Deogratias Augustine @ Msele @ Mangi Kisauti and Another vs Republic (Criminal Appeal No. 257 of 2016) [2017] TZCA 1074 (13 December 2017)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MUSSA, J.A., LILA, J.A. And MWAMBEGELE, J.A.) CRIMINAL APPEAL NO. 257 OF 2016

1. DEOGRATIAS AUGUSTINE @ MSELE ~ @ MANG I KISAUTI ............ APPELLANTS
2. JOSHUA MAYILA@ MASOTA@ JOEL PAMBA VERSUS THE REPUBLIC ................................................................. RESPONDENT {Appeal from the judgment of the High Court of Tanzania at Bukoba) {Matogolo, J.) 11 th & 14 th December 2017 dated the 26 th day of May, 2016 in Criminal Appeal No. 39 of 2015 JUDGMENT OF THE COURT MWAMBEGELE, J.A.: This is a second appeal. In the District Court of Muleba, Deogratias Augustine @ Msele @ Mangi Kasauti and Joshua Mayila @ Masota @ Joel Pamba, the appellants herein, together with a certain John Boniphace @ Pambano who was acquitted, were charged with and convicted of three counts. The first count respected conspiracy to commit an offence contrary to section 384 of the Penal Code, Cap. 16 of the Revised Edition, 2002 (hereinafter referred to as the Penal Code). It was alleged that the 1

accused persons on unknown date and place in Muleba District, Kagera Region, did unlawfully conspire to steal boat engines. The second and third counts were in respect of armed robbery contrary to section 287A of the Penal Code. In these counts, the accused persons were alleged to have stolen two boat engines. On the second count, they were alleged, on 30.03.2014, to have stolen one boat engine the property of Gideon Niyongeli. On the third count, they_ were alleged, on the same date, to have stolen one boat engine, the property of Muhamisho s/o Josephat @ Mujuli Josephat. In both instances, they were alleged to have fired one bullet in the air in order to obtain the said engines. The three accused persons having pleaded not guilty, a full trial ensued at the end of which the third accused person was acquitted and the first and second accused persons were convicted as charged. They were sentenced to a jail term of one year on the first count and thirty years on the second count as well as on the third count. The sentences were ordered to run concurrently. 2

The appellants were aggrieved with the convictions and sentences. Their appeal to the High Court was unsuccessful, hence the present appeal. The appellants lodged a joint Notice of Appeal on 30.05. 2016 but filed different memoranda of appeal on 22.12.2016 and different supplementary memoranda of appeal on 06.12.2017. As, in terms of rule 68 (1) of the Tanzania Court of Appeal Rules, 2009, it is the Notice of Appeal which institutes a criminal appeal, the present appeal is in respect of both appellants. However, both memoranda of appeal and supplementary memoranda of appeal have identical grounds of complaint. · For reasons that will become apparent shortly, we shall not reproduce all the grounds of complaint. At the hearing of the appeal on 11.12.2017, the appellants appeared in person, unrepresented. The respondent republic had the services of Ms. Chema Maswi, learned State Attorney. Fending for themselves, the appellant sought to adopt their memoranda of appeal as well as the supplementary memoranda of appeal. However, they both reserved their right of rejoinder after hearing the respondent Republic. 3

We prompted Ms. Maswi to respond on the first ground of complaint in the memoranda of appeal. This ground reads in both memoranda as follows: "That, in respect of the missing ingredient of armed robbery as provided in the p/code cap. 16 R.E 2002; the charge is/was incurably defective." Ms. Maswi supported the appellants' appeal on this ground. She submitted that the charge sheet was incurably defective in respect of the second and third counts in that, in both, it lacks a mention of a person against whom the violence was directed. She stated that there were several decisions of the Court holding that such a defect was fatal; it rendered the charge sheet defective and the Court in those instances has been allowing the appeal. To buttress this proposition, the learned State Attorney referred us to our unreported decision in Munziru Amri Mujibu & another v. R., Criminal Appeal No. 151 of 2012 which she had earlier on supplied to the Court on 06.12.2017 alongside her list of authorities. In that case, Ms. Maswi charged, the Court was faced with an identical situation because there, like here, the name of the person against whom the violence was directed was not mentioned in the particulars of the offence part of the charge sheet. The Court held that the charge sheet 4

