DPP vs Anderson Nakembetwa

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA DC CRIMINAL APPEAL NO. 95 OF 2022 (Originating from Criminal Case No. 82 of 2021 of Iramba District Court at Kiomboi) THE DIRECTOR OF PUBLIC PROSECUTION (DPP)......... APPELLANT VERSUS ANDASON NAKEMBETWA SHANGO............................... RESPONDENT JUDGMENT Last Order: 3/4/2024 Date of Judgment: 25/4/2024 MASABO, J.:- The Director of Public Prosecutions is aggrieved by the decision of the District Court of Iramba in Criminal Case No. 82 of 2021. In that case, Anderson Nakembetwa Shango was charged of arson contrary to section 319 of the Penal Code, Cap 16 R.E. 2019. It was alleged that on night hours of June 17th June 2021, the respondent while at Kyalonsangi Village within Iramba District in Singida region, set fire on the house of Eleen Abdallah Nakomolwa (PW1) and caused damages worth Tshs 3,565,000/=. When charge was laid at the respondent's door, he denied it as a result the case proceeded to a full trial. At its conclusion, the respondent was acquitted after the court found out that the prosecution failed to prove its case. Page 1 of 11 Agrieved by the acquittal, the DPP has knocked on the doors of this court by way of an appeal based on four grounds of appeal which I summarized as follows. One, the prosecution proved its case beyond reasonable doubt. Two, the evidence of visual identification by PW1, PW2 and PW3 was sufficient. Three, the court erred in holding that there was no sufficient evidence to establish the estimated damages. And, four, the court did not properly analyze the evidence before it as a result, it arrived at a wrong finding. During the hearing of the appeal both parties were represented. Mr. Francis Kesanta learned State attorney appeared for the respondent whereas the respondent was represented by Mr. Isaya Chimbi, learned advocate. Submitting in support of the appeal Mr, Kesanta consolidated the first and the second grounds of appeal and argued them as one. In support of this consolidated ground, he submitted that the offense of arson was proved to the required standards. That, as per section 319 of the Penal Code, for a conviction on arson to be entered, the prosecution had to prove that there was a person who unlawfully set fire on the building. This was adequately proved as shown in page 10 of the trial court judgment. In this page the court acknowledged that the prosecution evidence proved that arson was committed. All the prosecution witnesses stated that there was a person who set the house on fire and that such person used petrol which shows that he had an ill motive. Mr. Kesanta argued that, what remained in question is whether the respondent herein was the culprit. From the evidence, the incidence occurred at night and because the evidence identifying the culprit Page 2 of 11 was evidence of visual identification, the principle in the case of Waziri Amani vs Republic [1980] TLR 250 had to apply. He proceeded that as per this landmark case, there are conditions to be considered when the conviction is to be solely based on evidence of visual identification. Such conditions, he argued, were well considered and established. First, PW1 and PW2 stated that they saw the respondent at the scene and that they saw him through an electricity light and through the fire which he had set and which was illuminating the area. They also stated that they saw him holding a matchbox. Therefore, if they recognized that he had a matchbox which is a very small item it is obvious that they properly identified him. Also, PW1 testified that the distance between him and the respondent was only 5 paces. Not only that, the incident took a long time such that it was sufficient for these witnesses to identify the culprit. Mr. Kesanta submitted further that PW1 and PW2 knew the respondent very well as they had a land dispute with him a fact which the respondent admitted. Also, PW3 corroborated their story because he too stated that the respondent was known to him. Based on this, he argued that the evidence of visual identification was solid and it was proved that the person who set the house on fire was none other than the respondent here in. Therefore, the trial court materially erred by acquitting him. On the third ground of appeal Mr. Kesanta submitted that while it is true that evaluation report of the damaged assets was not produced in court, there Page 3 of 11 was sufficient evidence to that effect. PW1 stated at page 8 of the proceedings that there was an estimation of the value of the assets destroyed and this evidence was sufficient. In the alternative, he submitted that in any case, the value of the damaged assets is not an ingredient of arson. The conviction may be mounted even before ascertaining the value of the damaged assets. Therefore, the trial court materially erred in discharging the respondent simply because there was no proof of the value of the assets. Submitting on the last ground of appeal Mr. Kesanta, Mr. Nchimbi argued that the trial court materially erred by failure to properly analyze the evidence placed before it. That, had it analyzed such evidence properly by considering what has been submitted above, it would have established that the respondent here was the one who set the house on fire and he probably did so because of the land dispute between him and the victim's family. He argued that the failure by the trial court can be remedied by this court which, being the first appellate court, has powers to evaluate the evidence on record and come up with its own finding on whether or not the case was proved. Mr. Nchimbi for the respondent sharply opposed the appeal. He submitted that the first and the second grounds have no iota of merit because the