MICHAEL JOSEPH v REPUBLIC 1995 TLR 278 (CA)

 

MICHAEL JOSEPH v REPUBLIC 1995 TLR 278 (CA)

Court Court of Appeal - Dar Es Salaam

Judge Kisanga JJA, Mfalila JJA and Lubuva JJA

Criminal Appeal 199 of 1994 F

November 28, 1995

(From the judgment of the High Court of Tanzania at Dar es Salaam, Bahati, J)

Flynote

G Criminal Law - Armed robbery - What constitutes armed robbery.

Criminal Practice and Procedure - Charges - Charge of robbery with violence - In the

commission of the offence an arm is used - Whether offence committed is one of

armed robbery.

-Headnote

H The appellant was charged with robbery with violence. Evidence led showed that

during the commission of the offence the appellant used a knife. The trial court

convicted and sentenced him to thirty years imprisonment and five strokes of the

cane. On appeal to the High Court the main issue raised was that the sentence

imposed was not proper in law because the offence did not amount to armed robbery.

The appeal was dismissed. On further appeal to the Court of Appeal of Tanzania. I

1995 TLR p279

LUBUVA JA

Held: A

(i) Though there is no express and specific definition of what constitutes

'armed robbery' it is clear that if a dangerous or offensive weapon or instrument is

used in the course of a robbery such constitutes 'armed robbery' in terms of the law as

amended by Act No 10 of 1989.

(ii) Weapons are not confined to firearms only, other types of weapons

such as knives are also included; B

(iii) The offence involving the appellant was armed robbery.

Case Infomation

Appeal dismissed

No case referred to.

Mwengela for the respondent. C

[zJDz]Judgment

Lubuva, JA: delivered the following considered judgment of the court:

The District Court of Ilala District at Kivukoni convicted the appellant of the offence

D of robbery with violence contrary to ss 285 and 286 of the Penal Code. He was

sentenced to a term of imprisonment for thirty years. The appellant was further

ordered to suffer five strokes of the cane. On appeal to the High Court (Bahati, J) the

main issue raised was that the sentence imposed was not proper in law. He E

contended that the trial magistrate erred in sentencing him to thirty years

imprisonment because a mere knife was used in the commission of the offence in

which case it was not armed robbery. In that situation, the appellant insisted, in terms

of the provisions of Act No 10 of 1989, he should have been sentenced to fifteen years

imprisonment for the offence of ordinary robbery. Dismissing the F appeal, the

learned judge held that the offence was armed robbery because the knife used in the

commission of the offence was a dangerous and offensive weapon. Still dissatisfied,

this second appeal has thus been lodged. Again it is against sentence only. G

Complaining against the sentence, the appellant has filed four grounds of appeal. In

addition to these grounds, at the hearing of this appeal the appellant submitted a

handwritten memorandum which he claimed contained additional grounds of appeal.

From these grounds, it is our view that in essence two points are raised in H this

appeal. First, that the sentence imposed was not proper as the offence involved was

not armed robbery. Secondly, that as the appellant was sixteen years of age at the

time, he should not have been sentenced to thirty years imprisonment and five

strokes of the cane.

For the respondent, Republic, Mr Mwengela, learned State Attorney, appeared before

us. In regard to the appellant's claim that I

1995 TLR p280

LUBUVA JA

A he was sixteen years of age at the time of the trial before the District Court, he

submitted that, that was not true. Referring to page 6 of the proceedings at the trial,

Mr Mwengela pointed out that the record quite clearly shows that the appellant in

his sworn defence statement declared he was twenty years of age. It B is

inconceivable, Mr Mwengela stressed, that the appellant stated his age to be twenty

years if, as a matter of fact he knew it was not so. Furthermore, Mr Mwengela

contended, at the hearing of the appeal before the High Court the issue that the

appellant was sixteen years of age was not raised. It was Mr Mwengela's submission

that there was no basis for the appellant's claim that he should have been treated as a

juvenile.