lacked a very important ingredient of the charge of armed robbery and consequently allowed the appeal. The learned counsel urged us to follow suit. The learned counsel intimated to the Court that she was alive to the fact that the charge sheet was not defective in respect of the first count which could stand alone after the second and third counts were found defective. However, she was quick to state that she still supports the appellants' appeal in that the evidence adduced at the trial in respect of that count was not sufficient to prove it to the required standard; beyond reasonable doubt. The learned counsel thus had no qualms if the appeal would be allowed in respect of both appellants. Ms. Maswi did not stop there. She had two other missiles to unleash against the proceedings of the trial court. She submitted that the defective charge sheet was not the only shortcoming in the matter. She pointed out that some of the witnesses were not sworn before testifying. Particular reference was made to Mohamisho Josephat PWl and WP 3235 DC Flora Pw4. She mentioned another anomaly to the effect that the case changed hands between two magistrates and the second did not assign reasons as to why the case landed into his hands. In both instances, Ms. Maswi 5

submitted, the Court has been ordering a retrial. But, again, the learned State Attorney was quick to tell us that she was hesitant to argue in details · on the two ailments as at the end of the day she would pray for a retrial which prayer would be misplaced in view of the prayer made in respect of the first ailment which finalizes the ·matter. In view of what was submitted by Ms. Maswi for the respondent Republic, both appellants had nothing to rejoin. They only stated that they were at one with t~e learned State Attorney. We have considered Ms. . Maswi's . submissions and arguments conceding to the first ground of appeal and find ourselves unable to disagree with her. Indeed, as complained by the appellants and supported by the learned State Attorney, the particulars of the offence in the charge sheet on the second and third counts did not disclose the names of persons to whom the violence was directed. For clarity, we take the liberty to reproduce the provisions of section 287A of the Penal Code with which the appellants were charged in the second and third counts. Section 287 A of the Penal Code provides: 6

''.Any person who steals anything, and at or immediately after the time of stealing is armed with any dangerous or offensive weapon or instrument, or is in company of one or more persons, and at or immediately before or immediately after the time of the stealing uses or threatens to use violence to any person, commits an offence termed ''armed robbery" and on conviction is liable to imprisonment for a minimum term of thirty years with or without corporal punishment. " [Emphasis supplied]. For easy reference, and to appreciate the determination we are going to make, we will let the particulars of the offence complained of speak for themselves. The particulars in respect of the second court read: ''PARTICULARS OF THE OFFENCE: That DEOGRA TIAS S/0 AUGUSTINE @ MSELE @ MANG! KASAUTI, JOSHUA S/0 MA YILA @ MASOTA @ JOEL 5/0 PAMBA and JOHN 5/0 . BONIPHACE @ PAMBANO are jointly and together charged on 3dh day of March, 2014 at Kerebe Island within Muleba District in Kagera Region unlawfully did steal one engine boat make YAMAHA valued at Tshs 3,500,000/- the 7

properties of one GIDEON S/0 NJYONGELI and immediately before and after such stealing did discharge one bullet in order to retain or obtain the stolen property. " And in the third count, they read: ''PARTICULARS OF THE OFFENCE: That DEOGRA TIAS S/0 AUGUSTINE @ MSELE @ MANG! KASAUTI, JOSHUA S/0 MAYILA @ MASOTA @ JOEL S/0 PAMBA and JOHN S/0 BONJPHACE @ PAMBANO are jointly and together charged on 3dh day of March/ 2014 at Kerebe Island within Muleba District in Kagera region unlawfully did steal one engine boat make YAMAHA valued at Tshs 1/640/000/- the property of one MAHAMISHO S/0 JOSEPHAT @ MUJULI JOSEPHA T and immediately before and after such stealing did discharge one bullet in order to retain or obtain the stolen property. " The import of section 287A reproduced above, which was introduced in the Penal Code by the Written Laws (Miscellaneous Amendments) (No 2) Act; Act No. 2 of 2004, has been interpreted by this Court as to require the particulars of the offence in the charge sheet to state the person against whom the violence was directed. This has been stated in a string of 8

decisions one of them being the Mujibu case referred to us by Ms. Maswi. Other cases are Kashima Mnandi v. R., Criminal Appeal No. 78 of 2011, Athumani Juma & 4 others v. R., Criminal Appeal No.37 of 2009, Kagoma Leonard @ Rabani & another v. R., Criminal Appeals No. 434 & 435 of 2015, John Sayi @ Sengerema & another v. R., Criminal Appeal No. 544 of 2015 and Magesa Chacha Nyakibali & another v. R., Criminal Appeal No. 307 of 2013 (all unreported), to mention but a few. In the light of the mandatory provisions of section 132 of the Criminal Procedure Act, Cap. 20 of the Revised Edition, 2002 a charge must contain sufficient particulars consisting the essential elements of the offence necessary to give reasonable information to the person answering the charge as to the nature of the offence. The section provides: ''Every charge or information shall contain/ and shall be sufficient if it contains/ a statement of the specific offence or offences with which the accused person is charge4 together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged " [Emphasis ours]. 9

