STEPHANO NDAGIZI AND JAMANNE SAID v REPUBLIC 1994 TLR 62 (CA)

 STEPHANO NDAGIZI AND JAMANNE SAID v REPUBLIC 1994 TLR 62 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Ramadhani JJA, Mnzavas JJA and Lubuva JJA

B CRIMINAL APPEAL NO. 24 OF 1992

13 December, 1993

C (From the judgment of the High Court of Tanzania at Dar es Salaam, Lugakingira,

J)

Flynote

Criminal Practice and Procedure - Charges - Robbery with violence and armed

robbery - Two distinct offences D attracting distinct punishments.

Criminal Practice and Procedure - Cognate offences and substituted conviction -

Armed robbery and robbery with E violence - Whether a conviction for armed

robbery may be substituted for robbery with violence.

-Headnote

The house of one Ramadhani Hassani was broken into and some items stolen

therefrom on account of which the two appellants were convicted by the District

Court of Ilala of the offence of robbery with violence contrary to ss 285 and 286 of

the Penal Code. Their appeal to the High Court of Tanzania F failed. On further

appeal they claimed they did not commit armed robbery so their punishment should

have been fifteen and not thirty years.

Held:

(i) The charge confronting the appellants was robbery with violence

contrary to s 285 of the penal code, not armed robbery contrary to ss 285 and 286;

these are two distinct offences with two distinct punishments

G (ii) Armed robbery, punishable with a minimum sentence of thirty years'

imprisonment, is a more serious offence than robbery with violence, punishable with

a minimum sentence of fifteen years' imprisonment; a conviction for armed robbery

therefore, could not be legally substituted for robbery with violence;

H (iii) For a sentence of thirty years' imprisonment to be imposed, the charge

must be armed robbery.

Case Information

Appeal against conviction dismissed; appeal against sentence allowed.

Cases referred to:

I (1) Leonard Raphael and Another v Republic Court of Appeal, Criminal

Appeal No 4 of 1992 (unreported).

1994 TLR p63

(2) John Joseph Onenge and Another v Republic [1993] TLR 131. A

Sengwaji, for the respondent.

[zJDz]Judgment

Ramadhani, JA, delivered the following considered judgment of the court.

On the night of 14 September 1990 the house of one Ramadhani Hassani (PW1) was

broken into B and some items of property belonging to him were stolen. The two

appellants, Stephano Ndagizi and Jumanne Said, were identified by PW1, his wife,

Zena Saidi (PW2), their tenant, Rajabu Mkwanyu C (PW5) and by their neighbour,

Manoto Sylvester (PW3), to have been the offenders. So the two appellants were

convicted by the District Court of Ilala at Kivukoni of the offence of robbery with

violence contrary to ss 285 and 286 of the Penal Code. The appellants were sentenced

to a term of imprisonment of thirty years each. D

They appealed to the High Court of Tanzania at Dar es Salaam (Lugakingira J) but

they were unsuccessful. This is their second appeal and hence we shall deal with

points of law only.

The appellants appeared in person but the respondent was represented by Mr

Sengwaji, learned E State Attorney. The appellants had only one point of law in

their six grounds of appeal. However, that one point is really crucial though it has not

been properly articulated. In their ground number three, the appellants have

complained against excessive punishment. They have pointed out `thirty years

imprisonment is a corporal punishment (sic) which is imposed for only in the offence

of armed F robbery, not robbery with violence'. Admittedly the language is broken

but the message is clear. They argue that there are two offences: armed robbery and

robbery with violence and that the minimum punishment of thirty years is for the

former, that is armed robbery. They went further to argue that the G word `armed'

has not been defined - probably they mean not defined under the Penal Code.

However, they have pointed out that the definition of that word in the Arms and

Ammunition Ordinance, cap 223 does not include `panga, shoka, rungu, nondo or

knife'. As those were the items it was said they had in their possession on the fateful

night, they argued, they did not commit armed H robbery so their punishment

should have been fifteen and not thirty years.

Mr Sengwaji started by challenging that reasoning. We are satisfied that in this appeal

it is not necessary to determine whether or not a person with any of the items

enumerated by the appellants, I that is

1994 TLR p64

RAMADHANI JA

A `panga, shoka, rungu, nondo or knife', can be properly said to be armed. The real

point of law is not whether the appellants were armed or not. Mr Sengwaji agreed

with the court that the charge which confronted the appellants was robbery with

violence contrary to s 285 of the Penal Code and not armed robbery contrary to ss 285

and 286. These are two distinct offences: the former, that is B robbery with violence,

attracts a minimum punishment of fifteen years while the latter, armed robbery, is

visited with a minimum of thirty years imprisonment. The charge has to be very

categoric on the offence facing an accused person.

C Here the charge was robbery with violence and the appellants were convicted of

that despite the fact that the evidence shows that they carried some weapons. They

were not charged with armed robbery. As armed robbery is more serious than

robbery with violence, though cognate to it, legally there could not be a substituted

conviction. So the conviction is of robbery with violence, punishable D with a

minimum of fifteen years and not thirty years.

We have already decided that for a sentence of thirty years imprisonment to be

imposed, the charge must be armed robbery. This was in Leonard Raphael and

another v R (1) following our earlier decision in John Joseph Onange and another v R

(2).

E Act 10 of 1989 has amended the Minimum Sentences Act 1972 by adding a new

para (bb) to s 5 which reads:

`(bb) Where any person is convicted of armed robbery the Court shall

sentence him to imprisonment for a term of F not less than thirty years.'

Thus, as we have already said above, there is a specific offence of armed robbery.

However, the Second Schedule to the Criminal Procedure Act 1985 giving Forms of

Stating Offences in G Information does prescribe in item 8 the format `Robbery

with violence, contrary to s 285 of the Penal Code, Act 10 of 1989 has not added a

new format of `Armed Robbery, contrary to s 285 and 286'. It is easy to see,

therefore, why those with the duty of framing charges have been repeatedly omitted

to H accused persons specifically with `armed robbery'. We hope that the Director

of Public Prosecutions will take the necessary steps to inform those who act on his

behalf of these decisions and check against this mistake.

The appeal against conviction is dismissed but that against sentence is allowed. The

sentence of thirty years given to the appellants is set aside and in its stead we order

that they serve fifteen years I imprisonment from the date they were sentenced.

1994 TLR p65

A