20101001 TZCA Mtwara2 1

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IN THE COURT OF APPEAL OF TANZANIA

ATMTWARA I I I- (CORAM: MBAROUK, J.A, BWANA, J.A AND MASSATI, J.A.) I CRIMINAL APPEAL NO. 15 OF 2006 1. AZIZI MOHAMED I LI ... APPELLANTS 2. HAMZA MOHAMED MADAI @ MUNJAj

VERSUS THE REPUBLIC ..................... l....•............. ,., 1 ,,,. RESPONDENT : I {Appeal from the conviction an Sentence of the High Court of Tanzania I , at Mtwara) I (Lukelelwa, J.) j ! nd Dated the 22 day of December) 2005 Jin Criminal Appeals Nos. 78 - 79 o~ 2005 --·-1·------ I JUDGMENT OF THE COUR"fi 28 SEPTEMBER & 4 OCTOBER, 2010 MASSATI, l.A.: The appellants were charged with different offences including I , Armed Robbery contrary to secti~ns 285 and 28~ of the Penal 1 Code (Cap 16 - RE 2002). l7he District cou I of Mtwara which tried them convicted them with 'the aforementiJned offence, and sentenced them to 30 years im I risonment and 12 strokes of the cane. They unsuccessfully appea ed to the High Court Mtwara, and now they have come before us. The facts as found by the lower I courts are that, on 4/3/2002, 1; Rashid Abdallah (PW1) had hireq a lorry owned by Alhaj Makungu 1: i: (PW2) to transport his kerosen• e which he hald purchased from 1, 1' Mozambique, a neighbouring cduntry. They started off at 12.00 midnight. Somewhere in betw~n, before reaJing Mtwara, they were ambushed by a group of _thugs. ,, PW1 and his company were roughed up. PW3, the lorry's driver was threa ened with a pistol wielded by one of the thugs in pjlice uniform beflre being forced to part with the vehicle switch and thrown off it ahd i_: hit by a blunt 1 I I object on the head and injured thereby. The vittims were tied up I, I and left by the road side, while the thugs vaniJhed with the lorry

I I I together with the consignment. I PW1 and othJr victims liberated 2 themselves and walked to MtwarJ where they reached in the early I , ' . I ' hours of the next morning. Soon after, PWl mounted a hunt. The search team went to Kiwalala village where somJ tins of kerosene ·• I were found under a mango tree n~r a certain houJe. The appellants were found in:: a neighbourin I house. By their r I conduct, the appellants got themsblves arrested and handed over to . :' 1 , I the police, where they were chargfd as shown above. The trial court and the first appellate court rejet_:ted the appellants' defences that . I I they were arrested on 6/3/2004 aJ they were coming from Masasi to Mtwara. In this appeal the appellants jppeared in pers, n and fended for themselves. Although they file1i separate m~m,branda of appeal, their grounds rotate around the sa,'me points, that is to say: I I i. That the trial court erre~ in point of law when it recorded I i the evidence of the witn,sses contrary to section 210 (3) of the Criminal Procedure Act (Cap 20 - R.E 2002) I I 1. ii. The prosecution case dip not prove b .yond reasonable I i: doubt the quantity and valµe of the alleged kerosene. iii. That the two courts belowj did not take intl account that the ! I said alleged property was illegally imported by PW1 I I iv. That the courts below :, did not properly evaluate the ; I contradictory

evidence ofi,the witnesses on the prosecution. I V. That the two courts below did not satisfy themselves I' I whether the alleged stol~,n property was properly identified ,'i in the absence of any de~ription . . 1j vi. The doctrine of recent po$session was not properly invoked. I vii. In the absence of an identification parade, the second appellant was not properiv identified give~ that the robbery I I took place at night. I viii. The lower courts wrongly acted on the a pellants' cautioned I! I . statements which were taken contrary to sections 50 and 51 of the Criminal Procedur~; Act and admittJd without inquiring into their voluntariness. 1 1 ix. That the two courts beloW erred in acting on the cautioned ,. I I statements without corroboration.

