MWITA MAGORE v REPUBLIC 1984 TLR 279 (HC)

MWITA MAGORE v REPUBLIC 1984 TLR 279 (HC)

Court High Court of Tanzania - Mwanza

Judge Munyera J

October 28, 1983

CRIMINAL APPEAL 139 OF 1983

Flynote

B Criminal Practice and Procedure - Cognate offences - Whether causing grievous

harm can be substituted for robbery.

-Headnote

The appellant was charged with robbery. The trial magistrate found that the offence

of robbery was not C established. He was, however, satisfied that the appellant

caused grievous bodily harm to the complainant and convicted him accordingly. On

appeal the learned judge considered whether or not it was proper to substitute a

conviction of causing grievous harm for that of robbery.

D Held: (i) A conviction of causing grievous harm cannot be substituted for that of

robbery, it not being a cognate minor offence to robbery;

(ii) a cognate minor offence is one that forms part of a series of lesser offences

which must be E committed in order to complete the major one;

(iii) two minor offences to robbery are assault and stealing.

Case Information

Order accordingly.

F 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 G Nchagwa (PW 1), 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. H He protested to them that their cattle were

destroying his crops. The two men, armed with pangas, rushed to 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 I Shs.12,000/= cash and the ignation key. A passery-by, Mchuma

Mwita (PW 3) helped the injured complainant. Finally the appellant (and his co-

1984 TLR p280

accused) was arrested and charged. In his defence he (like his co- accused) denied

that he assaulted and A robbed the complainant. The learned trial magistrate found

that the violence visited upon 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, and released his B coaccused

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 C robbery. Without beating about the bush I would

say such a substitution is not possible for 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. D 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 for robbery. But one doesn't have to cause

grievous E 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 grievous harm and F

substitute hereof the one of assault c/s 240. I set aside the sentence of 2 years and

substitute thereof the one of 9 months' imprisonment.

Order accordingly. G

1984 TLR p280