20100311 TZCA Tanga

I I I' I ! , I IN THE COURT OF ~PPEAL OF TANZ~NIA ATT~NGA I

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II I (CORAM: MUNUO, J.A., MSOFFE, J. A. And KIMARO, J. A.) . . I. . I I CRIMINAL APPE~L NO. 82 OF 200~ f · I ABUBAKARI LAM ECK ...................... ,....................•................. APPELLANT vEdsus I THE REPUBLIC ...................•........... J.......................... .\....... RESPONDENT. (Appeal from the decision of the Rlsident Magistra~'s Court of Tanga atT~nga) \ (Lema, PRM - Extlnded Jurisdiction) I dated the 5 th day of lune, 2008 •. 1 m Criminal AppealjNo. 34 of 2007 ., JUDGM-~~-;-~,-;~~-COURT I 11 & 12 March, 2010 MSOFFE, J.A.: I .. II This appeal arises from the defision of Lema, Pirincipal Resident Magistrate with Extended Jurisdictioh, upholding the\\ District Court of . I II Pangani (Kassonso, DM) in convicti ng the appellant of cattle theft 1 1 I1 . I . contrary to sections 268 and 265 of fhe Penal Code and the sentence of fifteen years imprisonment meted '.on the said appJllant. . • I t I

I I I i.: In brief, PW2 Esther Mfaume owned six goats which she had I I entrusted to PWl Asha Ngongoni fior custody and ~afe keeping. On 1 28/11/2004 at around 11.00 p.m. PW1 was asleeJ when she heard I I the goats screaming. She woke up and went out to the kraal where she observed that the door therel had been brolen into and the goats were missing. As she obsejed further she law the appellant and others leading the goats towar1s the direction if the homestead of PWS Hamza Shabani. She qluickly sought tle assistance of neighbours. In purs~it of the goal PWl and the teighbours, while I on the road and upon reaching tHe appellant and the others, the appellant threatened the search plrty not to intekere with them. I PWl and the neighbours were not scared by the threats. Instead, I I they pursued the appellant and th others up to the compound of I I PWS where the appellant and the others were arrested and I I eventually charged in court. We 1ay observe herf that the other accused persons were also convicte(t by the District\ Court alongside 1 the appellant and their first apJeal to the Principal Resident · Magistrate with extended jurisdictidn was also distissed. In our I 2 research, we have found out that the other accused persons have since then never preferred a second appeal to this Court. The appellant's defence was in effect an alibi. He contended before the District Court,

and repeated before us, that on the material day and time he was asleep at his home~ At around 2.00 a.m. some people invaded his house and woke him up. He was subsequently arrested and charged in connection with this offence. The appellant filed a memorandum of appeal containing nine grounds of appeal. In brief, however, all the grounds centre on one major ground of complaint. That the evidence of identification was lacking in the prosecution case against him. To thjs end, the point being made here by the appellant is that the prosecution case against him was not proved beyond reasonable doubt. At the hearing of the appeal the appellant appeared in person, unrepresented. The respondent Republic had the services of Mr. Tumaini Kweka, learned State Attorney, who submitted in opposition to the appeal. On sentence, however, Mr. Kweka contended that it 3 was illegal and invited us to invoke our revisional jurisdiction and vary it accordingly. As reflected in the memora dum of appeal, and also in the 1 submission of Mr. Kweka, it is also! evident and clElar to us that the determination of the case depended on the drucial aspect of identification. The prosecution else was to fall or rise on this important aspect. In arguing the above point, jr. Kweka carriel:l us through the evidence of the prosecution witnesses and urged us to uphold the decisions of the courts below that lhe

