Court name
Court of Appeal of Tanzania

John Joseph Onenge & Julius Senene vs Republic () [1993] TZCA 8 (21 May 1993);

Law report citations
1993 TLR 131 (TZCA)
Media neutral citation
[1993] TZCA 8

Kisanga, J.A., delivered the following considered judgment of the court: I

A Both appellants were convicted by the District Court for the offence of armed robbery contrary to ss 285 and 286 of the Penal Code and were each sentenced to thirty years' imprisonment. They appealed unsuccessfully to the High Court hence this second appeal. In this Court both appellants B were advocated for by Mr C J Maruma Advocate; the respondent Republic was represented by Mrs M Lyimo, Senior State Attorney.
Both Courts below found that the house of the complainant (PW2) was broken into in broad daylight and a number of items of property were stolen from there. The appellants were seen and identified at C the scene but they managed to run way and could not be arrested. Subsequently, however, the appellant Julius Senene was found in possession of a radio which was one of the items stolen from the broken house of PW2.
Mr Maruma filed and argued a total of nine grounds of appeal seeking to raise a number of points of D law. He strongly criticised the High Court for not holding that the charge was defective. The charge as laid read as follows:
`Offence section and law: Armed robbery c/s 285 and 286 of the Penal Code cap 16 vol 1 of the Particulars of E Offence: John s/o Joseph Onenge and Julius s/o Senene Mosha are charged on 25th day of February 1991 at about 12:30 hrs at Ismalia Road within the Municipality and District of Moshi, Kilimanjaro Region did steal one pistol make Browning No 5201 and 14 bullets valued at Shs 150,000/= one Normade radio band 6 valued at Shs 60,000/=, one F wrist watch Oris valued at Shs 16,000/=, one golden necklace valued at Shs 25,000/= and cash Shs 32,000/=, all total valued at Shs 281,000/= the property of Seby s/o George Anjaria and immediately before the time of such stealing did threaten one Victus s/o Joseph by firing one bullet into the air in order to obtain or retain the things G stolen.'
The learned counsel vigorously contended that armed robbery as an offence does not exist under the Penal Code. To use his own words `That offence is yet to be created by the Legislature'. In his view H the only offence which exists under the Penal Code is that of robbery as created by s 285 and punishable under s 286 of the Code.
Referring to a passage in the judgment of the High Court in which the learned Judge had stated that the appellants were properly sentenced under Act 10 of 1989, Mr Maruma submitted that that was completely wrong because the said Act 10 of 1989 did not create the offence of armed robbery. In his I view that Act only makes

penalty provisions which prescribe inter alia a minimum of 30 years' imprisonment for armed robbery A an offence which is non-existent. He strongly emphasized the point that the provision under Act 10 of 1989 prescribing a minimum of 30 years' imprisonment for armed robbery is meaningless unless and until Parliament enacts a law creating the offence of armed robbery. B
We have considered these arguments very carefully. Mr Maruma is quite right in submitting that Act 10 of 1989 does not create the offence of armed robbery. It only makes provisions for the punishment of different types of robbery. But we think that it is wrong to say that the offence of armed robbery does not exist under our law. Our view is that on a true construction of s 285 and 286 of the C Penal Code read together with s 5(b) and (bb) of the Minimum Sentences Act as amended by Act 10 of 1989, the offence of armed robbery does exist. The provisions of these sections are set out hereinbelow: Section 285 of the Penal Code provides that: D
`285. Any person who steals anything and, 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 of the felony termed "robbery".' E
Section 286 of the Code provides that:
`286. Any person who commits the felony of robbery is liable to imprisonment for twenty years. If the offender is F armed with any dangerous or offensive weapon or instrument or is in company with one or more other person or persons, or if at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he is liable to imprisonment for life, with or without corporal punishment.' G
And s 5(b) and (bb) of the Minimum Sentences Act as amended by Act 10 of 1989 provides inter alia that:
`5(b) where a person is convicted of robbery, the Court shall sentence him to imprisonment for a term of not less than fifteen years; H
(bb)‚ where any person is convicted of armed robbery, the Court shall sentence him to imprisonment for a term of not less than thirty years; . . .'
Upon reading the three provisions together it is discernible that I

