IN THE COURT OF APPEAL OF TANZANIA AT MWANZA

(CORAM: RUTAKANGWA, J.A.,MASSATI, J.A., And MUGASHA, J.A.)

CRIMINAL APPEAL NO. 220 OF 2014

SAMWEL MARWA ROSWE @ MASABA........................................... APPELLANT

VERSUS

THE REPUBLIC...................................................................................... RESPONDENT

(Appeal from the decision of the High Court of Tanzania at Mwanza)

(Bukuku, J.)

dated the 11^th day of June, 2015 in

Criminal Appeal No. 4 of 2014

……….

JUDGMENT OF THE COURT

18^th & 21^st October, 2016

MASSATI, J.A.:

The appellant and another person whose first appeal was allowed by the High Court (Mwangesi, J.) was convicted of two counts of conspiracy to commit an offence, and armed robbery, contrary to sections 384 and 287 A of the Penal Code. His appeal was dismissed in its entirety by Bukuku, J. on 11/6/2015. He has now come to this Court in a second appeal.

The brief facts that led to the present appeal are that one LILIAN w/o ABIHA EMMANUEL PW1, runs a grocery at her house at Nyangoto village. One Agaton s/o Agustino Katikilo was her employee. On 20/6/2011 two persons visited the grocery. First at 2.00 p.m. and then at 8.00 p.m. (20.00 hrs.). When

they visited the second time, they were armed with guns and local made

weapons. By use of the said arms, they took away 2 cell phones (Nokia) worth 140,000/= belonging to Katikilo and several airtime vouchers, worth Tshs. 125,000/=, one handset worth Tshs, 100,000/= and a bottle of gin called Konyagi worth Tshs. 15,000/= the properties of PW1. In the course of the robbery a watchman one MWIKABWE S/O MWITA WAGARA was injured. After this, the bandits vanished.

The prosecution case was that the appellant was one of the bandits. So, after some investigations, the appellant and his colleague aforementioned were charged with three counts. The charges looked like this:

CHARGE SHEET

NAME AND TRIBE OR NATIONALITY OF THE PERSON(S) CHARGED

1. SAMWEL S/O MARWA ROSWE @ MASABA TRIBE: KURYA

AGE:45 YRS OCCP: PEASANT RELG: CHRISTIAN

RESD: KETAWASH VILLAGE

2. MARIBA S/O CHACHA GESABO MARWA @ AMOS MARIBA TRIBE: KURYA

AGE: 43 YRS

ACCP: PEASANT

RELG: CHRISTIAN

RESD: KANGARIAN VILLAGE 1^ST COUNT:

STATEMENT OF OFFENCE: Conspiracy to commit offence c/s 384 of the penal code CAP 1 Vol. 1 of the laws.

PARTICULARS OF OFFENCE:

That SAMWEL S/O MARWA ROSWE @ MASABA and MARIBA S/O CHACHA GESABO MARWA @ AMOS MARIBA are jointly

and together charged at the unknown time, date and place within Tarime District in Mara region did conspire to commit offence to wit armed robbery.

2^ND COUNT:

STATEMENT OF OFFENCE: Armed robbery c/s 287A of the penal code CAP 16 Vol. 16 of the laws.

PARTICULARS OF OFFENCE: that SAMWEL S/O MARWA ROSWE @ MASABA and MARIBA S/O CHACHA GESABO

MARWA @ AMOS MARIBA are jointly and together charged on 20^th day of June 2011 around 20:00 hrs. at Nyamongo area within Tarime District in Mara region did steal two mobile phones made NOKIA valued at Tshs. 140,000/= the property of one AGATON S/O AUGUSTINE KATIKILO and immediately

before or after stealing did use fire arm and bush knife to obtain or retain such property.

3^RD COUNT:

STATEMENT OF OFFENCE: Armed Robbery c/s 287A of the penal Code CAP 16 Vol. 1 of the laws.