appellant wt duly identified on the date of incident. There is no dispute that the imcident took place at night. It is also not in dispute that the night in• question was Jloonlit. At stake here, therefore, was visual identifi •ation. The crUJcial question is whether or not the available Lnditions favowred a correct identification of the appellant. In anlwering this que~ion we wish to reiterate that the law on the eviderir of visual ide~tification is well settled as per this Court's decision im the celebrated case of Waziri 4 I I Amani v Republic (1980) TLR 25r that this kind ~f evidence is of the weakest kind and the most un~eliable and sho~ld 11 ! . not be acted I I upon unless all possibilities of mis~bken identity are eliminated and I I the court is satisfied that the eridence before it is absolutely I 11 . watertight. i:i I In this case, all the prosecution witnesses were positive that they knew the appellant prior to th~ date of incident They were all residents of Mzambarauni village. The appellant hJiled from Bweni . I village but, according to these witne!ses, he was at that time living in 11 ! the house of PWS. Indeed, even in his testimo~y in Court the 1 appellant did not deny this aspect of the case. I! I 11 : A look at the evidence of the Rrosecution witnesses as a whole shows that there was no possibility or mistaken identi~. In brief, the scenario emerging from

the evidenc, was this:- PW~ woke up after hearing the goats screaming. After moving oud she saw the I ! appellant and the others along the · road leading the goats to the . I house of PWS. Without wasting time she quickly woke up PW2, PW3 I Shabani Ayoub and PW4 Michael 1gongoni. Tog~ther, all these 5 witnesses then pursued the appellant and the others. On the way, the appellant threatened them but they were not Lared. Within a

I I I short period of time on that same ight they arrested the appellant and the others with the goats at tme compound of PWS. PWl and ! PW2 identified the goats there and then mainly ecause of their distinct colours. While all this was! happening the lppellant did not claim ownership of the goats. Surely, with the abbve sequence of events coupled with the two oier undisputed. facts that the 1 witnesses knew the appellant prior ~o that date of incident and also that there was moonlight shining ~II over the plal, there was no . I I possibility of mistaken identity. We 'cannot therefore fault the courts below in their respective findings of fact and the •ejntual conviction of the appellant. As for sentence, we are in agrbement with Mr. Kweka that the sentence of fifteen years imprisonmlnt is illegal. Section 3 of the Minimum Sentences Act (CAP 90 R.E. 2002), herlinafter the Act, defines "cattle" as any of the animals specified in sebtion 268 of the . I . I Penal Code. Goats fall under the definition I of "cattlen by virtue of the provisions of section 268 (3) of the Penal Codi. In terms of 6 l ' I section 5 (b) of the Act where a :person is convi~ted of stealing i I I , I i cattle the court shall sentence him td imprisonment fq:>r a term of not I ' I 1 less than five years. We are aware that under section I 268 (1) of

I I I the Penal Code an offender is liable t, imprisonment for fifteen years. We are also aware that under sectiln 10 (1) of th~ Act, a court is not precluded from imposing, in relition to a scheJuled offence, a sentence of imprisonment for a terml longer than thE1 minimum term of imprisonment. However, in thj justice of this, case, the trial District Magistrate and the Principal Resident ft1agistrate with

I I I i extended jurisdiction did not assign any aggravating ~ircumstances to warrant the sentence of fifteen years imprisonment. i I For the above reasons, w~ dismiss the !appeal against conviction. As for sentence, in exer!ise of our revisi~nal jurisdiction under section 4 (2) of the Appen!te lurisdictiol1 Act (CAP 141 i R.E. 2002) we hereby substitute the ientence of fiftefn years to five years imprisonment from 4/4/2005 when the appella~t was convicted and sentenced by the District Court. 7 ,; In the justice of this case, we are of the view that we should not end up there. We think we hould proceed further and do something about the other accused persons who ar not appealing. In view of the position we have takT on the sentenle meted on the appellant, if we do not act the othir accused perslns will actually continue serving sentence(s) which te consider to bl illegal. In the interests of justice, this should not tie allowed to ,ha~pen. Again, in I I exercise of our revisional jurisdiction under section 4 (2) above, we hereby substitute the sentence(s) of fifteen years mJted on MABULA MARCO, ZAKARIA ENOCK and AMIRI IBRAHIM to onJ(s) of five years I imprisonment from 4/4/2005. I DATED at TANGA this 11th day ! f March, 2010. :I E.N.MU~UO JUSTICE OF !APPEAL - I J. H. MSOFFE JUSTICE OF !APPEAL N. P. KIM~RO JUSTICE OF !APPEAL I certify that this is a true copy bf the original. ! ! ~ t (N. N. CHUSI)

DEPUTY REGIISTRAR ,, II ' 8 I I