trial court properly exercised its mandate in acquitting the respondent as the prosecution did not prove its case to the required standards which is proof beyond reasonable doubt. He explained that as correctly argued by the Page 4 of 11 learned State Attorney, the offense was committed at night and the principle in the case of Waziri Amani vs Republic (supra) is therefore applicable. As per this authority, several factors need to be considered before convicting an accused person based solely on the evidence of visual identification. These factors include the time, the distance between the witnesses and the prosecution and the light at the scene of the crime. All these were not proved. The evidence does not show the time spent in the commission of the offence. None of the witnesses mentioned the time he spent observing the respondent. Similarly, the distance between the witness and the respondent was unresolved as the evidence of PW2 and PW3 were silent on this issue. The mere mention of five paces was not a sufficient proof. As to the source of light and the extent of its illumination, it was submitted that, no sufficient evidence was rendered as to the intensity of the light. Therefore it remained unresolved and it was highly doubtful if the respondent was indeed identified. Also, there was a lack of consistent between the witnesses. For instance, PW3 stated that he identified the accused through moonlight but he never stated the intensity of such moonlight. PW1 and PW2 did not mention if there was moonlight or that they identified the respondent through such moonlight. This suggest that there was no such source of light. He concluded that the principle in Waziri Amani vs Republic (supra) was not established. He added that much as PW1, PW2 and PW3 stated that they knew the appeal, such knowledge cannot in itself suffice to implicate the respondent. As stated by the Court of Appeal in the case of Elias Gervas and Others vs R, Criminal Appeal No. Page 5 of 11 308 of 2019, much as familiarity is one of the factors for consideration in determining the credibility of visual identification evidence, it is not sufficient to mount a conviction. The other factors need to be considered as well. On the third ground of appeal, he submitted that indeed the value of the assets is not among the ingredients of the offense but in this case the prosecution alluded to it. Thus, he was bound to prove it but he did not. On the 4th and last ground, he submitted that there is nothing to fault the trial court as it properly evaluated the evidence and correctly established that the respondent was innocent. The existence of a dispute between him and the victims was possibly the reason why the victim pointed at the respondent as a culprit. Having said so he closed his submission and prayed that the appeal be dismissed. In rejoinder, Mr. Kesanta reiterated his submission in chief and he argued that the case against the respondent was approved as the criteria established in the case of Waziri Amani vs Republic (supra) were all proved. PW1 and PW2 saw the respondent through a window. There was solar light illuminating the scene, the fire was also illuminating and the respondent was familiar to the witness. Thus, it was a lucid misconception for the trial court to acquit him. On my part, I have thoroughly read the record and I am now poised to determine the appeal. Section 319 (a) of the Penal Code against which the respondent was charged, provides that: Page 6 of 11 319. Any person who willfully and unlawfully sets fire to- (a) any building or structure whatever, whether completed or not; is guilty of an offence and is liable to imprisonment for life. From the evidence on record and as submitted by the parties herein it was under no dispute that, the house of Eleen Nakomolwa (PW1) was set on fire. PW1 was within the same house when it was set on fire at 21:00 hours on 17th June 2021. Her story was corroborated by PW2, PW3, PW4 and PW6 who eye-witnessed the incident and participated in extinguishing the fire and in rescuing the victims and their assets. What remained at issue is whether the respondent herein was sufficiently implicated as the culprit of this incident which happened in the night at about 21 hours. The trial court was of the firm view that the respondent was not implicated and it consequently acquitted him. Mr. Nchimbi for the respondent has submitted that this finding was quite in order as no sufficient evidence was produced to show that the person who set the house ablaze was none other than the respondent herein. On the other hand, Mr. Kesanta has passionately argued that the respondent was wrongly acquitted as there was sufficient evidence against him. Relying on the case of Waziri Amani vs Republic (supra) he argued that much as the evidence implicating the respondent was solely based on visual identification, such evidence was solid and capable of mounting a conviction. Thus, it was wrong for the court to acquit him. As submitted by both parties herein, the law on evidence of visual identification was propounded in the landmark case of Waziri Amani vs Page 7 of 11 Republic (supra). It has since then been tested in a plethora of cases and it is now very well settled. See for example, the decisions of the Court of appeal in James Kisabo @Mirango and Another vs Republic (supra); James Kisabo @ Mirango and Another vs Republic Criminal Appeal No. 216 of 2006 (unreported); Christopher Chacha @ Msabi & Others vs Republic (Criminal Appeal No. 235 of 2009) [2016] TZCA 792 and Rajabu s/o Issa Ngure vs Republic Criminal Appeal No. 164 of 2013) [2013] TZCA 461 and Alfredy Kwezi @ Alfonce v. Republic, (Criminal Appeal No. 216 of 2021) [2022] TZCA 355 TanzLII. Through these and a plethora