PARTICULARS OF OFFENCE: that SAMWEL S/O MARWA ROSWE @ MASABA and MARIBA S/O CHACHA GESABO

MARWA @ AMOS MARIBA are jointly and together charged on 20^th day of June 2011 at Nyamongo area within Tarime District in Mara Region did steal air time vouchers valued at Tshs. 100,000/= cash money Tshs. 125,000/= one mobile phone valued at Tshs. 100,000/= and six bottles of Konyagi valued at Tshs. 15,000 all making the total value of Tshs. 340,000/= the property of LILIAN W/O ABIHA EMMANUEL and immediately before or after stealing such properties did use fire arm and bush knife to obtain or retain such properties.

STATION …………………….             …………………………………..

DATE ………………………                 PUBLIC PROSECUTOR

After a total of 8 prosecutions witnesses and 10 documentary exhibits, the trial Court found that the appellant had a case to answer. He gave a sworn evidence and denied committing the offence. As we do not intend to go into

the merits of the appeal, we do not think that it is necessary to restate the

substance of all the evidence on record. Suffice if to say that he was nevertheless convicted and sentenced to 5 years in the first count, and 30 years imprisonment in the third count. Hence the present appeal.

At the hearing of the appeal, the appellant appeared in person ready to argue his 6 grounds of appeal. The said grounds of appeal are as follows:-

MEMORANDUM OF APPEAL

1. 1. That, the essential ingredient of robbery i.e. stealing

was not proved by any of the claimed victims indicated in the charge sheet.

1. 2. That, the charge sheet is silent as to who was threatened, thus the definition of robbery as stipulated by the penal code cap 16 was no met.
   3. That, identification parade as was conducted has not conformed to the statutory                    requirements which are contained in police general order (PGO) No. 232.
   4. That, the alleged caution statement of the appellant

has wrongly admitted and relied upon as though retracted by the appellant no enquiry conducted to test its voluntariness or otherwise.

1. 5. That, the alleged caution statement was recorded out

of time (the basic period available to interview a suspect) in thus a violation to the CPA Cap 20 R.E. 2002.

1. 6. That, identifying witnesses failed to describe the appellant during and after the incident.

Before he started to argued his appeal, he allowed the State Attorney to argue first, reserving his right of reply.

The respondent/Republic was represented by Mr. Hemed Hamad Halfani, assisted by Ms. Subira Mwandambo both learned State Attorneys. Mr. Halfani took the lead.

In a brief but focused submission, Mr. Halfani submitted that the respondent supported the appeal on the strength of the first two grounds of appeal. Starting with the second ground, he submitted that in a charge of armed robbery,   it was essential to disclose the name of the person to whom the violence was perpetrated. In support he referred us to section 132(1) and item 8 of the Second Schedule to the Criminal Procedure Act Cap. 20 R.E. 2002 (the CPA) and the decision of BARTAZAR GUSTAF & ANOTHER V.R. Criminal Appeal No. 266 of 2014 (unreported).

On the first ground, Mr. Halfani submitted that it was essential to prove the theft (stealing) before proving robbery.   He referred us to the decision of this Court in DICKSON LUVANA V.R Criminal Appeal No. 1 of 2005 (unreported). He went on to submit that in this case, there was no evidence of the theft.

On account of those irregularities, Mr. Halfani prayed that we exercise our

revisional powers under section 4(2) of the Appellate Jurisdiction Act Cap 141

R.E 2002 (the AJA) to revise and quash the proceedings of the lower courts. He also prayed that there be no order for a retrial as the evidence on record was deficient. He thus asked us to set the appellant free.

The appellant joined hands with the respondent’s submission and had nothing useful to add.

This appeal may be decided on a very narrow compass, premised from the second ground of appeal.

There is no dispute that as it reads, although the name of the owner of the properties allegedly stolen is mentioned in the count of robbery, the identity of the person against whom the violence was directed is not disclosed. This is contrary to the sample form prescribed for preferring such offence as provided under Form No. 8 to the Second Schedule to the CPA that sets out the manner of stating particulars for the offence of robbery.

ROBBERY

………….

PARTICULARS OF OFFENCE

A.B. on the …. day of …. of …… in the region of …… stole a watch and at an immediately before or immediately after the time of such steeling did use personal violence to C.D.

This is the form which is prescribed for use under section 135 (a) (iv) of the CPA, wherein it is directed that any related charges must conform to them as nearly as possible.