CRIMINAL APPEAL NO 290 OF 2020 BARAKA MWITA WA 240612 093210

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: MWARIJA, J.A., MWAMPASHI. 3.A. And MURUKE. J.A.^ CRIMINAL APPEAL NO. 290 OF 2020 BARAKA MWITA @ WAITARA MWITA............................................ APPELLANT VERSUS THE REPUBLIC...........................................................................RESPONDENT (Appeal from the Judgement of the Court of the Resident Magistrate of Musoma at Tarime) (F. L. MOSHI. PRM- Ext. Jur.^ Dated the 25th day of May, 2022 in Criminal Sessions Case No. 11 of 2021 JUDGMENT OF THE COURT jd & llt hJune/ 2024 MWARIJA. J.A.: In this appeal, the appellant, Baraka Mwita @ Waitara Mwita is challenging the decision of the Resident Magistrate's Court of Musoma at Tarime in Criminal Sessions Case No. 11 of 2021 (Moshi, PRM Ext. Jur.) dated 25/5/2022. In that case, the appellant was charged with the offence of murder contrary to sections 196 and 197 of the Penal Code, Chapter 16 of the Revised Laws (the Penal Code). It was alleged that, on 6/7/2020 at Gwitare Village within Tarime District in Mara Region, the appellant murdered one Mariba Wansato Mwita @ Kichichi. The charge was initially filed in the High Court of Tanzania at Musoma as Criminal Sessions Case No. 43 of 2021. It was however, in terms of s. 256 A (1) of the Criminal Procedure Act, Chapter 20 of the Revised Laws (the CPA) transferred to the Resident Magistrate's Court of Musoma to be heard by Moshi, PRM-Ext. Jur. When the information was read over to the appellant, he denied the charge and in order to prove its case, the prosecution called five witnesses to testify. On his part, the appellant relied on his own evidence in defence. Having considered the evidence, the trial court was satisfied that the prosecution had proved its case beyond reasonable doubt. It thus convicted and sentenced the appellant to suffer death by hanging. Aggrieved by the decision of the trial court, the appellant has preferred this appeal. The facts of case are not complicated. The deceased is a younger brother of the appellant. On 6/7/2020, the deceased went to see his elder father, Matiko Mwita who was sick. The houses of the deceased and that of his elder father were close to each other, about five paces apart. The compound at which the appellant's house is situated consisted of six houses in total. On that date, the deceased's son, Moria Maiba Wasato (PW2) and the son of Matiko Mwita, Petro Matiko Mwita (PW3) were at home. Whereas PW2, who was at the material time aged 16 years and a standard VII student, was reading outside the house, PW3 who was aged 2 15 years was preparing grass for thatching their house. According to the evidence of PW2 and PW3, as he was coming out of his elder father's house, going back to his residence, the deceased was followed and attacked by being beaten with a club on his head and ribs. As a result of the beatings, he sustained serious injuries which later caused his death. In his evidence, PW2 stated that, the deceased was attacked by the appellant. The witness testified further that, at first, while the deceased was inside the house of Matiko Mwita, he saw the appellant who had a machete and a club heading to that house uttering that he would, on that date, kill a person (leo nitaua mtu). PW2 went to Matiko Mwita's house and informed him of what he had heard from the appellant. As the deceased was getting out of Matiko Mwita's house, PW2 went to state, he saw the appellant wielding a club while following the deceased, shouting that he would kill him. The witness said that, after catching up with the deceased, the appellant attacked him by beating him with a club on the head and ribs and when the deceased fell down, the appellant ran into the maize field and disappeared. According to the prosecution, the incident was also witnessed by PW3 who gave evidence which is similar to that of PW2. Supporting that evidence, PW3 testified that, on the material date, while the deceased was getting out of Matiko Mwitas's house, he saw him being beaten by the appellant with a club on his head and chest. Before that act which PW3 3 said he observed at a close distance, he heard the appellant uttering that he would, on that date, kill a person (leo nitaua mtu). As a result of the attack, he said, the deceased fell down. The deceased was taken to Magoto Health Centre where he was attended by Dr. Hamis Rajab Rossan (PW1). Testifying in court, PW1 said that, he received the deceased who was in a critical condition; he could not speak and was breathing with difficulty. He examined the deceased and found that he had a swelling on the head which, when he pressed it with a finger, he found that the skull on that part had been depressed. While in the process of assisting him to breath properly, the deceased passed away. PW1 then advised the deceased person's relatives to report the incident to the police. It was PWl's evidence further that, the deceased's death was due to brain damage. He tendered the postmortem examination report in respect of the deceased and the same was admitted in evidence as exhibit PI. When the information about the incident was made to Tarime Police Station, the OC-CID and G.8319 CpI. Nicholaus (PW4) went to the scene of crime. PW4 drew a sketch map of the scene of crime on the guidance of the deceased's son. The witness tendered the sketch map which was admitted in evidence as exhibit P2. The evidence on how the appellant came to be arrested was adduced by