I I I ,, I I The appellants then urged us ;to allow their appeals. . I I I . I On the other hand, Mr. I~mail Manjoti, the learned State . : I Attorney, who appeared for the respondent/Republic conceded that i I st the evidence of visual identificatiop was weak, thaf the 1 appellant was not identified at all, that th~ alleged stolen /property was not properly identified and none of it ~as physically fdund in possession I I of the appellants, so the doctri0e of recent pdssession was not properly invoked in the circum~nces. He also/ conceded that in large part, the provisions of sectior 210 (3) of the /Criminal Procedure Act, was not complied with in recording the eJidence of PW4 to I I PW13, but was not certain wh~ther this irregJlarly was curable,

II I under section 388 of the Criminai Procedure, Act, He wound up by I submitting that if the Court found that, that omission was curable he .r I I would fully support the conviction. In his vifw, despite these I weaknesses in the prosecution c~se, the same a~e overwhelmed by 1, I the appellants' confessions (Exhi'. P.7 and P.8) He said that these were admitted without objectiJn from the aJpellants and their i, I I I :5 !

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I I I attempt to recant them during their defence was a mere I 1 1 i I afterthought. He further submitted that the cautioned statements ! I . f I were corroborated, first by the 1st ppellant's oral ,onfession to PW1 at Kiwalala, and their conduct to attempt to ru~ away from the custody of PW1 and village authorities. I I I I This is a second appeal. we,iare alive to the ~act that in such a I i case, an appellate court should be very slow in disturbing the I I concurred findings of facts of th;e lower courts unless the courts below have completely misapprehended the substance, nature, and ,: I quality of the evidence resulting into an ·unfair conviction (See i 1 I MICHAEL ALLAS v R, Crim inal Appeal Nb. 243 of 2007 I (unreported.) j

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I I I We shall begin by disposing those grounds relating to the non , I compliance with section 210 (3) ,:of the Criminal /Procedure Act and the one on the alleged illegally i~ported kerosen~ by PW1. We shall only give one short answer. 6 As a matter of general principle an appellate court cannot allow ; I matters not taken, pleaded, or decided by the crrts below to be raised on appeal. (See. KENEDY: OWINO ONYrcHI AND TWO OTHERS vs R, Criminal Appeal No. 48 of 2106 (Unreported), GANDY VS GASPER AIR CHARTER (1956,) 23 ffXH. 139 MELITA , I NAIKMINTAL & ANOTHER VS' SELLEYO LOIBANGAJI (1998,) I . TLR. 120 KAMANDO CHISIMA VR, (1995) TLR 1140.) i I I ! Since no complaint was raised in the trial court or the first I appellate court about the alleged irregularities, it was not proper and .': I this Court cannot entertain such grounds of apReal. We therefore I j, I reject them. Coming to the substance of the other grounds of appeal, we wish to note that the conviction oi the appellants i~ thi~ case is based on three classes of evidence, visla1 identification! recent possession I I and cautioned statements of the' appellants which as demonstrated i I above, have attracted heavy criti~sm from the afellants. 17 i! First, we propose to set oJ the principles of law governing i those aspects, albeit briefly. In eridence of visual identification, the 1: court has to be satisfied that for

positive identification of the suspect 1 all possibilities of mistaken identiJ must be elimina~ed (See WAZIRI Ii I' I· AMANI v R, (1980, TLR, 252~) In such cases the court has consistently held that the evideJce of descriptiJn of the suspect, I; I naming him at the first opportunity, and if at night the intensity of light aiding the identifier, are factJrs of the higheJ importance. (See JARIBU ABDALLAH v R, Cri~inal Appea; ~o. 220 of 1984, (unreported)). But if an accused berson is known to a witness there is no need of any description. ,(See PAULO MAKARANGA v R, I I Criminal Appeal no. 26 of 2006 (Jnreported.)) But naming him at the I I first opportunity has been held to have enhanced the credibility of such witness. • I With regard to the doctrinJ of recent possession, simply put, it !: l means that if one is found in possession of tHe fruits of a crime 1; I recently after it was committed,[ it is presumptil/le evidence against that person, not only that he r~ceived it with luilty knowledge or j: ,: I I: s stole it, or even of any aggravated! and minor crimes committed in I I the same transaction (See ALLY :~AKARI v R, Criminal Appeal No. 47 of 1991 (Unreported)) For the Jroper applicatJ of this doctrine, there must be evidence that the tjng possessed bt the accused has a reference to the charge IJid against h;m. (See SALEHE MWENYA & 3 OTHERS v R,+riminal Appeal no. 66 of

