Joseph Mashimba @ Dogo J. vs Republic (Criminal Appeal No. 172 of 2021) [2024] TZCA 785 (21 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MKUYE, J.A., KITUSL J.A. And ISSA, J.A.l CRIMINAL APPEAL NO. 172 OF 2021 JOSEPH MASHIMBA @ DOGO 3 ...............................................APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania, at Mwanza) f Bweaoae, SRM Ext Jur.l dated the 13th day of November, 2020 in Criminal Appeal No- 4 of 2020 JUDGMENT OF THE COURT 16* & 21s tAugust, 2024 MKUYE, J.A.: The appellant alongside seven others who were acquitted during trial were all charged with two counts, namely; the 1s t count of burglary contrary to section 294 (1) (a) and (b) of the Penal Code, Cap 16 (the Penal Code) and the 2n dcount of stealing contrary to section 258 (1) and 265 of the Penal Code. Despite a protracted delay in commencement of hearing, hearing commenced and upon conclusion of this prosecution case, the 2n d , 3rd , 4th , and 7th accused persons were found with no case to answer. The 5th and 6? accused persons jumped bail and the trial

proceeded against them in absentia, under section 226 of the Criminal Procedure Act, Cap 20 (the CPA) together with the appellant and the 8th accused who were present in court until they presented their respective defences. Eventually, the 8th accused was acquitted while the appellant was convicted on both counts and was sentenced to twenty (20) years imprisonment for the 1s t count and five (5 years) imprisonment for the 2n d count. The sentences were ordered to run consecutively. Aggrieved with the trial court's decision the appellant appealed to the High Court but his appeal was unsuccessful. Before embarking on the merit of the appeal, we find it appropriate to narrate, albeit briefly, the facts leading to this appeal. They go thus: On the night of 4/1/2019 at around 1:00 hrs thieves broke into a make shift storage facility belonging to Geita Municipal Council. According to the charge 41 bundles of corrugated iron sheets were stolen. G. 8786 DC Zakaria (PW5), testified that while on night patrol with other police officers, they received information from the Regional Police Commander of the arrest by civilians of some culprits who had been involved in the burglary. They then headed to the scene and discovered that there was theft of some corrugated iron sheets. While still on patrol, they managed

to locate a motor vehicle parked and left unattended near the business premises of one of the accused persons, whereby, a quick inspection revealed that it contained a consignment of corrugated iron sheets. The motor vehicle was then seized and taken to the police station. The appellant being the owner of the motor vehicle in which the alleged stolen properties were found together with his accomplices were arrested and arraigned in connection with the theft. Upon the conclusion of the trial, trial court was convinced that the appellant alone, under the doctrine of recent possession, was guilty of the two counts and sentenced him as alluded to earlier on. The appellant has appealed to this Court based on six grounds of appeal. However, for reasons that will become apparent soon, we have opted not to reproduce them. When the appeal was called on for hearing, the appellant appeared in person with no legal representation while the respondent Republic was represented by Mr. Castuce Clemence Ndamugoba, the learned Principal State Attorney. The appellant commenced by adopting his grounds of appeal and opted for the Principal State Attorney to respond first and for him to make a rejoinder later, if need arises.

Before hearing of the appeal could commence in earnest, we inquired from the Principal State Attorney on the propriety of the charge whether it was properly framed. We specifically drew Mr. Ndamugoba's attention to whether it was proper to have charged the appellant for committing burglary under section 294 (1) (a) and (b) of the Penal Code in view of the fact that the offence was not committed on a dwelling house. In a brief and focused response, Mr. Ndamugoba was quick to point out that section 294 (1) (a) and (b) of the Penal Code specifically provides for the offence of burglary that is committed in buildings used for human dwelling. He elaborated that in the present matter, the evidence of PW1 in relation to the stolen goods was that the same were stolen from a store. He, therefore contended that there was a variance between the charge sheet and the evidence tendered. He, then, conceded that the charge was defective which renders it not to have been proved beyond reasonable doubt. Ultimately, he implored upon us to find that the appeal has merit and proceed to quash the appellant's conviction, set aside sentence and release him from custody. On his part, the appellant welcomed Mr. Ndamugoba's concession and prayed that he be released from custody. He further made a prayer