H. 578 D/Cpl Tenderwa (PW5). He testified that, upon 4 information to the OC-CID by an undisclosed person (the informer) that the appellant was at Bugarika within Nyamagana District in Mwanza Region, he was sent to arrest him. PW5 went with the informer to Bugarika on 4/7/2020 and upon being pointed out by the informer, the appellant was arrested. In his defence, the appellant, who testified as DW1, disputed the evidence to the effect that, he was identified at the scene of crime. He raised the defence of alibi. He testified that, in 2020 he was residing at Bugarika Mwanza where he was working as a mobile phones repairer. While there, he was informed by Mwita Matiko about the death of their elder brother, Mariba Wansato, the son of his elder father (the deceased) which occurred on 6/7/2020. He was required to attend the burial ceremony and thus travelled from Mwanza to Gwitare Village for that purpose. He said that, after the burial ceremony he returned to Mwanza where he stayed until on 4/9/2020 when he was arrested. Having considered the evidence adduced by the prosecution and the appellant, the learned trial PRM-Ext. Jur. was satisfied, first, that the evidence of PW2 and PW3 had sufficiently proved that the appellant was positively identified at the scene of crime as the person who attacked the deceased thereby causing his death and secondly, that the appellant acted with malice in causing the deceased person's death. The trial court found further that, the appellant's defence of alibi did not raise any reasonable 5 doubt in the prosecution evidence, particularly the evidence of PW2 and PW3 which was found to be credible. Relying on the case of Edgar Kayumba v. DPP, Criminal Appeal No. 498 of 2017 (unreported), he argued that, once it is proved that an accused person was properly identified at the scene of crime, the defence of alibi would not displace the prosecution case. In his memorandum of appeal, the appellant has preferred six grounds of appeal which may be paraphrased as follow: 1. That, the trial court erred in law and fact by conducting a preliminary hearing in contravention of s. 192 of the Criminal Procedure Act, Chapter 20 of the Revised Laws by listing the agreed matters without first stating the disputed ones hence prejudicing the appellant. 2. That, the trial court erred in law and fact by acting on the identification evidence of PW2 and PW3 who, despite the contention that they were the relatives of the appellant, did not disclose whether it was made in the daylight or night hence having eliminated the possibility that it was made under difficult conditions, thus not warranting conviction. 3. That, the trial court erred in law and fact in acting on the contradictory evidence of PW2 and PW3 on the words which were alleged to have been uttered by the appellant before he attached the deceased person. 4. That, the trial court erred in law and fact in failing to accord weight to the appellant's defence of alibi. 6 5. That, the trial court erred in law and fact by acting on the evidence of PW5 whose period of experience in the practice was questionable. 6. That, the trial court erred in law and fact in convicting the appellant while the prosecution had failed to prove its case beyond reasonable doubt. At the hearing of the appeal, the appellant was represented by Mr. Daud John Mahemba, learned counsel while the respondent Republic was represented by Mr. Tawabu Yahya Issa, learned State Attorney. Before he proceeded to argue the appeal, Mr. Mahemba informed the Court that he had decided to abandon the 1st, 3rd, 5th and 6th grounds of appeal. He therefore, argued the 2nd and 4th grounds only. Arguing the two grounds together, Mr. Mahemba contended that, the evidence of identification adduced by PW2 and PW3 was insufficient to prove the charge against the appellant. He explained that, since none of the prosecution witnesses specified the time at which the offence was committed, the trial court erred in failing to find that, there was doubt that the identification was made under difficult conditions because the prosecution evidence was deficient as regards the fact that there were favourable conditions for proper identification in such a situation. This is more so, he said, because according to the appellant, on the material date, he was at Mwanza and thus without a clear evidence from the prosecution witnesses that the offence was committed in the daylight, the appellant's defence of alibi should have been found to have raised a reasonable doubt as regards his identification, notwithstanding the fact that he was known to PW2 and PW3 by virtue of being relatives. The learned counsel challenged also the evidence of PW4 which showed the time of drawing the sketch map (exhibit P2) to be at 18:00 hrs. He argued that during the preliminary hearing, the witness was not named in the list of the persons who were intended to be called as witness by the prosecution. He urged us to expunge that exhibit and when that is done, he argued, the evidence on the time at which the identification was made, whether it was in the day or night will remain doubtful. In response to the submissions made in support of the 2nd and 4th grounds of appeal, Mr. Issa argued, first, that the identification of the appellant by PW2 and PW3 was watertight. He stressed that, from their evidence, the witnesses were outside the house conducting the activities which could not be carried out in the night; that PW2 was reading books while PW3 was preparing