2006 (unreported)) Everything musi however, depend on the circumstances of each case. Fabors, such as Jhe nature of the property stolen, whether it be of a :kind that readilJ passes from hand to hand, and the trade or occupation to which trne accused person. i ' ' belongs can all be taken into account (See REPUBLIC v. HASSAN . /: I S/O MOHAMED (1948) 15 E. A. fA 121) But most importantly there must be proof that the property ras found with the accused (See ALLY BAKARI AND ,PILI BAKARI v R, (1992,) TLR 10.) ' Finally, a word about cautioned statements. These statements It are admissible under section 27 (it) of the Evidence Act (Cap 6- R.E. I 2002). But it must be proved thft they were volt1ntarily made by an 'I accused person. The burden of proving the voluntariness is on the ,9 I prosecution. The Criminal Procedure Act has now put in place I I statutory precautions that the police must take in recording such I I statements. These include section 50, 51, 57 and 58. This Court has 1 I I . recently declared that statements obtained contrary1 to the procedure I I laid down under sections 48 to 51 of the Criminal F>rocedure Act are I inadmissible. Similarly, those taken contrary to se~tion 57 and 58 of I I that Act (See JANITA JOSEPH KOMBA & 3 OTHERS v R, Criminal ! ' Appeal No, 95 of 2006 (unreported) No. A 5204: WRD VICTORY I I PASCHAL v R, Criminal Appeal No. 195 of 2006 (Ulnreported).)

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I I I There is a presumption however, that I a confession or I I statement was voluntarily made until objection to; it is made by the defence on the ground that it was not so, or that it was not made at I I all (See SELEMAN HASSAN v R, Criminal Appeal I no. 364 of 2008 I (unreported).) If any objection is taken after the trial court has I i informed the accused of his rights to say something in connection with the allegation, the trial court must stop everything, and in the ' I case of a subordinate court, proceed to conduct I an inquiry into the 1 voluntariness of the alleged confession before: such confession is

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I I I admitted (See TWAHA ALLY & 5 OTHERS v R, Criminal Appeal No. I I 78 of 2004 (unreported)). Otherwise it is an incurable irregularity. I I But the proper time to make such objection is ordirarily when such I I statement is about to be tendered (See KAZILA1 SIMBILA v R, I I Criminal Appeal No. 122 of 1990 (unreported)). W~en it is objected I to but the court rules that the cautioned statement/confession was I I made by the accused voluntarily the statement is nevertheless I I 1 rendered either repudiated or retracted, depending on the nature of I I the objection. In such a situation the position is that I although it is I dangerous to rely upon a retracted/repudiated ;confession in the I I absence of corroboration, the court could still act on such confession I i if it is conviced that it must be true (See TUWAf\101 v R, 1967, EA I I 84, and WANJA KANYORO KAMAU v R, 1965 Ei.A. 50.)

I I I Now, in the present case, there is no dispute that the robbery I I took place at midnight. PWl claims to have identified the second I appellant with the aid of moonlight and vehicle lights. It was his first I i time to see him. He admitted that he never sawI the first appellant i there, but saw him the next day at Kiwalala village, and where he I 11 I I (the first appellant) confessed to have been privy to the conspiracy. I I I PW3 did not identify any of the robbers because they darned police I I I uniforms and covered their faces with police caps. :PW6 claimed to I I nd have identified, among others, the 2 appellant. rte was in police uniform. There was bright moonlight and vehicle lights. He did not I I know him before. Therefore he only saw him at the scene of crime. I I So PW1 and PW6 claimed to have identified the 2nd appellant but I I only met the first appellant at Kiwalala. , On the other I hand although I I PW1 alleges that the whole saga lasted for about ralf an hour, and I there was moonlight, he and PW6 did not tell the cqurt how close the I I 2nd appellant had gotten to them, given that even PW3 who came to I a very close encounter with the armed thug who hitI him on the head, I I could not identify any of them because they had covered their faces I I I with police caps. The record is silent if PW1 and ~W6 ever gave any I I detailed description of the second appellant to the next person to whom they first reported or to the police. In the: circumstances, we I I think that much as PW1 and PW6 may have b'een honest in the I I absence of an identification parade, the identification of the second

