IN
THE
COURT
OF
APPEAL
OF
TANZANIA
AT
ARUSHA
(CORAM:
LUBUVA,
J.A.,
NSEKELA,
J.A.,
And
KAJI,
J.A.)
CRIMINAL
APPEAL
NO.
109
OF
2002
BETWEEN
JOSEPH
MUNENE
ALLY
HASSANI
APPELLANTS
AND
THE
REPUBLIC RESPONDENT
(Appeal
from
the
conviction
of
the
High
Court
of
Tanzania
at
Moshi)
(Munuo,
J.)
dated
the
15th
day
of
February,2000
in
Criminal
Appeal
No.
33
of
1997
JUDGMENT
OF
THE
COURT
KAJI,
J.A.:
This is a second appeal.
In the District Court of Rombo at Rombo, JOSEPH MUNENE and ALLY
HASSANI who are hereinafter referred to as the 1st
and 2nd
appellants, respectively were charged with and convicted of armed
robbery contrary to sections 285 and 286 of the Penal Code, Cap 16.
They were each sentenced to 32 years imprisonment and 12 strokes of
the cane. They were also ordered to pay the complainant, PETER
NDELIVA (PW2), Shs. 8,600/= which they were alleged to have robbed
him. On appeal to the High Court their appeal was dismissed, hence
this appeal.
At the trial the
prosecution adduced evidence to the effect that, on 1st
August, 1996, at about 6.30 a.m., Peter Ndeliva (PW2) left his home
at Kitowo Olele Mashati for Kwamakorosha Village to draw water. He
had a bicycle, a 60 litre container and Shs. 8,600/= with which he
had intended to purchase maize. He left riding on the bicycle along
Njaa road. The well at Kwamakorosha Village where he was going to
draw water was about 5 kilometres from his home.
A short distance from
his home he met he appellants and a third person who later escaped.
The 1st
appellant was armed with something resembling a firearm which later
turned out to be a toy pistol. The 2nd
appellant had a matchet (panga). The third person who later escaped
had a gun. The 3 bandits stopped him by aiming the gun and the toy
pistol at him and ordered him to give them all the money he had. They
searched him and took the 8,600/= he had in the pocket of his pair of
long trousers. The 2nd
appellant cut the ropes which had tied tightly the 60 litre container
on the carrier of the bicycle. They left while one of them cycling
carrying the other two one of them carrying the container. PW1 ran
after them while raising an alarm. His alarm was responded to by
villagers who included JACOB MONINGO (PW3). They all ran after the
appellants and the 3rd
bandit. When the bandits arrived at a stream they bumped into it and
fell down thereby damaging the bicycle. They abandoned it together
with the container and the matchet and took to their heels towards
Tanzania/Kenya border. PW2, PW3 and other villagers pursued them. On
the way the 3rd
bandit who had a gun fired in the air to scare the pursuers. It would
appear it was through this threat that he managed to escape. But PW2,
PW3 and other villagers continued running after the appellants who
crossed the Tanzania/Kenya border into Kenya and took refuge in a
Masai boma. The owner of the boma LIKIMBIRAIWAI NGATOYA (PW4)
apprehended the appellants assisted by some Morani. They were handed
over to PW2, PW3 and other villagers who took them to the stream
where the bicycle, container and matchet were. The appellants were
later taken to Mkuu Police Station and later to Court.
In this appeal the
appellants who were not represented raised a total of 20 grounds of
appeal which basically revolve on non compliance with section 192 of
the Criminal Procedure Act, 1985, identification, burden of proof,
credibility of the prosecution evidence, age of the 2nd
appellant and severity of sentence.
At the commencement of
the trial the learned trial magistrate did not hold preliminary
hearing as required by Section 192 of the Criminal Procedure Act,
1985 on a mistaken belief that since the appellants were not
represented by an advocate, that provision of the law was
inapplicable. He was labouring under the old Section 192 before its
amendment which was effected by Act No. 19 of 1992. It is the
appellants' submission that failure to hold a preliminary hearing
which was mandatory, vitiated the proceedings in the case.
