Bariki Lugazira & Another vs Republic (Criminal Appeal No. 510 of 2015) [2017] TZCA 407 (6 December 2017)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA fCORAM: MUSSA, J.A.. MUGASHA. J.A. And LILA, J.A.^ CRIMINAL APPEAL NO. 510 OF 2015

1. BARIKI LUGAZIRAl
2. BUKURU AKILI J ................................................................ APPELLANTS VERSUS THE REPUBLIC............................................................................... RESPONDENT (Appeal from the conviction and Judgment of the High Court of Tanzania at Bukoba) (Khadav, J.) dated the 3rd day of November, 2015 in Criminal Appeal No. 36,37 of 2014 JUDGMENT OF THE COURT 28th November & 6th December, 2017 LILA, J.A.: Bariki Lugazira and Bukuru Akili, the 1s t and 2n d appellants, respectively, together withMaulid Omary and Mandela Msangwa were jointly and together arraigned before the district Court of Chato at Chato in Criminal Case No. 240 of 2013 of the offence of armed robbery contrary to section 287A of the Penal Code (Cap 16 R.E 2002) as amended by Act No. 4 of 2004. Trial ensued. At the end Mandela Msangwa (then 2n d accused)

was acquitted. The rest were found guilty, convicted and sentenced to the mandatory minimum sentence of thirty years imprisonment each. On appeal to the High Court (Khaday, J.), save for Maulid Omary whose appeal was allowed and accordingly discharged, the appellants' convictions and sentences were sustained. Still aggrieved, they preferred the present appeal. The prosecution case at the trial was, briefly, to the effect that on 13/11/2013 at night time Katondo William (PW1) and Ramos Jiles (PW2) who were security guards were on duty guarding the properties of Sino- Hydro Company (the Company), a Construction Company dealing with construction of a road at Bwanga. The two were invaded by bandits armed with bush knives and sticks which were used to beat and cut them in the course of which their two mobile phones make Nokia and Oking (exh. PI), 90 litres of diesel, cash money and two batteries of the excavator were stolen. Assisted by electricity light, the two said they managed to see and identify the four accused persons who were their fellow village mates. They raised an alarm and Stephano Simbaniro (PW3) and Athumani Omari (PW4) who were their fellow security guards but guarding another area responded. While heading to the scene of crime, they met the bandits who 2

assaulted them using a bush knife and an iron bar. The bandits ran away but Mandela Msangwa (then 2n d Accused) ran away leaving behind his shoe (exhibt 2). PW3 and PW4 identified the bandits as they were their fellow village mates and the 2n d accused who formerly worked with them. The matter was reported to Kisija Tumba (PW5), a Human Resource Officer with the Company who later reported the matter to police at Buziku. F.3766 D/CpI Taifa, a policeman, went to the scene and drew a sketch map (exh.3), arrested Maulid Omary (then 1s t Accused), searched him and found him in possession of 90 litres of diesel, thirteen water canes, measuring instruments and three pumps (exh. PE5). The search was conducted in the presence of Adija Mazika (PW10) and Finias Mirumbe (PW11) who also signed the certificate of seizure (exh. PE4). He also arrested Mandela Msangwa and recorded his cautioned statement (exh. PE 6). Later, the 1s t appellant (Then 4th accused) was arrested having in possession of a mobile phone make Oking. In his cautioned Statement recorded by D/CpI Ilanga (PW7) he confessed being found in possession of the phone. Thoba Omary (PW9) stated that he formerly owned the shoes (exh P2) which he later on sold to Mandela Msangwa. Adolph Mathias (PW8) stated that he knew that the shoes belonged to Mandela Msangwa. 3

PW1 and PW2 who sustained injuries went to hospital and were treated by Fitina Nicodemus (PW12) who filled the medical forms (PF3) which were tendered as exhibit PE8 indicating that both sustained severe grievous harm. In defense, all the accused persons disassociated themselves with the commission of the offence. Maulid Omary stated that he was a dealer in petrol and diesel for a long time and he produced receipts for the diesel found in his possession. Mandela Msangwa claimed to have been arrested by police at his working place being associated with the shoe (exh. P2) he had already sold to another person. The 2n d appellant claimed to have been arrested at his farm also being associated with exh. P2 which he said was stolen by an unknown person. The 1s t appellant admitted to have been found and arrested in possession of the mobile phone which he bought from an unknown person he referred to as a "Machinga." He denied stealing it. All the same, the trial Court was satisfied that the charge was established against all the accused persons except Mandela Msangwa (2n d Accused then) who was acquitted. The trial Court proceeded to convict the rest and sentenced them as above.