grass for house thatching. Secondly, he submitted that, the appellant was known to the two witnesses because they are relatives and therefore, their evidence was that of recognition which is more reliable than that of identification. He cited the case of Masamba @ Musiba Masai Musamba v. Republic, Criminal Appeal No. 138 of 2019 (unreported) to bolster his argument. Thirdly, the learned State Attorney argued that, the issue whether the offence was committed in the daylight or at night was not raised at the trial and should not therefore, be accorded weight in the appeal. On the appellant's defence of alibi, Mr. Issa submitted in response that, it was proper for trial court not to accord weight to that evidence because of the strong evidence of PW2 and PW3. Citing the case of Edgar Kayumba v. Republic, Criminal Appeal No. 498 of 2017 (unreported), the learned State Attorney argued that, when visual identification evidence of a witness is believed, the evidence of alibi by an accused person dies a natural death. On those submissions, the learned State Attorney urged us to dismiss the appeal and uphold the appellant's conviction and sentence. We have duly considered the submissions of the learned counsel for the appellant and the learned State Attorney for the respondent Republic. The crucial point at issue is whether or not the appellant was identified at the scene of crime as the person who attacked the deceased thereby causing his death. As shown above, the evidence of identification was adduced by PW2 and PW3 who, as stated above are relatives of both the appellant and the deceased. The two witnesses are therefore, in the position of recognizing the appellant unmistakenly. The main argument by the appellant is that, their evidence was unreliable because the time at which they observed the incident was not specified. It is true that the time was not mentioned. We also agree that, even though in exhibit P2 it is shown that the sketch map was prepared in the day time at 18:00 hrs, the witnesses who gave evidence on that matter (PW4) was not named in the list of the persons who were intended to be called by theprosecution as witnesses. This is a requirement under s. 264(1) of the CPA. The effect of a failure to do so renders the evidence of such person invalid. See for instance, the case of Sijah Shabani v. Republic, Criminal Appeal No. 538 of 2017 (unreported). The evidence of PW4 could havebeen valid had the prosecution issued a notice to call him under s. 289 (1) and (2) read together with s. 256A (3) of the CPA. Since that was not done, the evidence of PW4 together with the exhibit tendered by him are invalid. We therefore, expunge the evidence of PW4 and exhibit P2 from the record. That notwithstanding, the issue can be answered from the available evidence on the record. In the first place, as submitted by the learned State Attorney, the point that identification of the appellant was made under difficult conditions was not raised at the time when PW2 and PW3 gave their evidence. That being a point of fact, having not been raised at the trial, it cannot be raised on appeal. See- the case of Joel Mwangambako v. Republic, Criminal Appeal No. 516 of 2017 (unreported). In that case, faced with a similar situation, the Court observed as follows: "It is settled that the Court will generally not look at issues or matter that were neither raised no decided either by the trial or the High Court on appeal unless they were pure matters o f law". Secondly, it is clear from the evidence of PW2 and PW3 that, at the time of the incident, they were carrying out their activities outside their house. PW2, who was at the material time a standard VII student, was reading books while PW3 was preparing grass for house thatching. There is not doubt, and the appellant did not raise any, that those activities are normally being carried out in the daylight. The trial court believed the evidence of PW2 and PW3. After our re-evaluation of their evidence, we could not find any reason to differ with the trial court's finding on their credibility. In the event, we find that grounds 2 and 4 of the appeal are devoid of merit and thus dismiss them. On ground 6 of the appeal, in our considered view, its determination need not detain us. We agree with the learned State Attorney that, after having upheld the trial court's finding that the appellant was properly identified by PW2 and PW3 as the person who attacked the deceased, his defence of alibi becomes of no evidential value. In the case of Edgar Kayumba (supra), cited by the learned State Attorney, the Court quoted the following passage from the case of Abdallah Hamis Salum @ Simba v. Republic, Criminal Appeal No. 68 of 2008 (unreported): "It follows that the trial High Court having believed PW1 and PW2 on the evidence o f identification o f the appellant, the defence o f alibi dies a natural death". We find that, the defence of alibi was an afterthought. We thus equally find no merit in that ground of appeal and hereby dismiss it. On the basis of the foregoing reasons, we find the appeal lacking in merit and hereby dismiss it. DATED at MUSOMA this 10th day of June, 2024. A. G. MWARIJA JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Judgment delivered this 11th day of June, 2024 in the presence of the appellant present in person together with Mr. Daud Mahemba, learned counsel for the appellant and Ms. Joyce Godfrey Matimbwi, learned State Attorney for the Respondent/Republic, is hereby certified as