of other cases, it is well established that where the sole evidence implicating the accused person is visual identification, no conviction should be entered unless the possibility of mistaken identity has been eliminated. Underlining this principle in Alfredy Kwezi @ Alfonce v. Republic (supra), the Court of Appeal stated that:- "...before a court can found conviction basing on visual identification, such evidence must be watertight so as to remove the possibility of honesty but mistaken identity. In such cases the court is required to consider, among others, the following matters; one, the time the witness had the accused under observation; two, the distance at he observed him, three, the conditions in which such observation occurred, for instance whether it was day time or night time, whether there was good or poor lighting at the scene; four, whether the witness knew or had seen the accused before or not; and five, all factors on identification considered, it should be also be plain that were any material impediment or discrepancies affecting the correct identification of the accused person by the witness". Page 8 of 11 Where the offence was committed in the night such as in the present case, the law requires that the source and the intensity of the light by which the accused was identified be disclosed. Cementing this requirement in Byamtonzi John @ Buyoya vs Republic (Criminal Appeal No. 289 of 2019) [2021] TZCA 385 TanzLII, the Court of Appeal cited its previous decision in Hassan Said v. Republic, Criminal Appeal No. 264 of 2015 (unreported) where it observed that; "It is however, now settled, that if a witness is relying on some source of light as an aid to visual identification such witness must describe the source and intensity of such light in details. The Court has repeatedly in its various decisions in this respect, emphasized on the importance of describing the source and the intensity of the light which facilitated a correct identification of the appellants at the scene of crimes. While reading the record of the present case, I have observed that, indeed the sole evidence implicating the applicant was visual identification by PW1, PW2 and PW3. PW1 told the court that soon after she went to sleep, she smelt petrol and when she looked outside the house, she saw the respondent standing while holding a match box. He then lighted the matchbox and set the house on fire. This witness also told the court that she and the respondent had a land dispute. When cross examined, she stated that she mentioned the respondent as a culprit because they had a land dispute. Later on, and still on cross examination, she stated that she saw the accused through the window of her house. As to the distance, the source of light and Page 9 of 11 its intensity, she said nothing in the course of her examination in chief. In cross examination, she admitted that she said nothing as to the distance, the source of light and its intensity. She stated for the first time in cross examination that her house had a solar lamp and when asked about the distance between the window and the solar lamp, she said she did not know. She also stated that, she had no clue whether the solar lamp was directly illuminating the accused. Later on, she stated that the fire was the source of the light by which she identified the respondent. On her part, PW2 Rehema Rabani stated in her examination in chief that she saw the respondent outside the house but she did not state how she identified him. On cross examination she stated that she saw the respondent setting fire by a matchbox. She stated that, although there was a solar lamp outside the house, the same was not illuminating at the respondent. Cross examined further, she admitted that she neither stated in her testimony the appearance of the accused and his attire at the scene. PW3 stated that, he saw the respondent running away but did not see him setting the fire. Unlike PW1 and PW2, this witness stated that he identified the respondent through moonlight. Just like PW1 and PW3, this witness said nothing about the respondent's attire and physique and when cross examined, he admitted that he did not. When the principle above and its non-exhaustive list of factors for consideration is applied to the evidence of these three witnesses as above summarised, it is patently clear that the identification of the appellant by PW1, PW2 and PW3, did not meet the threshold required. None of the three Page 10 of 11 witnesses above sufficiently identified him or gave a water tight account of how he identified him. Starting with PW1, the credibility of her account was watered down not only by her failure to state how she identified the respondent in her statement in chief but also her contradictory account in cross examination. The testimonies by PW2 and PW3 are also seriously wanting as it is clearly demonstrated above. Considered simultaneously, PW2's and PW3's failure to describe the respondent's physique and attire and the admission by PW2 that the solar lamp outside the house was not illuminating at the respondent, all reveal an appalling mischief and demonstrates that the identification was not watertight. In the foregoing, I subscribe to Mr. Nchimbi's view that the respondent was not adequately implicated. Hence, the court was justified in acquitting him. The first, second and fourth ground of appeal, are therefore with no merit and are overulled. Having overulled these three grounds, I see no need to proceed to the third ground of appeal as it will only serve an academic purpose. Accordingly, the appeal is dismissed. The judgment and order of the trial court are upheld. DATED and DELIVERED at DODOMA this 25th day of April, 2024. J.L. MASABO JUDGE Page 11 of 11