The High Court on first appeal, save for Maulid Omary who was discharged, sustained the appellants' convictions and sentences. Maulid Omary was discharged on the ground that diesel is a common commodity which can be acquired by any one. As for the appellants whose convictions were sustained the first appellate Court was of the view that the 2n d appellant confessed to have been found in possession of a stolen phone and not only failed to give acceptable explanation on how legally he come into possession of the same but also gave contradictory stories. As for the 1s t appellant, the High Court was firm that he was properly identified at the scene of crime and that he owned the shoe that was left at the scene of crime after the commission of the offence. In the memorandum of appeal the 1s t appellant, has raised four grounds protesting his innocence. These are: " 1 THAT, the first appellate Judge had erroneously upheld a conviction on the charge in which there was/is incurable irregularity in the charge sheet 2. THAT, the doctrine o f Recent possession o f the alleged cellular phone made Oking had wrongly invoked as neither was among the looted properties 5

mentioned in the charge sheet nor evidenciai proof o f ownership. 3. THAT ; the alleged caution statement was recorded out o f time (the basic period available for interviewing the person) so a violation to the CPA. Cap. 20 R.E. 2002 4. THAT, the trial and first appellate Judge erred in law and fact to rely on unfavourable visual identification , in so far as neither descriptive feature ever disclosed nor elementary factors had elaborated." On his part, the 2n d appellant raised five grounds which ran thus:- " 1. THA T, the trial and first appellate court had grossly erred in law and fact by relying on findings o f facts which was far-fetched, not from within the charge sheet, i.e. theft o f cellular phones made o f Oking. 2. THAT, the first appellate judge had erroneously based a conviction to the appellant on the charge with which there is incurable substantive irregularity in the charge sheet. 3. THAT, the alleged caution statement o f the appellant was wrongly relied by both below courts, as the same it was recorded out o f time limit (the basic period available for interviewing the person) in thus a violation to the Cap. 20. R.E. 2002. 6

4. THA T, the first appellate court had erred in law and fact to resolve the question o f appellants identity solely basing on familiarity claims, and in thus failed to examine and finally appreciate or discard it as opposed to the known yardsticks and elementary factors well provided for by the law and precedents.
5. THAT, the alleged shoe had wrongly relied as neither was among the looted article nor tangible evidence in support o f prosecution case." At the hearing of the appeal both appellants appeared before us in person with no legal representation. They adopted their respective memorandum of appeal and opted to first hear the learned State Attorney before they could later on respond. Mr. Nestory Paschal Nchiman, learned State Attorney, represented the respondent Republic. He was not ready to support the appellants' conviction. He gave five reasons for his stance. First; that the charge sheet was defective; Second; that the doctrine of recent possession was improperly applied to convict the appellants; Third; that there were irregularities in the chain of custody of the mobile phone make Oking; Fourth; that the appellants were not properly identified at the scene of

crime and Fifth; that the appellants' cautioned statements were invalid for being taken outside the prescribed time. Elaborating the aforementioned reasons, the learned State Attorney submitted that the charge was defective for being at variance with the evidence adduced in that it indicated that the two mobile phones belonged to the Company while they actually belonged to PW1 and PW2. He said the charge also indicated both phones were make nokia while one was make nokia and the other was make oking. When we asked the learned State Attorney to address the Court whether the charge sheet indicated the names of the victims of the alleged robbery and its consequences, the learned State Attorney was hesitant to concede that it did not. He argued that the charge indicated that the threat was directed to the security guards and evidence on record clearly showed that it was PW1 and PW2 who were injured. He was of the view that was enough and the appellants were not prejudiced because they came to know the names of persons who were threatened. In respect of the doctrine of recent possession having been improperly invoked, the learned State Attorney submitted that the 8

appellants were convicted on the basis of being found in possession of the stolen mobile phone and the shoe. He said there was no sufficient evidence by the prosecution establishing that the mobile phones belonged to the company and there was no evidence connecting the appellant, shoe and the commission of the offence of armed robbery. In support of his arguments he cited to us the case of Samwel Marwa @ Ogonga V.R, Criminal Appeal No. 74 of 2013, CA- Mwanza (unreported). On the issue of Chain of custody of the phone, the learned State Attorney argued that it was not clear as to how PW1 came to possess the phone make oking after it was stolen and its production in Court during trial. He again referred us to the Court's decision in Samwel Marwa @Ogonga Vs R, (supra) to bolster his arguments. Arguing in respect of identification of the appellants, the learned State Attorney was of the view that there was no proper identification since PW1, PW2, PW3, PW4 could not tell the intensity of light, the distance at which they observed the bandits and the time taken to observe the bandits as was stated by the Court in the case of Waziri Amani Vs R (1980) T.L.R.250. He pointed out that the shortfall in the identification was revealed in the evidence of PW5 who told the trial court that the 1s t

appellant was arrested while charging the phone and 2n d appellant was arrested on the basis of being the owner of the shoe left at the scene of crime and not because they were mentioned by the prosecution witnesses. Regarding the cautioned statements, the learned State Attorney attacked them on two fronts. First; that they were not read to the appellants after being recorded as was stated in the case of Robinson Mwanjisi and 3 Others V. R, [2003] T.L.R. 218. Second; that they were recorded after lapse of the statutory period of four hours after their respective arrests without seeking and obtaining an extension from the resident magistrate as mandatorily required under section 50 of the Criminal Procedure Act, Cap 20 R.E. 2002. Elaborating, he said, the 1s t appellant was arrested on 26/11/2013 and his statement was taken on 28/11/2013 while the 2n d appellant was arrested in 15/11/2013 but his cautioned statement was taken on 18/11/2013. For this reason, he urged the Court to expunge the cautioned statements from the record. On their part, both appellants agreed with the learned State Attorney and they had nothing to add. 10