A s 285 of the Penal Code creates the genus of the offence of robbery by defining that offence and spelling out the ingredients which constitute it. Section 286 of the Code prescribes punishment for ordinary robbery and for aggravated types or species of robbery. Thus the section prescribes the B punishment of twenty years' imprisonment for ordinary robbery and life imprisonment with or without corporal punishment as a general punishment for various types or species of aggravated robbery, including armed robbery. And s 5(b) and (bb) of the Minimum Sentences Act as amended by Act 10 of 1989 prescribes a minimum of fifteen and thirty years' imprisonment for ordinary robbery and C armed robbery respectively.
Upon this construction, therefore, the appellants who were found to have been armed with a pistol at the time of committing the offence, were properly charged with and convicted of the aggravated species of armed robbery under s 285 and 286 of the Penal Code. Likewise they were properly D sentenced to a minimum of thirty years' imprisonment under s 5(bb) of the Minimum Sentence Act as amended by Act 10 of 1989.
The view was also expressed that the charge as laid ought to have cited in the statement of offence Act 10 of 1989 as the penalty provision on which the charge was based, and that failure to do so did Eprejudice the appellants. We think, however, that this was not necessary. The statement of offence did cite s 285 and 286 of the Penal Code as the provisions on which the charge was based. Furthermore the statement of offence alleged armed robbery and the particulars of the offence alleged that the appellants used a pistol in committing the offence. That in our view sufficiently F informed the appellants as to what type of aggravated robbery they were being charged with, so that they could prepare their defences accordingly. We, therefore, can find no justification in Mr Maruma's criticism that the charge was defective.
G Closely connected with this was the allegation that the District Court had acted in excess of its jurisdiction when sentencing the appellants to thirty years' jail. Mr Maruma contended that in terms of s 170 of the Criminal Procedure Act the sentencing power of the District Court is limited to a H maximum of only eight years' imprisonment, and therefore that court had no authority to impose thirty years on the appellants. It seems to us, however, that the learned Counsel has misapprehended the meaning of s 170 of the Criminal Procedure Act. The relevant provisions of that section state that:
I `170(1) A subordinate Court may, in cases in which such sentences are authorised by law, pass the following sentences -

(a) imprisonment for a term not exceeding five years; save that where a Court convicts a person for a scheduled A offence it may, if such sentence is authorised by law, pass a sentence of imprisonment for such offence for a term not exceeding eight years;'
This is no doubt the provision on which Mr Maruma relied for his submission. However, the learned B Counsel failed to grasp the import of ss (2) which qualified the provisions of ss 91) above. The relevant provisions of ss (2) read as follows:
`(2) Notwithstanding the provisions of ss (1) - C
(a) a sentence of imprisonment -
(i) for a scheduled offence which exceeds the minimum term of imprisonment prescribed in respect of it by the Minimum Sentences Act 1972; D
(ii) . . . .
(b) . . . .
(c) shall not be carried into effect, executed or levied until the record of the case, or a certified copy of it, has been transmitted to the High Court and the sentence or order has been confirmed by a Judge.' E
The combined effect of these provisions as reproduced is that a Dubordinate Court first, is enjoined to impose on the offender the minimum prison term prescribed for the offence by the Minimum Sentences Act; in other words the Court has no discretion in the matter to pass any lesser sentence. F And secondly, in a deserving case, the Court may in its discretion sentence the offender to a prison term which is longer than the minimum prescribed for the offence but where this is done, it is required that such longer prison term has to be confirmed by a judge of the High Court before it is G carried into effect, executed or levied.
In the present case, the prison term of thirty years imposed by the District Court was, as was shown earlier, the barest minimum prescribed for the offence by the Minimum Sentences Act as amended by Act 10 of 1989. In terms of ss (2) as reproduced above, that sentence was clearly within the H sentencing powers of that Court. Indeed, not only was the District Court obliged to pass that sentence, but it could also in its discretion if the circumstances called for a stiffer penalty, have meted out a longer prison term subject, however, to confirmation by the High Court. I
In yet another ground Mr Maruma criticised the High Court for

