Sam Sempembwa and Another vs Republic (Criminal Appeal No. 169 of 2010) [2013] TZCA 2189 (12 November 2013)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MBAROUK, J.A., MANDIA, J.A., And l(AIJAGE, J.A.) CRIMINAL APPEAL NO. 169 OF 2010

1. SAM SEMPEMBWA }
2. HERMAN FRANCIS SARUA ..................... APPELLANTS VERSUS THE REPUBLIC ............................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania · at Dar es Salaam) (Mushi, J.) dated the 29 th ~ay of April, 2010 m HC. Criminal Appeal No. 46 of 2007 JUDGMENT OF THE COURT 1 st & 21 November, 2013 l<AIJAGE, J.A.: The two appellants herein were arraigned before the Resident Magistrates' Court of Dar es Salaam, at Kisutu, to answer a charge of armed robbery preferred under sections 185 and 286 of the Penal Code (Cap. 16 R.E. 2002). From a total of five (5) witnesses, the prosecution side led evidence to prove that on the 28 th day of March, 2003 at. about 19.30 hours at Mbezi Beach within Kinondoni District in Dar es Salaam l

Region, the appellants used a gun to threaten and forcibly dispossess one Leonard Ntukula, of a motor vehicle registration No. TZT 5687, the property of the Christian Social Services Community. Following a full trial, the appellants were found guilty as charged. Consequently, they were sentenced to serve a term of thirty (30) years imprisonment and twelve (12) strokes of the cane. They were aggrieved. Their appeal to the High Court was unsuccessful, hence the present appeal in which the appellants have filed a joint memorandum listing seven (7) grounds of complaints. Before us, the appellants appeared in person, fending for themselves. The respondent Republic was represented by Mr. Mutalemwa Kisenye, learned State Attorney. Before the appeal was heard on its merits, the parties were invited to address us on the consequences of a patent fundamental defect in the judgement of the trial court which we discovered in 2 {

the record of appeal as lodged. Apparently, the trial court meted out a sentence against the appellants without there being a conviction entered in conformity with the provisions of section 235(1) of the Criminal Procedure Act, Cap. 20, R.E. 2002 (the Act). Addressing the legal point raised by this Court suo motu, the learned State Attorney hastened to concede the failure by the trial court in its judgement to enter conviction before passing a custodial sentence which the appellants are currently serving. He contended that such an omission was fatal and violative of the mandatory provisions of section 235(1) of the Act. In view of the said glaring defect, the learned State Attorney implored us to nullify the trial court's judgement. He further pressed us to nullify, quash and set aside the proceedings and judgement of the High Court based on the null decision of the trial subordinate court. Similarly, he was of the view that the record be remitted to the trial court to compose the judgement in accordance with the law. 3

The appellants who are laymen, had nothing useful to comment on the legal point raised, but urged us to take into account the period they have so far spent in prison. On our part, we are, with respect, in entire agreement with the learned State Attorney. It is common ground that in its judgement dated 12/11/2006, the trial court never convicted the appellants. At page 70 of the record, the trial court appears to have concluded its judgement thus:- "Therefore/ the prosecution case proved beyond all reasonable doubt and I find both accused persons guilty with the offence of armed robbery as charged in the charge sheet. Sgd: Chusi - RM 12/11/2006/~ . The law as it stands currently, strictly enjoins the trial court to specifically enter conviction after being satisfied of the guilty of the 4

accused person. In this regard, Section 235(1) of the Act is relevant and it provides:- "The court having heard both the complainant and the accused person and their witnesses and the evidence/ shall convict the accused and pass sentence upon or make an order against him according to law or shall acquit him or shall dismiss the charge under section 38 of the Penal Code. " [Emphasis supplied}. Since in this case under scrutiny no conviction was entered in terms of section 235(1) of the Act, there was no valid judgement conforming with subsection (2) of section 312 of the Act which provides:- "S. 312(2) In the case of conviction the Judgement shall specify the offence of which and the section of the Penal code or other law under which the accused person is convicted and the punishment to which he is sentenced [Emphasis supplied] 5

This Court has held on numerous occasions that a judgement which lacks a conviction in terms of section 235(1) as read with section 312(2) of the Act is no judgement at all. (See, for instance, AMANI FUNGABIKISI v. R; Criminal Appeal No. 270 of 2008, SHABAN! IDDI JOLOLO AND THREE OTHERS v. R; Criminal Appeal No. 200 of 2006, FREDRICK s/o GODSON AND ANOTHER v. R; Criminal Appeal No. 88 of 2012, KHAMIS RASHID SHABAN v. DIRECTOR OF PUBLIC PROSECUTIONS ZANZIBAR; Criminal Appeal No. 80 of 2012 (all CAT unreported). In this case, we have already demonstrated that the trial court's judgement carries no conviction. On that account, it is an invalid judgement. On appeal, it could neither be upheld nor dismissed. In that spirit, we find that the High Court judgement based on an invalid judgement of the trial court is also a nullity. We are not oblivious of the period the appellants have so far spent in prison. However, considering the pecuriality of the facts, the G

circumstances surrounding this case and the interest of justice, we are disposed to make an order that will eventually enable the appellants lodge a valid appeal to the High Court. Acting under Section 4(2) of the Appellate Jurisdiction Act, we nullify the proceedings and set aside the judgement of the High Court and remit the record to the trial court with directions to compose the judgement in accordance with the law. Should the appellants wish to appeal after conviction, it is further hereby directed that the High Court should expedite the hearing and the disposal of the appeal. We so order. DATED at DAR ES SALAAM this lih day of November, 2013. M.S. MBAROUK JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL S.S. KAIJAGE JUSTICE OF APPEAL I certify that this is a true co~~~e original. Z.A.~A · DEPUTY REGISTRAR COURT OF APPEAL 7