Mwita Magore v Republic 1983 Tlr 173 (Hc)

MWITA MAGORE v REPUBLIC 1983 TLR 173 (HC)

Court High Court of Tanzania - Mwanza

Judge Munyera, J

October 28, 1983

CRIMINAL APPEAL 139 OF 1983

Flynote

Criminal Practice and Procedure - Charge of robbery c/s 285 of Penal Code, Cap 16 - Whether causing grievous harm is cognate minor offence to robbery, and can therefore be substituted for robbery.

Criminal Law - Meaning of minor cognate offence - One that forms part of a series of lesser offences necessary to complete major offence.

-Headnote

The appellant was charged with robbery following an allegation that he assaulted one Joseph Nchagwa (PW) with a panga and made away with shs. 12,000/= and an ignition key found in the complainant's pockets. The learned trial magistrate found that the violence perpetrated upon the complainant was not for the purpose of stealing, and acquitted the appellant of robbery and convicted him of causing grievous harm c/s 225 of the Penal Code, Cap. 16. The question before the appeal was whether conviction of causing grievous harm could be substituted for robbery.

Held: 

(i) Conviction of causing grievous harm cannot be substituted for robbery for the simple reason that causing grievous harm is not a cognate minor offence to robbery;

(ii) a cognate minor offence is the one that forms part of a series of lesser offences which must be committed in order to complete the major one. Thus in order to commit robbery one must commit two minor offences, assault and stealing;

(iii) when a person is tried for robbery, assault and stealing are necessarily the subject of the trial and it shall not be unlawful to substitute conviction of either of them for robbery;

(iv) causing grievous harm is not a cognate minor offence to robbery and must be specifically charged, to substitute grievous harm for robbery is bad in law.

Case Information

Order accordingly.

No case referred to.

[zJDz]Judgment

Munyera, J.: The appellant was the second accused before Tarime District Court. He was charged jointly with another (1st accused) for robbery. It was stated that on 27/10/82 the complainant, one Joseph Nchagwa (PW1); was returning to his village Kwitinyo, from a cattle auction. He was driving his Toyota Pick -up MZF 124. He passed by his shamba. He saw a herd of cattle grazing in the shamba. He parked his vehicle somewhere. He approached the herdsmen who happened to be the appellant and his co-accused. He protested to them that their cattle were destroying his crops.

The two men, armed with pangas, rushed at him. The first accused, with the aid of the appellant cut the complainant with a panga on his back. The latter fell down.

The appellant put his hand in the complainant's pockets and made away with Shs. 12,000/= cash and the ignition key. A passer-by, Mchuma Mwita (PW 3) helped the injured complainant. Finally the appellant (and his co-accused) was arrested and charged. In his D defence he (like his co-accused) denied that he assaulted and robbed the complainant. The learned trial magistrate found that the violence perpetrated on the complainant was not for the purpose of stealing. He acquitted both of them of robbery but convicted them of causing grievous harm c/s 225. He sentenced the appellant to 2 years' imprisonment, E and released his co-accused on a 3 year probation. Both of them were ordered to pay compensation of Shs. 500/= each to the complainant. Hence this appeal.

There was ample evidence to establish that it was the appellant (and his co-accused) who injured the complainant. The question is whether conviction of causing grievous harm could be substituted for robbery. Without beating about the bush would say such a substitution is not possible for the simple reason that causing grievous harm is not a cognate minor offence to robbery. A cognate minor offence is the one that forms part of a series of lesser offences which must be committed in order to complete the major one. Thus in order to commit robbery one must commit two minor offences, assault and stealing. So when a person is tried for robbery assault and stealing are necessarily the subject of the trial and it shall not be unlawful to substitute conviction of either of them H for robbery. But one does not have to cause grievous harm in order to commit robbery. It is not a cognate minor offence to robbery and must be specifically charged. In this case it was not included in the charge and was not the subject of the trial. The appellant was unaware of it and its substitution was bad in law. I set aside the conviction of I grievous harm and substitute therefore the one of assault c/s 240. I set aside the sentence of 2 years and substitute therefore the one of 9 months' imprisonment.

The appeal against sentence succeeds to the above extent.

Order accordingly.

1983 TLR p175

C