A failing to hold that the trial by the District Court was a nullity under s 225(1) and (4) of the Criminal Procedure Act. The two subsections of s 225 above cited in effect make in unlawful for a court in the trial of a case such as this one to adjourn the case from time to time and to remand the accused in B custody for an aggregate exceeding sixty days, except upon certificate by specified officers stating the need and grounds for such further orders of adjournment and of remand custody of the accused.
Admittedly there was a breach of the mandatory statutory provisions of s 225(1) and (4) of the C Criminal Procedure Act. The Trial Court made orders of adjournment and of remanding the appellants in custody for an aggregate of more than sixty days without any certificate of a specified officer stating the need and grounds for such further orders. Now the question is whether such D breach rendered the trial a nullity as urged by Mr Maruma. We think it did not. The mandatory provision under s 225(1) and (4) mentioned above is one of a procedural nature. It is a provision which seeks mainly to safeguard the liberty of an accused person. It was not alleged nor is it apparent from the record, that the breach of that provision has affected the appellants' trial or prejudiced them in any way, say by making it impossible to find or to communicate with Counsel. In E our view such breach of a mandatory statutory provision which breach does not affect the substance of the trial does not render the trial a nullity. He accordingly rejects this ground. We should add, however, that the Trial Courts should be more vigilant in the application of s 225(1) and (4) of F the Criminal Procedure Act above cited in order to make the provisions which seek to safeguard the rights of the accused meaningful.
Again it was alleged that the Trial Magistrate had failed to call essential evidence. This was in relation G to the first appellant John Onenge who in his defence of alibi had claimed that at the time of the commission of the offence he was in police custody apparently in connection with some other offence. In answer to cross-examination he is recorded as saying that he did not know the importance of calling the officer in charge of the police station in question to produce the lock up H register in support of the alibi. Mr Maruma, therefore, submitted that in those circumstances the Trial Court erred in failing to call for the said lock up register which would have provided the necessary evidence to determine whether or not the appellant could have been at the scene of crime on 25 February 1991 as alleged.
I We can find no merit in this complaint. The appellant was seen

and identified at the scene of crime by PW1 and PW3 on 25 February 1991. His co-accused, Julius A Senene, in his cautioned statement to the police (exh P5) stated that the appellant called on him on 25 February 1991. And PW9 testified that he and other members of `Sungu Sungu' arrested the appellant in the dead of the night on 26/27 February 1991 on suspicion when the appellant and B another person tried to run away with some luggage in their possession upon seeing the `Sungu Sungu' following them. Thus there was abundant evidence before the Trial Magistrate showing that on 25 February 1991 the appellant was not at police lock up as he claimed. He was free and he could C have been at the scene of crime on 25 February 1991, the day of commission of the offence. Thus the lock up register was really not necessary for the purpose of determining whether or not the appellant was at the scene at the time of the commission of the offence, and hence the Trial Magistrate was not obliged to call for it. D
Criticism was also leveled against the procedure of tendering exhibits in evidence. The radio which was stolen in the course of committing the offence charged in this case was tendered in evidence as exh P2 by its owner (PW2). Criticising this Mr Maruma submitted that the radio ought to have been E tendered by the police officer who was keeping custody of it. However, we can find no substance in this complaint. PW2 testified that exh P2 was stolen from his home during the commission of the offence charged and the appellant Julius Senene confirmed that exh P2 was the same radio which the police had seized from him. Thus so long as the identify of exh P2 was not in dispute, we could F see no valid reason why its owner could not properly produce it in evidence.
It should be borne in mind that the object of the rule that an exhibit should be produced by the person who had custody of it is to ascertain the identity of the said exhibit as the very one which it is claimed connects the accused with the offence charged. In the instant case both the prosecution and the G defence are agreed that exh P2 the radio stolen during the commission of the offence charged is the very one found in possession of the appellant, thereby implicating him with the offence charged. In such circumstances it is pointless to insist on the production of the radio by the police who had kept H custody of it.
And lastly Mr Maruma criticised the High Court for failing to find that the Trial Magistrate had written the judgment before hearing the defence case. Advancing this complaint particularly in relation to the Isecond appellant Julius Senene, the learned Counsel