C We accept Mr Mwengela's submission that this ground is without merit. From

record, the issue that the appellant was sixteen years old was neither before the trial

Court nor the High Court on first appeal. As already pointed out by Mr D

Mwengela, learned State Attorney, the facts as accepted by the two courts below do

not bear him out on this. The appellant in clear and unambiguous terms stated in is

defence at the trial that he was at the time twenty years old. What is more, on appeal

to the High court, the age of the appellant was not raised at all. All that the E

appellant complained on appeal at the High Court was in regard to the sentence of

thirty years imprisonment. In such circumstances, we think it is not only too late in

the day but that the appellant cannot be entertained in this in this court to raise an

issue which was not before the two courts below. Furthermore, it is an issue F

which, according to the record, the appellant clearly admitted that he was twenty

years old. With respect, we are satisfied that it is a futile exercise for the appellant to

seek to fault the learned judge on first appeal regarding the sentence imposed on the

ground of his age.

G We revert to the ground that the sentence of thirty years imprisonment was

improper. In his submission on this point, Mr Mwengela submitted that under Act No

10 of 1989 read together with s 286 of the Penal Code, once it is proved that a

dangerous or offensive weapon or instrument was used in the commission of the

robbery, such would be armed robbery. In the instant case, Mr Mwengela urged, H

as a knife was used which is a dangerous or offensive weapon the offence involved

was armed robbery for which the sentence imposed was proper.

On this ground, the only issue is whether the circumstances of the case, the offence

involved was armed robbery. It is common knowledge that the object behind the

enactment of the Written Laws (Miscellaneous Amendments) Act No 10 of 1989

which amends I

1995 TLR p281

LUBUVA JA

the Minimum Sentence Act 1972, was inter alia, to raise the penalties for offences A

of robbery with violence or attempt to commit such offences and the sue of arms or

dangerous or offensive weapons. Otherwise, the basic definition of robbery still

remains as provided for under the Penal Code. Under s 286 of the Penal Code which

prescribes the penalties for robbery the circumstances under B which if robbery

takes place, a sentence of life imprisonment with or without corporal punishment

could be imposed are set out. In that section, in part, it is provided '... If the offender

is armed with any dangerous or offensive weapon or instrument ...' (Emphasis

supplied.) From this, and as correctly held by the C learned judge, though there is no

express and specific definition of what constitutes 'armed robbery' it is clear to us that

if a dangerous or offensive weapon or instrument is used in the course of a robbery,

such constitutes 'armed robbery' in terms of the law as amended by Act No 10 of

1989. In this context, the weapons are, in our view, not confined to firearms only,

other types of weapons such as D knives are also included.

In the instant case, the weapon used was a knife which as already indicated is a

dangerous or offensive weapon. With respect, we are in agreement with the learned

judge that the offence involving the appellant was armed robbery. We are E

therefore satisfied that the sentence of thirty years imprisonment and five strokes of

the cane on the appellant was properly founded in law. The appellant's complaint

against the propriety of the sentence is untenable.

In the event, we dismiss the appeal in its entirety. F

1994

Editorial Board

Chairman

The Hon. Mr. Justice F.L. NYALALI, Chief Justice of Tanzania

Secretary & Managing Editor

Dr. J.T. MWAIKUSA, Senior Lecturer, Faculty of Law,

University of Dar es Salaam

Members

The Hon. Mr. Justice B.A. SAMATTA, Justice of Appeal,

Tanzania Court of Appeal

The Hon. Mr. Justice H.M. HAMID,

Chief Justice of Zanzibar

The Hon. Mr. Justice H.A. MSUMI,

Principle Judge (J.K.) of the High Court of Tanzania

Mr. SHAIDI, Principal State Attorney

Attorney General's Chambers, Dar es Salaam

Mr. A.M. MISKIRY, Senior State Attorney,

Attorney General's Chambers, Zanzibar

Ms. K. ORIYO, Chief Corporation Counsel,

Tanzania Legal Corporation

Mr. S.J. JADEJA, Advocate of the High Court of Tanzania

Mr. B. LUANDA, Registrar, Court of Appeal of Tanzania

Ms. M. SHANGALI, Court of Appeal, Administrative Assistant

Dr. P.J. KABUDI (Assistant Editor),

Senior Lecturer, Faculty of Law, University of Dar es Salaam

SCOPE OF THE SERIES

These Reports cover cases decided in the Court of Appeal of Tanzania and the High

