSTITUTED CHARGE STA TEMENT OF OFFENCE ARMED ROBBERY; contrary to section 287 (A) o f the Penal Code [Cap 16 o f RE. 2019] PARTICULARS OF OFFENCE SPERIUS S/O MULOKOZI on the 31st day o f December, 2020, at Ruzinga Village within Missenyi District in Kagera Region did steal one (1) phone make TECNO PHANTOM SIX valued TZS 600,000/= and Cash Money TZS250,000/= the properties of CHRISTINA D/0 FELICIAN and immediately before and immediately after such stealing did use a nail in order to retain the said stolen properties. Signed and DATED at BUKOBA this 10th day o f February 2021 . STATE ATTORNEY" It is common knowledge that a statement of complaint, otherwise known as a charge or information, is a creature of statute whose manner of preference is guided by the provisions of section 132 of the Criminal Procedure Act, Cap. 20 R.E. 2022 which stipulates as follows: 4

132. "Every charge or information shall contain , and shall be sufficient if it contains, a statement o f the specific offence or 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. "[Emphasis is added] The clear message that is distilled from the quoted excerpt is that a charge has to have particulars which necessarily convey information that describes the nature of the offence in respect of which the accused person is called upon to plead. Where it fails to disclose vital information and necessary particulars the same is said to be violative of the law. Where the offence alleged is armed robbery, under section287A of the Penal Code, the charge must clearly state against whom the weapon that the assailant allegedly carried was directed. Absence of such information means that the key ingredient of armed robbery has been omitted and this makes the charge incurably defective. We accentuated this position in Amiri Juma Shabani & 2 Others v. Republic, Criminal Appeal No. 290 of 2015 (unreported) wherein the Court held as follows: 5

(i) "S. 132 o f the CPA requires every charge or information to contain such particulars as maybe necessary for giving reasonable information as to the nature o f the offence charged. S. 135 (a) (iv) o f the CPA enjoins the prosecutors to use the forms set out in the Second Schedule to the CPA and to conform to them as nearly as may be..... (ii) According to Form No. 8 o f the Fourth Schedule to the CPA it is essential to allege in a charge o f robbery, the use o fpersonal violence to a named person. In a number o f decisions, this Court has pronounced that where a charge o f armed robbery omits to mention such ingredient, the charge is incurably defective. (iii) In the present case, there is no dispute that the particulars o f the offence set forth in the charge sheet do not disclose against whom the gun was used. The appellants' appeal is therefore meritorious. On account o f the aforementioned irregularity, the proceedings, convictions and sentence imposed on the appellant are quashed and set aside." The Court's stance in the foregoing excerpt was underscored in the case of Richard Maginga v. Republic, Criminal Appeal No. 133 of 2016 (unreported) in which we quoted our previous decision in Isidori Patrice 6

v. Republic, Criminal Appeal No. 224 of 2007 (unreported), it was held in the latter as follows: "It is now trite law that the particulars o f the charge sheet disclose the essential elements or ingredients o f the offence. The requirement hinges on the basic rules o f criminal law and evidence to the effect that the prosecution has to prove that the accused committed the actus reus o f the offence charged with necessary mens rea. Accordingly, the particulars in order to give the accused a fair trial in enabling him to prepare his defence, must allege the essential facts o f the offence and any intent specifically required by law " See also: Kashima Mnadi v. Republic, Criminal Appeal No. 78 of 2011 (unreported). Glancing through the charge sheet in the instant matter, we gather that the same is deafeningly silent on the name of the person against whom the stated weapon was used. Absence of this vital information had the effect of denying the appellant the opportunity to know the fullest extent of the blemishes thrown at him, making the charge deficient. Such deficiency implies that section 132 of the CPA was given a wide berth and 7

it cannot be said that the appellant's arraignment and conviction stood on a solid foundation. We are decidedly of the view that the appellant was brought to book based on a charge which had all the hallmarks of a fatally defective charge which cannot be saved by invoking section 388 of the CPA. This, in consequence, rendered the proceedings, right from their inception, a sham that must be gotten out of the way. We need to remark, as we draw to a close that, while in some cases a retrial would be considered as a feasible remedy, we are of the considered view that circumstances of this case militate against that course of action and the reason is twofold. One, that the incurable nature of the omission would not allow any mending of the charge to bring the proceedings back on course through retrial. Two, that retrial may, in the circumstances of this case, occasion an injustice for, it cannot be ruled out that the prosecution may seize the opportunity and stitch its case in a manner that would fill in gaps that there may be in their case. This is what was abhorred in Fatehali Manji v. Republic [1966] E.A. 343. See also: Jumbo Abdallah v. Republic, Criminal Appeal No. 205 of 2015 (unreported). In consequence, in exercise of revisional powers bestowed on us under section 4 (2) of the Appellate Jurisdiction Act, quash the 8

proceedings of the lower courts, and set aside the convictions and sentences. We also order that the appellant be immediately released from prison unless he is held for any other lawful cause. DATED at BUKOBA this 9thday of December, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 10th day of December, 2024 in the presence of the appellant in person unrepresented and Mr. Jamal Issa, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. 9