I I I appellant at the scene of crime was not,I satisfactory, let i · 12 1: 11 alone the fact that they did not i8entify the first appellant at the scene of crime. So this piece of evidence of visual idbntification could I not ground a conviction. There is no doJbt that then~ is evidence of the arrest of the I Ii appellants at a house in Kiwalala vvhere the first a~pellant is alleged :i to have confessed to have been priw to the robbery and promised to I assist PWl in recovering his m~rchandise. Jere is then the evidence of their conduct when they attempted to run away, as they I! I were under arrest and being tak~n to show whete the rest of the kerosene tins were .hidden. +at apart ho4ever, nothing of substance was found in their pos~ession. ,I As shown above, in order to involve the doctrine of recent , possession, the accused must be 1 proved to have been found in possession of the stolen property. In Ii I order to prove that pOssession th1re must be acclptable evidence as to the search of the suspect an~ recovery of tme allegedly stolen iI, . r I property (See CHRISTOPHER RABIA OPAKA v R, (Court of Appeal I, I 1: of Kenya) Criminal Appeal No. 82 of 2004(unrepred)) and HAMIS MEURE v R, 1993, TLR, 213). In the present case, there was • l neither a proper search (if at all) npr were the api:>iellants found in I I possession of the stolen kerosene. : It follows that1 the doctrine of recent possession was wrongly inloked here. Thire is therefore i. ! substance in this ground of complaiht too. ' I I I, I I The appellants cautioned sta~ments were. admitted as exhibit

I I I nd P7 (2 appellant) and PS (1st aprllant) respectity. When they were asked if they had any objections, the appellants told the trial I II, court that they had no objecti$ns, although tlhe 2nd appellant I' I extensively cross examined on h6w the statemeht was recorded; I I: whereas the 1st appellant never}asked anything at all. However, ! both of them denied in their defences having ever written any ,,I' statements to the police. But as jshown above and as submitted by Mr. Manjoti, their denial were m~re afterthoughJ, having failed to object at the time of their ad~ission. As a tatter of practice I f ! I however, such statements ought to be corroborated, although : I I, convictions based on such confessions would not necessarily be 1 I illegal. I, I 14 .. I. We have studied exhibits P7 and P8. We are satfied that they I 11 : I contain so much detail of the transac~ion that the police officers who I I j, recorded them could not have concocted them. They contain I I nothing but the truth. The conduct 0f the appellants in trying to run

I I I away from PWl and PW6 is demonstrative of guilty c0nscience and in I ' ' our view, sufficient corroboration to ~he confessions. Having discussed the above it is hardly necesJry to discuss the . other grounds of appeal raised by t~e appellants, b~ause we do not I: I think their decisions are necessary for the deterimination of this I I, appeal. For the above reasons we are satisfied that the guilt of the I appellants has been proved beyon~ reasonable dowbt. Although, the 1st appellant was not at the scene /of crime he is al guilty a principal 1 I I offender as the other participants ~n terms of secti~n 22 of the Penal I Code as he was part of the whole conspiracy. Their appeal are therefore devoid of merit, and ~re accordingly ~ismissed in their entirety. / 5 I st DATED at M1WARA this 1 day of October, 2010. I M.S. MBAROUK

JUSTICE OF APPEAL SJ. BWANA

JUSTICE OF APPEAL S.A. MASSATI

JUSTICE OF APPEAL

COUR 16