In reply Mr. Mulokozi,
learned Senior State Attorney who appeared for the respondent
Republic, conceded the error. However he was of the view that
non-compliance with that provision of the law did not vitiate the
proceedings because the appellants were neither prejudiced nor did
it cause failure of justice or delayed the disposal of the case.
At this juncture we
think it is convenient to set out the provisions of Section 192 (1)
as amended. It provides:-
"192 (1)
Notwithstanding the provisions of Section 229, if an accused person
pleads not guilty the court shall as soon as is convenient hold a
preliminary hearing in open court in the presence of the accused or
his advocate if he is represented by an advocate and the public
prosecution to consider such matters as are not in dispute between
the parties and which will promote a fair and expeditious trial."
It is apparent, in our
view that the provisions of Section 192 (1) are mandatory. Similarly
Rule 3 of the Accelerated Trial and Disposal of Cases Rules, 1988 is
couched in mandatory terms with regard to preliminary hearing. It
provides:-
3." In every case
where a person pleads not guilty to the charge the presiding
magistrate or judge shall hold a preliminary hearing on the day when
the person charged or arraigned in the presence of his advocate
either at his first or subsequent appearance in court, or if this is
not possible, then as soon as it is practical."
In MKOMBOZI RASHIDI
NASSORO V R - Criminal Appeal No. 59 of 2003 (unreported) this Court
had an opportunity to give a brief historical background of the
enactment of Section 192 in the Criminal Procedure Act 1985
(hereinafter the Act) in the following terms:-
" it is common
knowledge that prior to the
enactment of the Act,
the then Criminal Procedure Code, 1966 (Cap 20) did not contain a
provision similar to Section 192. It is apparent however, that as a
result of complaints
of
dissatisfaction
with
the
slow
pace
of
the
disposal
of
cases,
parliament
in
its
wisdom
enacted
the
Act
which
introduced
Section
2.
The
objective
of
the
legislation
was,
as
stated,
to
accelerate
trials
and
the
disposal
of
criminal
cases.
From
the
wording
of
the
legislation
as
seen
from
the
section
192
of
the
Act
and
rule
3
it
seems
clear
to
us
that
the
legislature
intended
to
introduce
a
wholistic
scheme
that
would
apply
in
criminal
trials.
This
is
in
order
to
accelerate
speedy
disposal
of
criminal
cases.
That
is,
at
the
commencement
of
a
trial
where
an
accused
person
pleads
not
guilty,
once
the
procedure
laid
down
under
Section
192
of
the
Act
is
brought
into
play,
it
is
mandatory
for
the
trial
court
to
strictly
comply
with
the
procedure
set
out
in
each
of
the
subsections
of
Section
192.
This
is
the
procedure
which
relates
to
the
preliminary
hearing.
Failure
to
follow
the
procedure
laid
down
under
say,
sub-section
(3)
and
the
rest
of
the
subsections
is
fatal
to
the
proceedings."
The Court then cited
the case of MT. 7479 SGT. BENJAMIN HOLELA V
R (1992)
TLR 121 where it was held:-
"Section 192 (3)
of the Criminal Procedure Act, 1985 imposes a mandatory duty that
the contents of the memorandum must be read and explained to the
accused."
The Court cited also in
this respect the case of JOHN KASANZA AND PAULO S/O DOMINICK V R -
Criminal Appeal No. 27 of 2001 (unreported). That, in our view, is
the position where the procedure laid under Section 192 of the Act
is brought into play.
But in the instant case
the learned trial magistrate did not hold a preliminary hearing at
all as required by the law. The crucial issue therefore is whether
the proceedings in this case were vitiated.
We have already
observed in this judgment that the intention of the legislature in
enacting Section 192 of the Act was to accelerate and speed up
trials in criminal cases. This was emphasized also by the Court in
EFRAIM LUTAMBI V R, Criminal Appeal No. 30 of 1996 (unreported)
where it said:-
"— the
provisions of S.192 of the Act are very useful in the administration
of Criminal justice. They were intended by the legislature not only
to reduce the costs of criminal trials in the country, but also to
ensure that those trials are, without prejudice to the parties,
conducted expeditiously."
