Abdallah Issa vs Abdallah Ndolo ((PC) CRIMINAL APPEAL NO. 3 OF 1997) [1999] TZHC 187 (3 March 1999)

KAJI, J. IN THE HIGH COURT OF TANZANIA AT MTWARA (PC) CRIMINAL APPEAL NOo 3 OF 1997 (CONSOLIDATED WITH (PC) CRIMINAL APPEAL NO& 1/98) (From the decision of Lindi District Court Criminal Appeal No., 76/96) ABDAtLAH ISSAo O O O d O O O O • O O O O oAPP:CLIJ.l'f'r versus: ABDALLAH NDOt.O ••••••••. . •• RESPONDENT The appellants (jl}A_:Q.~ ISSA . j].) . MALIO'J:'A J·,1.AK(?J}]½_ and were l3J_;·]lAFJ§j\IDILjointly charged with two counts before Ivlingoyo Prima.ry Court, namely:- :t _ C: Unlawful wounding c/ s 228( 1) of the Penal Code Cap 16. 2nd C~: Stealing c/s 265 of the Penal Code Cap 160 They deniedo They were acquitted on the first. cow1t., However they Here found guilty on the 2nd count and were convicted accordingly. They were each sentenced to 3 years imprisonment under the Minimum Sentences Act, 1972. They were aggrievedo Their appeals to the District Court were dismissed. The conviction of theft c/s 265 P.C. was set aside and substituted with that of robbery c/s 285 &: 286 P.Ci Their sentences of 3 years imprisonment were set aside a,-id substituted thereat with that of 30 yeexs imprisonment for eacho Their appeals are against the substituted conviction and sentence. The learned Senior State Attorney Nr. Malamsha who represented the Republic at the hearing of these appeals did not support the substituted conviction and sentence on the ground that the offence of robbery c/s 285 & 286 PoCo is not minor to that of theft c/s 265 P.C. He said it is improper to convict an accused person with a more serious offence than he was ariginally chargedo He cited the cases of ( !J_J..<?,HN 0 5)]?}£.-.-tQJ}.J'l ~~?.J .. 19<:t.t.1~9P_li9!'29 C ii) EJ3I-r~~-.QSE,PH~~v s ., R - < 1969) HCD !'!9 • 11±.Z • The appellants. were alleged to have stolen 5 kgs of cashevm"',.- 1aJ.ued at shs. 2000/- fI'.om a cashe11mut shamba belonging to ShiriJr:, .La Hasiota · Narunyu. They were alleged to have been among a f1' ... -up of ·about 10 people who invaded the said shamb.a, and that one 0-r- r"1'3nJ in the nam of KASS]}1 (!lot brought before. the Court) injured. i:r watchman PW1 ABDALLAH NDOLO · -- ----- ... -•-------.-M,:,a•-

.,; 2 during the fracas. In admitting these appeals I minuted as follows:- 99Admitted to consider whether it was proper for the first appellate Court to substitute the cffence of simple theft with that of armed robbery., Also whether Shirika la Masista Narunyu. is covered by the Minimum Sentences Act, 1972. 11 In hammering down the appellants with the offence of armed robbery c/s 285 and 286 PoC. the learned Resident Magistrate had this to say, and I quote:- 111 am well aware that ,the provisions of s. 33(2)- (6) of the 3rd Schedule to the Magistrates Courts Act, 1984 do not empower the Court to substitute · conviction of stealing with that of robbery, but.· the revisionary powers vested to this Court, in my view, allow this Court to alter the charge and convict an accused with offence established by faets (evidence on record) if such act does not occassion a failure of justice." With respect I enteirely agree with the learned Magistrate's pr?position. But this does not mean that an appellate Court using its revisionary powers can do what is not allowed by lawo The law clearly prohibitsto change a conviction of a lesser serious offence to that of a more serious offence. The true meaning of the learned Magistrate• s proposition is that, a person charged with an offence may be convicted of another offence if the first - mentioned offence consists of a number of particulars, a combination 6f some of which constitute the other of:fence 1 i:t the relevant matters are proved and such other offence is within the jurisdiction of the Courto For example, the offence of robbery with violence consists o-f theft with violence. Where a person is charged with robbery with violence and the facts prove that he only stole but did not use violence or force he may be convicted with theft although he was not charged with that offence. But when he is cha:rgod with theft and tho £aoe provo that he used force or violence in the commission of that theft, he cannot be convicted with robbery because the offence of robbery consists of more ingredients than simple theft which must be brought to ·the attnetion of the accused during the trial and not when the trial is over, when he cannot defend himself. Also the offence of robbery c/s 285 and 286 PeC. i8 morG serious than that of simple theft c/s 265 P.C.

3 It is only very fortunat.e_that para 33(1)(b) 3rd Schedule to the .. - .... Magistratetd::ourts Act, 1984 is not s·o. happily :-1orded as s. 300( 1) ( 2) of the Criminal Procedure Act, 1985. Sometimes it confuses f:l_ome Magistrates in the same manner as it did to the learned Resident i'fa.gistrate; · · ---- Since it was improper for the first appellate Court to change the conviction of theft to that of armed robbery, that conviction of robbery cannot stand. It is hereby quashed and the sentence of 30 years imprisonment imposed thereat is set aside. As far as the sentence of 3 years imposed by the trial Court is concerned, there is no doubt that the learned trial Magistrate went astray. In sentencing the appellants to 3 years imprisonment the learned trial Magistrate remarked that Shirika la Masista Narunyu is covered by the Minimum Sentences Act 1972 by virtue of s. 3(h) of that Act. This was unfortunate. s. 3 defines i 1 specified authorities.,e Para (h) 11 ci.efines specified authority1 1 to include any body corporate estblished by or under any written law other than the Companies Ordinance Cap 212. There is nothing indicating that Shirika la Masista Nyu is a body Corporate established by or Tu.'1.der any written law other than the Copanies Ordinance Cap 212. It is therefore not covered by the . . . Minimum Sentences Act, 1972 and the appell2nts were wfongly sentenced under that Act The sentt::ii.ce of 3 years imprisonment is hereby set aside and substituted thereat with a sentence which will result into immediate release of the appellcmts unless lawfuily held in connection with another charge or charges. Lastly I \vOuld only like to remark in passing that I was highly impressed by the 2nd and 3rd appellants in their joint memorandum of appeal where they cited a total of about 15 authorities (cases) on the question of whether :f.t is proper for a.'1. appellate Court to change a conviction of simple theft (minor offence) into that of robbery with violence (more serious offence)e Most of those authorities were very relevant to these a-_ppcals. I think the prison authority 'll3.S very kind to themo It was a recommendable jobe The appellants v appeals have been allowed to the extent stated above• s. :iN. KAJI JlJDGE S. N .- KAJI - JUDGE 3.3.99 I ·- .... --