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R v Chota (Criminal Appeal No. 68 of 2001) [2006] TZCA 68 (27 June 2006)

.RTF of original document

IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM

(CORAM:  LUBUVA, J.A., MROSO, J.A., And MSOFFE, J.A.)

CRIMINAL APPEAL NO. 68 OF 2001

HAMADI KASSIMU CHOTA …………………………………. APPELLANT
VERSUS
THE REPUBLIC ……………………………………………… RESPONDENT

(Appeal from the decision of the High Court
of Tanzania at Dar es Salaam)

(Bubeshi, J.)
dated the 4th day of October, 2000
in
HC. Criminal Appeal No. 16 of 2000
-------------
JUDGMENT OF THE COURT

20 June & 3 July 2006


MSOFFE, J.A.:
         The appellant, Hamadi Kassimu Chota, was charged in the Resident Magistrate’s Court of Dar-es-Salaam at Kisutu with armed robbery contrary to sections 285 and 286 of the Penal Code. He was convicted and sentenced to a term of imprisonment for fifteen years. On appeal to the High Court of Tanzania at Dar-es-Salaam the conviction was upheld and the sentence substituted with thirty years imprisonment in line with S. 5 of the Minimum Sentences Act, 1972 as amended by the Written Laws (Miscellaneous Amendments) Act No. 10 of 1989. He was dissatisfied, hence this second appeal.
         The facts giving rise to the case as established at the trial are simple. PW3 Mahedi Kanji, living along Aggrey Street in Dar-es-Salaam, owns a shop called Service Limited. On 8/1/1995 at 10.15 p.m. he went to Uhuru/Msimbazi Street to pick his secretary, Edna Bottele (PW1) with a view to going to the Dar-es-Salaam International Airport where they were to meet a visitor from India. He parked his car at the corner of Msimbazi/Uhuru streets so that he could walk to the nearby Rupia Building where the secretary lived. He walked about five paces away where he was attacked by a group of six people. The group stole his cash Shs.1200/=, eye glasses and a pistol. In the process, a person from among the group wounded PW3 with a knife. Eventually the group released him, after which he went to the house of PW1. The latter stated that she watched the incident from the balcony of the first floor to the building but did not know that the victim was PW3, her boss. PW1 and PW3 reported the incident to the police.
In the meantime, on 21/2/1995 PW2 Constable Stanslaus and other policemen were on patrol duty along Chang’ombe area. At around 10.00 a.m. they received information that a saloon car with registration No. ITB 032 was suspected of carrying robbers. They chased the car to Buguruni and then to Vingunguti area where it overturned. Some of the suspected robbers jumped out of it and escaped leaving behind the driver who happened to be the appellant. On searching the car they saw a pistol (with eight rounds of ammunition) in a pocket attached to the driver’s seat. On further searching they saw two more rounds of ammunition under a carpet.
         On 26/2/1995 PW3 was summoned to the police station at Buruguni. He was shown the pistol and he identified it to be his property stolen on the above mentioned date. An identification parade was also conducted on the same date and PW3 identified the appellant.
         In this appeal the appellant who was unrepresented raises one general complaint. That the case against him was not established beyond reasonable doubt. In his memorandum of appeal filed on 10/6/2001 and the supplementary memorandum of appeal lodged on 16/2/2006, he is essentially saying that the evidence of the prosecution witnesses did not prove the case against him. In particular, he is of the view that it was highly unlikely that PW3 identified him on the fateful day because the incident took place during the night under unfavourable conditions.
         On his part Mr. John Mapinduzi, learned State Attorney for the respondent Republic, was of the firm view that the case against the appellant was proved beyond doubt. In particular, he maintained that the appellant was identified on the fateful night because there was electricity light. Also that on the date of incident the appellant held PW3 from the front position thereby making it easier for the latter to identify him. Furthermore, according to Mr. Mapinduzi, the incidents of 21/2/1995 and 26/2/1995 were clear testimony to the fact that the appellant was involved in the commission of the offence in question.
         The crucial issue for the determination of this appeal is the identification of the appellant. The appellant claims that he was not properly identified. This, we cannot accept. As correctly submitted by Mr. Mapinduzi, the place of incident had electricity light illuminating the area from a nearby verandah. The appellant held PW3 from the front side thereby making it easier for the said complainant to identify him. The complainant’s pistol was retrieved from a car driven by the appellant on 21/2/1995. On 26/2/1995 PW3 identified the appellant in an identification parade. On the same date PW3 also identified his pistol. It will be recalled that the pistol was one of the items seized from PW3 on the day of incident when PW3 was attacked. Surely, in the midst of all this evidence the appellant’s conviction was well founded. Hence there will be nothing to fault the courts below in their concurrent findings of fact on the point.
         At the hearing of the appeal the Court invited Mr. Mapinduzi to address the issue pertaining to the trial magistrate’s failure to conduct a preliminary hearing under S. 192 of the Criminal Procedure Act, 1985 (hereinafter referred to as the Act). Mr. Mapinduzi took the view that the failure did not prejudice the appellant and did not vitiate the proceedings.
         With respect, we agree with Mr. Mapinduzi. In the case of Mkombozi Rashidi Nassoro v Republic, Criminal Appeal No. 59/2003 (unreported) this Court restated the historical perspective of the Act, and the effect of the failure to conduct a preliminary hearing under S. 192 of the Act. For purposes of this case, we do not have to repeat all that was stated in Mkombozi. It will suffice to say, briefly, that as this Court stated in Francis Lutambi v R, Criminal Appeal No. 30/1996 (unreported), which was also cited in Mkombozi, the intention of the legislature in enacting S. 192 of the Act is to reduce costs and to accelerate and speed up trials in criminal cases. Applying the principle in Lutambi to the present case, we are of the view that nothing has been shown that the failure to conduct a preliminary hearing under section 192 either caused delay in the trial or added to the costs of the trial and that the appellant was prejudiced in any way. Therefore, the proceedings which were conducted without conducting a preliminary hearing under S. 192 were not vitiated.
         In the event, we are satisfied that the appellant was properly convicted. We find no merit in the appeal. It is accordingly dismissed in its entirety.

