Haji Seif v. Republic, Cr app no 66 of 2007 (armed robbery)

IN THE COURT OF APPEAL OF TANZANIA

AT TANGA

(CORAM:   MROSO, J.A, KIMARO, J.A  And  LUANDA  J.A.)

CRIMINAL  APPEAL  NO. 66  OF 2007

HAJI SEIF …………………..………………………………………………… APPELLANT

VERSUS

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

(An appeal from the Decision of the High Court

of Tanzania at Tanga)

(Longway, J.)

dated the 16^th day of September, 2002

in

Criminal Appeal No. 62 of 2001

JUDGEMENT OF THE COURT

30 June, 2008

LUANDA, JA

One HAJI SEIF (hereinafter referred to as the appellant) was charged in the District Court of Handeni along with five others with armed robbery contrary to sections 285 and 286 of the Penal Code.  After the charge was read over and explained to them, the appellant pleaded guilty to the offence.  The rest denied to have committed the offence.  They pleaded not guilty.  The Public Prosecutor then adduced facts of the case in respect of the appellant.  The opening sentence to the facts, which is strongly attacked by the appellant in this appeal, reads as follows, we reproduce:-

FACTS The first accused Haji Saidi is facing a charge of armed robbery C/SS 285 & 286 of the Penal Code.   

Thereafter, the name of Haji Saidi featured prominently in the facts adduced by the Public Prosecutor.  Upon being asked as to the correctness of the facts, the appellant admitted them to be in order.  He was convicted and sentenced to 30 years imprisonment.

Being aggrieved by both the “finding” and sentence, he appealed to the High Court.  In the High Court, the appellant raised eight grounds.  Basically, the appellant argued that the offence to which he readily pleaded guilty is simple robbery and not armed robbery because no fire arms were used.  And a corollary to that is that the proper sentence to have been meted out should have been 15years and not 30 years imprisonment.  The High Court (Longway,J) did not buy his story.  She stated categorically that the grounds raised were devoid of merits.  The offence he was charged with was armed robbery and the sentence imposed was proper.  She dismissed the appeal.   

Still aggrieved, the appellant has come to this Court on second appeal.  In this Court the appellant has raised six grounds of appeal.  Five of these concern the mix up of his name with that of Haji Saidi.  He strongly argued that the two names represent two different persons and that he is not the one who was convicted by the trial court.  The remaining ground is about failure on the part of the prosecution side to conduct an identification parade so as to eliminate any possible error as to his identity.  In addressing the Court, the appellant repeated the story that he is not Haji Saidi.  He said nothing about an identification parade.

Mr. Vincent Tangoh, learned State Attorney who represented the Respondent the Republic, submitted to the following effect.  One, since the appellant had pleaded guilty to the charge, convicted and sentenced, then he is not entitled to appeal to a higher court, save against sentence.  Mr Vincent Tangoh  got inspiration from section 360 (1) of the Criminal Procedure Act, Cap.20.  The section reads:-

360 (1) No appeal shall be allowed in the case of any accused person who has pleaded guilty and has been convicted on such plea by a subordinate court except as to the extent or legality of the sentence.  

Though the Act does not apply in this Court, we are of the settled view that the principle is quite relevant in this case.  We totally associate ourselves with that principle.

The second ground argued by Mr. Vincent Tangoh was that the question of a mix up of his name with that of Haji Saidi was being raised for the first time in this Court.  It was not raised and canvassed before the High Court.  He argued that it was not proper to raise it for the first time in this Court.  He went on to say that despite being raised at this stage, there is no doubt at all that the person, who he is being referred to in the proceeding is no other than the appellant.

We respectively agree with Mr. Vincent Tangoh that generally it is not proper to raise a ground of appeal in a higher court based on facts which were not canvassed in the lower courts.  We wish to add that the function of this Court as is provided under Article 117(3) of the Constitution of the United Republic of Tanzania is to entertain appeals from the High Court of both Tanzania Mainland and Zanzibar and other quasi   Judicial bodies granted the status of the High Court.  Ordinarily, in order for the Court to be clothed with its appellate powers, the matter in dispute should first go through the above mentioned courts.  Since in our case that was not done, this Court lacks jurisdiction to entertain that ground of appeal.  We therefore do not find it proper to entertain that new ground of appeal which was raised for the first time before us.

Assuming for the sake of it that we have jurisdiction; is the appellant’s complaint justifiable?  As correctly pointed out by Mr. Vincent Tangoh, there is no room for mistaken identity; it is the appellant who pleaded guilty to the charge.

        Lastly, Mr. Vincent Tangoh submitted that the sentence meted out is proper.  He cited Ifunde Kisite V R Criminal Appeal No. 47/200 CAT (Unreported)  in which this Court held that where it has been established that the offence of robbery was committed by more than one person, then the proper sentence to be imposed is 30 years imprisonment which is in line with The Minimum Sentences Act, 1972 as amended by Act 6 of 1994. The sentence meted out, he said, is proper.  We agree that the sentence of 30 years imprisonment is proper as the facts show he stole variety of properties including money in conjunction with others.

        Section 5 (b)(ii) of The Minimum Sentences Act as amended by Act No. 6 of 1994 reads:

5(b)(ii) if the offender is armed with any dangerous or offensive weapon or instrument or is in company with one or more 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 shall be sentenced to imprisonment for a term of not less than thirty years.

In Mwita Sibora V. Republic Criminal appeal No. 49 of 1996 CAT (unreported) this Court said, we quote:-

“As can been seen the sentence of 30 years is no longer confined to armed robbery, but applies to all robberies in which the offender is armed with a dangerous weapon or instrument, is in accompany with one or more persons, or where in the course of committing the robbery, the offender wounds, beats, strikes or uses any other personal violence to any person.”

The sentence imposed was in line with the above quoted section and the previous opinion of this Court supra.  The sentence was proper.

        In the upshot, the appeal is devoid of merits.  We dismiss it in its entirely.

DATED at TANGA this 4^th day of July 2008.

J.A MROSO

JUSTICE OF APPEAL

N.P. KIMARO

JUSTICE OF APPEAL

B.M. LUANDA

JUSTICE OF APPEAL

I certify that this is a true copy of the original

(W.E. LEMA)

DEPUTY REGISTRAR

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