At this juncture, we find it irresistible to observe that in Mussa Mwaikunda v. R., [2006] TLR 387 this Court observed that the principle has always been that an accused person must know the nature of the case facing him and that this can be achieved if the charge discloses the essential elements of the offence. In John Sayi @ Sengerema (supra), for instance, the Court recited its previous decision in Athumani Juma (supra) in which the appellants were charged with the offence of armed robbery, it being alleged, like in the present case, that they committed the robbery at gun point._ In the particulars of the offence, however, it was not stated against whom the gun was pointed. The Court recited the following observation from Athumani Juma (supra): "The appellants were charged with eight counts of armed robbery and all of them omitted to mention against whom the gun was pointed at immediately with the intention of stealing the properties or immediately after stealing the properties with the intention of retaining the same after stealing. This was a serious omission on the part of the prosecution. " . 10

The rationale behind the requirement to disclose, in the particulars of the offence, the person against whom violence was directed, was explained in John Sayi @ Sengerema (supra) as to afford the accused person sufficient information to enable him offer a meaningful defence. The requirement is therefore meant to allude to the principle of a fair trial as was articulated in Mussa Mwaikunda (supra). Likewise, in Kashima Mnandi, the appellant, like in the present case, was charged with the offence of armed robbery. The Charge sheet, in the particulars of the offence, did not disclose to whom the violence or · threat was directed. The Court observed: " we are of the settled view that the charge is incurably defective. It is incurably defective because the essential ingredient of the offence of robbery is missing. Strictly speaking for a charge of any kind of robbery to be prope~ it must contain or indicate actual personal violence or threat to a person on whom robbery was committed Robbery as an offence, therefore, cannot be committed without the use of actual personal violence or threat to a person on whom robbery was committed. Robbery as an offence, 11

therefore/ cannot be committed without the use of actual violence or threat to the person targeted to be robbed. So/ the particulars of the offence of robbery must not only contain the violence or threat but also the person on whom the actual violence or threat was directed. " [Emphasis ours]. A glance at the particulars of the offence in the second and third counts makes it apparent that the violence of firing in the air was not disclosed to whom it was directed. This, in the light of the provisions of section 287A of the Penal Code and on authorities available, was a fatal shortcoming which rendered the trial a nullity. In the light of the above decisions, we are constrained to agree with Ms. Maswi that the omission to disclose, in the particulars of the offence of the charge sheet, the person against whom the alleged violence was directed, renders the charge fatally defective; the defect vitiates the trial. Thus in the exercise of the powers bestowed upon us by section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 of the Revised Edition, 2002, we hereby quash the proceedings and judgment of the trial court and set aside 12

.. the sentence meted out to the appellants in the second and third counts. We, in exercise of the same powers, also quash the proceedings and findings of the first appellate court on those counts court. The foregoing said and done, we remain with the first count which, as Ms. Maswi submitted, and to our minds rightly so, can stand alone despite the defective second and third grounds. This will not detain us. As Ms. Maswi submitted, rightly so in our view, no sufficient evidence was led to ground a conviction. In the testimonies of the eleven prosecution witnesses, there is no scintilla of evidence in respect of the first count. They concentrated on the evidence in respect of· the second and third counts. The prosecution thus miserably failed to prove the first count to the required standard; that is, beyond reasonable doubt. As the foregoing suffices to dispose of this appeal, we do not see a dire need to determine the other shortcomings pointed out by Ms. Maswi for the simple reason that doing so will not serve any useful purpose. After all, the course, if successful, which we think it would, will end up in ordering a retrial which will, having determined that the charge is defective on the second and third counts, and having found that the first count was not proved by the prosecution, and since it is the charge sheet which is the 13

foundation of the trial, belabouring to determine on other discrepancies at the trial will not only be redundant but also inappropriate. The present appeal therefore succeeds. The appellants Deogratias Augustine @ Mse_le @ Mangi Kasauti and Joshua Mayila @ Masota @ Joel Pamba are to be released from prison forthwith unless otherwise held for some lawful cause. Order accordingly. DATED at BUKOBA this 13 th day of December, 2017. K. M. MUSSA JUSTICE OF APPEAL S. A. LILA JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the original. P.~ SENIOR DEPUTY REGISTRAR COURT OF APPEAL 14.