In the instant case, we
think the issue is whether the proceedings were vitiated by the
omission of the trial court to hold preliminary hearing. From our
perusal of the record we have found nothing suggesting that the
appellants' trial which proceeded without holding a preliminary
hearing either delayed or caused extra costs or prejudiced the
appellants. In fact through the appellants' defence as recorded in
the proceedings, the appellants denied all essential matters of the
case necessitating the prosecution to call witnesses to prove them.
Also the trial took only one month and ten days, that is from
12.9.96 till 22.10.96.
Under the circumstances
we are satisfied that the proceedings which were conducted without
invoking the procedure laid down under Section 192 of the Act, were
not vitiated. With due respect, through an oversight, it seems the
learned judge on first appeal did not address this issue. Had the
judge addressed her mind to this aspect, we think she would have
come to this conclusion.
Coming to the merit of
the appeal, the crucial issue is the identification of the
appellants PW2 testified at length how on the material day at 6.30
a.m. he left his home for drawing water, how he was invaded by the
appellants who robbed him of his bicycle, Shs. 8,600/= and a 60
litre container. His evidence was supported by PW3 who responded to
the alarm raised and both of them together with other villagers
pursued the appellants up to the boma of PW4. It was a continuous
pursuit from when they robbed PW2 up to when they were apprehended
in PW4's boma. It was during day time. There was therefore no
question of mistaking the appellants for somebody else. Even PW4
confirmed that it was the appellants who took refuge in his boma
while being pursued by PW2, PW3 and others, until the appellants
were apprehended thereat.
The appellants
complained that the prosecution evidence was not credible in view of
the contradiction in the evidence of PW1 on one hand and PW2 and PW3
on the other on whether it was PW1 who picked up the live ammunition
as stated by PW1, or a woman as stated by PW2 and PW3. In our view,
this contradiction is minor and did not go to the root of the case.
The appellants also complained that they were not found in
possession of any of the stolen properties. Again this complaint is
lame in view of the abundant evidence by PW2 and PW3.
The 2nd
appellant complained that at the material time he was 16 years old.
We have noted the charge sheet shows his age to be 21 years, and his
own statement when giving his evidence where he said he was 21 years
old. This complaint therefore has no merits. In fact he had never
raised it before the courts below. It is nothing but an afterthought
which has no merits.
The 1 appellant who
claimed to be a Kenyan citizen, complained why he was tried in
Tanzania, and also why he was not assigned legal aid on government
expenses. We have carefully considered this. It is common knowledge
that the 1st
appellant was tried in Tanzania because the offence was committed in
Tanzania. He was not assigned legal aid on government expenses
because the government of Tanzania does not provide legal aid on
government expenses in cases of this nature, regardless of the
nationality of the accused.
As far as sentence is
concerned the minimum sentence for the offence of armed robbery as
provided under Act No. 10 of 1989 as amended by Act No. 6 of 1994 is
30 years imprisonment. According to the circumstances of this case
there were no aggravating factors calling for a sentence higher than
the minimum. We think the learned trial magistrate had intended to
impose the minimum sentence which is 30 years imprisonment. Likewise
the learned judge on first appeal (Munuo, J. as the then was) was
labouring under the same impression when she remarked in the
judgment that the appellants were each sentenced to 30 years
imprisonment plus 12 strokes of the cane. Since the sentence of 32
years imprisonment appears to have been inadvertently imposed, it is
hereby set aside and substituted with a sentence of 30 years
imprisonment.
In the event, save for
the substitution of the sentence the appeal is otherwise dismissed in
its entirety.
DATED at ARUSHA this 5th
day of October, 2004.
D. Z. LUBUVA
JUSTICE OF APPEAL
H. R. NSEKELA JUSTICE
OF APPEAL
S. N. KAJI
JUSTICE OF APPEAL
I
certify that this is a true copy of the original.