A contended that the irregularity meant that the Magistrate did not consider the defence case. This, he want on, necessarily prejudiced the defence thereby vitiating the whole judgment.
There is no doubt that this is a serious allegation, and we must make it plain that if it were founded, it B would have far reaching consequences. However, upon a careful scrutiny of the record, we are of the opinion that the allegation is not substantiated. The judgment of the Trial Magistrate is about four and a half typed pages. The record shows that the Magistrate delivered that judgment on the same day at the same sitting after concluding the defence case and without any adjournment during which C to compose the judgment. Counsel submitted that such a long judgment must have been written before the proceedings were concluded and in particular before the defence was heard. Deferring to an endorsement on the record which shows that the defence case was adjourned to 4 September 1991 for continuation while the judgment is dated 3 September 1991. Mr Maruma stated that this D confirmed his claim that the judgment must have been written before the defence was heard.
As intimated earlier, however, we are not satisfied that this allegation has been substantiated. The second appellant, Julius Senene, was the last to give evidence in which he mentioned one Jambii as E the person who had brought a radio to him, and indeed this was the backbone of his defence. That fact is clearly reflected and duly considered in the judgment of the Trial Magistrate. But a far as we could ascertain, that fact is not reflected in the evidence of any other witness. Then the question is: If the Magistrate had written his judgment before hearing the defence case where did he get this fact F from? We specifically put this question to Mr Maruma but he could give no answer to it.
Mr Maruma had informed us from the bar that according to his instructions, during the morning of the G day the judgment was given the Magistrate had recorded the whole of the defence for the first appellant and the examination-in-chief of the second appellant Julius Senene. He then adjourned the case for cross-examination of the appellant Julius which, according to the record, was a brief H covering only about six lines. After that judgment was delivered very late in the afternoon at about 5 pm. Therefore, it may be that during the long adjournment after the morning session the Magistrate started to compose his judgment basing it on the bulk of the prosecution and the defence evidence already recorded and then rounded it off in Court after the brief cross-examination of the appellant I Julius during the afternoon session.

On the issue that the defence case was adjourned on 4 September 1991 for continuation while the A judgment is dated 3 September 1991, we are satisfied that this was only a mix up by the Magistrate in the recording of dates. The true position is that the judgment was dated and delivered on 4 September 1991 and not 3 September 1991 as the record purports to show. For Mr Maruma B conceded that the defence of the second appellant Julius was recorded on 4 September 1991, the day the judgment was delivered. Yet the endorsement on the record shows that it was recorded on 3 September 1991. It was therefore a slip for the magistrate to endorse that the defence of the appellant Julius was recorded on 3 September 1991 when in fact it was recorded on 4 September C 1991. It was equally a slip that he endorsed on the record that the judgment was dated and delivered on 3 September 1991 when in fact it was dated and delivered on 4 September 1991.
After a careful examination of the record, we are satisfied that the criticisms leveled against the D decision of the High Court are unfounded and the appeal is without merit. The High Court rightly upheld the appellants' convictions and the sentences imposed on them. The appeal, therefore fails and is accordingly dismissed in its entirety. E

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