IN THE COURT OF APPEAL OF
AT
DAR ES SALAAM
(CORAM: MROSO, J.A., NSEKELA, J.A. And MBAROUK,
J.A.
CRIMINAL
APPEAL NO. 69 OF 2004
WILLIAM R. GERISON
…………………………..…….. APPELLANT
VERSUS
THE REPUBLIC ……….……………….....………...…
RESPONDENT
(Appeal
from the Judgment of the High Court of Tanzania
at
Mtwara)
(Lukelelwa,
J.)
dated
the 2nd day of April, 2004
in
Criminal
Appeal No. 42 of 2003
-----------
JUDGMENT
OF THE COURT
10 December 2007
& 30 January 2008
NSEKELA,
J.A.:
This is a
second appeal from conviction and sentence for robbery with violence contrary
to sections 285 and 286 of the Penal Code, Cap. 16 RE 2002. The District Court sentenced the appellant to
fifteen years imprisonment. On first
appeal to the High Court, (Lukelelwa, J.) the appellate court upheld both
conviction and sentence. We shall revert
to the issue of sentence later.
The facts
of the case may be stated as follows: On
the 19.7.2003, the complainant (PW1) Alphan Simba, was returning home riding a
bicycle. On the way, he encountered the
appellant, William R. Gerison and another person called Beatus.
The appellant and his colleague roughed up PW1 with a sword, took his
bicycle and other properties he was carrying and disappeared with them. PW1 reported the incident at Ndanda Police
post. The next day on the 20.7.2003
while at Michenga Village PW1 and PW2, Hassani Athmani saw the appellant and
Beatus with the bicycle. They pursued
them and managed to arrest the appellant and retrieved the bicycle. Beatus escaped. On the basis of these facts, the appellant
was convicted and sentenced accordingly by the courts below, hence this appeal.
The
appellant filed a six-point memorandum of appeal. The essence of the grounds of appeal were (i)
that PW1 was not the owner of the bicycle and (ii) that the appellant was not
arrested at the scene of the crime. At
the hearing of the appeal, the appellant appeared in person and
unrepresented. He did not have much to add
to elaborate on the grounds of appeal.
His main line of defence was that PW1 did not adduce any evidence of
ownership of the bicycle such as a receipt that he owned the bicycle in
question or the frame number of the bicycle apart from mentioning the brand
name of “Phoenix
The only
issue before the District Court and the High Court on appeal, was whether or
not on the evidence the appellant was the person who committed the offence he
was charged with. The District Court
found so and this finding was upheld by the High Court. The question is, was the appellant
positively identified as the culprit who robbed the appellant of his property
including the bicycle? There is evidence
to the effect that on the 20.7.2003, PW1 and PW2 saw the appellant and one
Beatus riding a bicycle. They pursued
them and managed to arrest the appellant only.
They retrieved the bicycle which PW1 had been robbed the previous
day. While it is true that PW1 was
unable to adduce evidence to establish ownership of the bicycle, this does not
render any assistance to the appellant.
In our view, PW1 was a “special
owner” of the bicycle in terms of section 258 (2) (a) of the Penal
Code. Admittedly, we agree that the
identification of the bicycle was far from satisfactory. The onus was on the prosecution to prove
beyond reasonable doubt that the appellant came into possession of the bicycle
in a manner which constitutes robbery in law.
There was evidence of PW1 coupled with that of PW2 which implicated the
appellant with the robbery.
As stated
before, this is a second appeal. On a
second appeal, an appeal lies to this Court only on a point of law or points of
law in terms of section 6 (7) (a) of the Appellate Jurisdiction Act, Cap. 141
RE 2002. It is settled law that very
rarely does a higher appellate court interfere with concurrent findings of fact
by the courts below. This Court, in the
case of Director of Public Prosecutions v Jaffari Mfaume Kawawa (1981) TLR 149
stated as follows at page 153 –
“The next important point for consideration and decision
in this case is whether it is proper for this Court to evaluate the evidence
afresh and come to its own conclusions on matters of facts. This is a second appeal brought under the
provisions of s. 5 (7) of the Appellate Jurisdiction Act, 1979. The appeal therefore was to this Court only
on a point or points of law. Obviously
this position applies only where there are no misdirections or non-directions
on the evidence by the first appellate court.
In cases where there are misdirections or non-directions on the evidence
a court is entitled to look at the relevant evidence and make its own findings
of fact.”
As stated
before no sufficient reason has been advanced why we should fault the
concurrent findings of the courts below in this case.
We now come
to the question of the sentence imposed upon the appellant. In sustaining the fifteen years term of
imprisonment meted out to the appellant, the learned judge stated as follows –
“The appellant used a sword, to threaten PW1 in order to
steal the bicycle. A sword is a
dangerous weapon. In fact the appellant
had committed the offence of armed robbery which attracts a sentence of thirty
years imprisonment. However the
appellant was charged with the lesser offence of robbery with violence, and the
particulars thereof alleged that he used personal violence against his victim. I think it is not proper to substitute a
conviction and sentence to a grave offence even if the offences are
cognate. This is notwithstanding the
powers of this court under the provisions of section 366 (1) of the Criminal
Procedure Act, 1985.”
We have the
following observations to make. The offence
of armed robbery was enacted under the Written Laws (Miscellaneous Amendment)
Act No. 4 of 2004 published on the 14.4.2004.
It is now section 287A of the Penal Code. The appellant committed the offence on the
19.7.2003 before Act No. 4 of 2004 came into being. However, the Written Laws (Miscellaneous
Amendments) Act No. 6 of 1994 was then in force since the 18.3.1994. Now section 5 (b) of the Minimum Sentences
Act, 1972 as amended by Act No. 10 of 1989 and Act No. 6 of 1994 provides as
follows –
“(b) Subject to sub-paragraph (ii) of this paragraph –
(i)
any person who is convicted of robbery shall
be sentenced to imprisonment for a term of not less than fifteen years;
(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.”
Act No. 6 of 1994 came into effect on
the 18.3.1994. the appellant committed
the offence on 19.7.2003 when Act No. 6 of 1994 was operational. On the evidence, the learned judge on first
appeal found that the appellant had used a sword which is a dangerous
weapon. Under the circumstances, the
appropriate sentence was thirty years imprisonment.
In the result, we dismiss the appeal
against conviction, but set aside the sentence of fifteen years imprisonment
and we substitute therefor the statutory minimum of thirty years imprisonment.
DATED at
DAR ES SALAAM this 22nd day of January, 2008.
J. A. MROSO
JUSTICE
OF APPEAL
H. R. NSEKELA
JUSTICE
OF APPEAL
M. S. MBAROUK
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(F. L. K. WAMBALI)
SENIOR
DEPUTY REGISTRAR
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