that the motor vehicle that had been forfeited to the Government be returned to him. Having heard both parties, we are now in a position to address the preliminary matter which, we think, is capable of disposing of the appeal. We begin by observing that the appellant was charged with the offence of burglary under section 294 (1) (a) and (b) of the Penal Code which reads: "294.- (1) Anyperson who - (a) breaks and enters any building, tent or vessel used as a human dwelling with intent to commit an offence therein; or (b) having entered any building, tent or vessel used as a human dwelling with intent to commit an offence therein or having committed an offence in the building, tent or vessel, breaks out ofit, is guilty of housebreaking and is liable to imprisonment for fourteen years." Our interpretation of the above cited provision is that it relates to an offence committed in a building specifically used for human dwelling and not otherwise. In the present matter, according to the evidence of Protaz Makongoro (PW4) who was a store keeper of the Magogo store owned by

Geita Town Council, the property subject of the charge was stolen from a store. Therefore, it is clear that the theft having been committed in a building not used for human dwelling, then, section 294 (1) (a) and (b) of the Penal Code was not the appropriate provision for the prosecution to prefer the charge on, rather, we think, the relevant provision would have been section 296 of the Penal Code which states as follows: "296. Any person who - (a) Breaks and enters a school, house, shop, warehouse, store, workshop, garage, office or counting house, or a building which is adjacent to a dwelling house and occupied with it but is not part of it, or any building used as a place of worship and commits an offence therein; (b) Having committedan offence in any building referred to in paragraph (a) breaks out of the building, is guilty of an offence and is liable to imprisonment for ten years." We wish to emphasize that a charge is the foundation of criminal proceedings upon which a criminal case is built. Therefore, it should be free from error. See: Hebron Kasigala v. Republic, Criminal Appeal No. 3 of 2020 [2021] TZCA 268 (1 July 2021 TANZUI); Rajab Khamis @ Namtweta v. Republic, Criminal Appeal No. 578 of 2019 [2021] TZCA 236 (8 June 2021 TANZLII). It was incumbent upon the prosecution,

having realized that the charge was at variance with the evidence, to have utilized the option under section 234 (1) of the CPA, to amend the charge so as to accommodate the evidence. That was not done. The resulting effect is that the charge and the evidence speak in contradiction of the other. In the circumstances, as rightly conceded to by Mr. Ndamugoba, in the absence of an amendment, the charge is rendered defective, hence, not proved beyond reasonable doubt. See: Barnabas William Mathayo v. Republic, Criminal Appeal No. 254 of 2020 [2022] TZCA 431(15 July 2022 TANZLII); Hussein Kausar Rajan v. Republic, Criminal Appeal No. 670 of 2020 [2022] TZCA 571 (22 September 2022 TANZLII); and Vitalis Joseph v. Republic, Criminal Appeal No. 384 of 2021 [2022] TZCA 822 (19 December 2022 TANZLII). As to the way forward, we accede to Mr. Ndamugoba's proposal. We hereby exercise our powers under section 4 (2) of the Appellate Jurisdiction Act, Cap 141 and nullify the proceedings, judgments of the two lower courts, quash the conviction and set aside the sentence imposed against the appellant. We further order for his immediate release from custody unless otherwise he is held for other lawful causes. Besides that, we have considered the appellant's prayer to have the motor vehicle returned to him. Indeed, the record bears that the application for forfeiture was made and granted under section 9 (1) of the

Proceeds of Crimes Act, Cap 256 (the PCA). In view of section 17 (1) of the PCA, having quashed the conviction upon which the forfeiture order hinged, we hereby order for the discharge of the motor vehicle, subject of the forfeiture order. DATED at MWANZA this 20th day of August, 2024. R. K. MKUYE JUSTICE OF APPEAL I. P. KITUSI 3USTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 21s t day of August, 2024 in the presence of the Appellant who appeared in person, and Mr. Deogratias R. Rumanyika, State Attorney for the Respondents/Republic, is hereby certified as a true copy of the original. D EI _________ RAR COURT OF APPEAL 8