Courts of Tanzania and Zanzibar

CITATION

These Reports are cited thus [1994] T.L.R.

Judges of the Court of Appeal of Tanzania in 1994

1. The Hon. Mr. Justice F.L. Nyalali Chief Justice

2. The Hon. Mr. Justice L.M. Makame Justice of Appeal

3. The Hon. Mr. Justice R.H. Kisanga Justice of Appeal

4. The Hon. Mr. Justice A.M.A. Omar Justice of Appeal

5. The Hon. Mr. Justice A.S.L. Ramadhani Justice of Appeal

6. The Hon. Mr. Justice N.S. Mnzavas Justice of Appeal

7. The Hon. Mr. Justice L.M. Mfalila Justice of Appeal

8. The Hon. Mr. Justice D.Z. Lubuva Justice of Appeal

Judges of the High Court of Tanzania in 1994

1. The Hon. Mr. Justice B.A. Samatta Principal Judge (J.K.)

2. The Hon. Mr. Justice D.P. Mapigano Puisne Judge

3. The Hon. Mr. Justice K.S.K. Lugakingira Puisne Judge

4. The Hon. Mr. Justice E.W. Katiti Puisne Judge

5. The Hon. Mr. Justice B.D. Chipeta Puisne Judge

6. The Hon. Mr. Justice N.M. Mushi Puisne Judge

7. The Hon. Mr. Justice W. Maina Puisne Judge

8. The Hon. Mr. Justice J.A. Mroso Puisne Judge

9. The Hon. Mr. Justice L.J.R. Chua Puisne Judge

10. The Hon. Mr. Justice R.A. Mwaikasu Puisne Judge

11. The Hon. Mr. Justice A. Bahati Puisne Judge

12. The Hon. Mr. Justice H.A. Msumi Puisne Judge

13. The Hon. Mr. Justice J.L. Mwalusanya Puisne Judge

14. The Hon. Mr. Justice E.E. Kazimoto Puisne Judge

15. The Hon. Mr. Justice E.P. Moshi Puisne Judge

16. The Hon. Mr. Justice L.A. Kyando Puisne Judge

17. The Hon. Mr. Justice W.H. Sekule Puisne Judge

18. The Hon. Madam Justice E.N. Munuo Puisne Judge

19. The Hon. Mr. Justice J. Masanche Puisne Judge

20. The Hon. Mr. Justice J.B. Mchome Puisne Judge

21. The Hon. Mr. Justice M.D. Nchalla Puisne Judge

22. The Hon. Mr. Justice J.M. Mackanja Puisne Judge

23. The Hon. Mr. Justice T.L. Mkude Puisne Judge

24. The Hon. Mr. Justice J.J. Mkwawa Puisne Judge

25. The Hon. Mr. Justice E.K. Mwipopo Puisne Judge

26. The Hon. Mr. Justice E.N. Rutakangwa Puisne Judge

27. The Hon. Mr. Justice J.H. Msoffe Puisne Judge

28. The Hon. Mr. Justice A.C. Mrema Puisne Judge

29. The Hon. Madam Justice A. Bubeshi Puisne Judge

30. The Hon. Mr. Justice S.N. Kaji Puisne Judge

Judges of the High Court of Zanzibar in 1994

1. The Hon. Mr. Justice Hamid M. Hamid Chief Justice

2. The Hon. Mr. Justice Dahoma Puisne Judge

Cases Reported

1994 TLR p1