         DATED at DAR ES SALAAM this 27th day of June, 2006.

D.Z. LUBUVA
JUSTICE OF APPEAL

J.A. MROSO
JUSTICE OF APPEAL

J.H. MSOFFE
JUSTICE OF APPEAL

         I certify that this is a true copy of the original.





( S.A.N. WAMBURA )
SENIOR DEPUTY REGISTRAR

IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM

CRIMINAL APPEAL NO. 68 OF 2001

HAMADI KASSIMU CHOTA …………………………………. APPELLANT
VERSUS
THE REPUBLIC ……………………………………………… RESPONDENT

(Appeal from the decision of the High Court
of Tanzania at Dar es Salaam)

(Bubeshi, J.)
dated the 4th day of October, 2000
in
HC. Criminal Appeal No. 16 of 2000
Between
The Republic ……………………………………………………. Prosecutor
Versus
Hamadi Kassimu Chota ………………………………………….. Accused
---------------
In Court this 27th day of June, 2006

 Before: The Honourable Mr. Justice D.Z. Lubuva, Justice of Appeal
         The Honourable Mr. Justice J.A. Mroso, Justice of Appeal
 And     The Honourable Mr. Justice J.H. Msoffe, Justice of Appeal
--------
         THIS APPEAL coming for hearing on 20th day of June, 2006 in the presence of the appellant AND UPON HEARING the appellant in person and Mr. J. Mapinduzi, State Attorney for Respondent/Republic when it was ordered that the appeal do stand for judgment;

          AND UPON the same coming for judgment this day:-

         IT IS ORDERED that the appeal be and is hereby dismissed in its entirety.

         GIVEN under my hand and the Seal of the Court this 27th day of June, 2006.


( S.A.N. WAMBURA )
SENIOR DEPUTY REGISTRAR
Extracted on 27th June, 2006.

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