We have given due consideration to the arguments by the learned State Attorney and the grounds of complaint faulting the High Courts' findings of sustaining the appellants' conviction as contained in the appellants' respective memorandum of appeal. Comprehensively examined, the appellants' respective memorandum of appeal bears a common complaint that their respective conviction was based on a defective charge. Even the learned State Attorney, conceded that the charge was problematic though on a different view that there was variance between the charge and the evidence. For this reason we find it wanting that we should consider that ground of appeal first. To appreciate the nature of the defect in the charge leveled against the appellants we hereby take pain to reproduce it:- STATEMENT OF THE OFFENCE: Armed Robbery c/s 287A of the Penal Code [Cap 16 R.E. 2002] as amended by miscellaneous Amendments No. 4/2004."

PARTICULARS OF THE OFFENCE: That Maulid s/o Omary Mandela s/o Msangwa, Bukuru s/o Akili and Bariki s/o Lugazira are jointly and together charged on 13th day of November, 2013 at about 02:00 hours at Ihanga village within Chato District in Geita Region, did steal two betrie of Scavator value at Tshs 1,000,000/=, ninety litres of diesel valued at Tshs 225,000/=, two mobile phone make Nokia valued Tshs 70,000/= cash money Tshs 275,000/= all total valued Tshs 1,552,000/= the property of Sinohydro Company and immediately before such stealing did injury security guards by using bush knife and clubs in order to obtain the said properties." The purpose of a charge is to enable the accused person to know the nature of the offence he is going to face and hence enable him build up his defence right from the time trial ensues. To that effect, the provisions of section 132 of the Criminal Procedure Act, Cap 20 R.E. 2002 (the CPA), lay

down the requirements which should be contained in a particular charge for it to be valid. That section states: " 132. 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 persons is charged, together with such particulars as may be necessary for giving reasonable information as to the nature o f the offence charged. Basing on the above legal position, the Court, in Mussa Mwaikumba V. Republic [2006] T.L.R 307, stated: " The principle has always been that an accused person must know the nature o f the case facing him. This can be achieved if a charge discloses the essential elements o f an offence." The issue to be resolved here is whether, in the present case, the charge sufficiently disclosed the nature of the offence of armed robbery. 13

As indicated above, the appellants were charged with the offence of armed robbery contrary to section 287A of the Penal Code. That section provides: " Any person who steals anythingana\ at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty o f robbery."(Emphasis added). As regards how the charge of robbery should be framed, section 135 (a) (iv) of the CPA requires the prosecutors to use form No. 8 of the Second Schedule to the CPA which is to this effect: " 8. ROBBERY PARTICULARS OF OFFENCE AB, on the day of in the region of.... stole a watch and at or immediately before or immediately before or immediately after, the time of such stealing did use personal violence to C.D." (Emphasis supplied)" 14

Elaborating on what the above form connotes; the Court, in the case of Amiri Juma Shaban and 2 Others Vs Republic, Criminal Appeal No. 290 of 2015 CA-Arusha Registry (unreported), stated; "From the above, it is dear that ; it is essential to allege in a charge o f robbery, the use o f personal violence to a named person." [Emphasis added]. In another case of Zubell Opeshutu v. Republic, Criminal Appeal No. 31 of 2003 (unreported), the Court had this to say:- "A prerequisite for the crime o f robbery is that there should be violence to the person o f the complainant..." The Court in yet another case of Kashima Mnadi v. Republic, Criminal Appeal No. 78 of 2011 (unreported), the Court stated:- "Strictly speaking for a charge of any kind of robbery to be proper, 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 o f actual violence or threat to the person 15

targeted to be robbed. So, the particulars o f the offence o f robbery must not only contain the violence or threat but also the person on whom the actual violence or threats was directed" [Emphasis added]. As eluded to above, in the present case, the charge did not name the person against whom the violence or threat was directed. It simply indicated "security guards" This, on the above authorities, was insufficient to disclose the essential ingredient of the offence of armed robbery. On this account, the charge fell far short from complying with the mandatory requirements of Sections 132 of the CPA and 287A of the Penal Code. The charge was therefore fatally defective. [See Kashima Mnadi v. Republic (supra). The above ground sufficiently disposes the appeal. We see no reason to consider other grounds of appeal. Given the above circumstances, we are constrained to invoke our powers of revision under Section 4(2) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2002 and we hereby revise the proceedings and judgments of the 16

courts below. We accordingly nullify the proceedings and judgment of the lower courts and quash and set aside both the conviction and sentence meted on the appellants. For the foregoing reasons, the appeal is allowed. Unless incarcerated on account of any other lawful cause, we order the immediate release of the appellants from prison. DATED at BUKOBA this 5th day of December, 2017 K.M. MUSSA JUSTICE OF APPEAL S.E.A. MUGASHA JUSTICE OF APPEAL S.A. LILA JUSTICE OF APPEAL I certify that this is a true copy of the original. P.W. BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL