IBRAHIM JDM

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM : SEHEL, J.A.. KITUSI, J.A. And MAIGE. J.A.^ CRIMINAL APPEAL NO. 75 OF 2021 IBRAHIM ESTON............................................................................... APPELLANT VERSUS THE R EPU B LIC ......................................................................... RESPONDENT (Appeal from the decision of the Court of Resident Magistrate of Mbeya at Mbeya) (Mwakatobe, PRM-Ext. Jur.l dated the 31st day of December, 2020 in Extended Jurisdiction Criminal Appeal No. 67 of 2020 JUDGMENT OF THE COURT 1st & 5thJuly, 2024 SEHEL, J.A.: "O, sir.... this drudge... la id claim to me; called me Dromio; ...told me what privy marks I had about me, as the mark o f my shoulder, the mole in my neck, the great wart on my le ft arm ...." A maid, mistaking Dromio of Syracuse for his twin brother, Dromio of Ephesus in a book called " The Comedy o f E rro rs by William Shakespeare. The mistaken identity had been the defence of Ibrahim Eston, the appellant herein, all along even in this second appeal which is before us. l The appellant was charged before the Court of the Resident Magistrate of Mbeya at Mbeya (the trial court) with three counts of grave sexual abuse contrary to section 138C (1) (a) and 2 (b) of the Penal Code. He was sentenced to a term of twenty-five (25) years imprisonment for each count. The sentences were to run concurrently. He was further ordered to pay each victim a compensation of Tanzania Shillings One Million (TZS. 1,000,000.00). It was particularized in the charge sheet that, on 12th May, 2018, at Ilomba Ward in Iyunga Division within the City and Region of Mbeya, for sexual gratification, the appellant used his genitals and tongue to rub/touch the vaginas of PK, IN and BA, their names are withheld in order to preserve their dignities. Nonetheless, for the purpose of this judgment, we shall be referring them as "PW1""PW2" and "PW3" respectively or "the victim(s)." The prosecution case is as under: On Saturday, the victims went to school to prepare for Inter Primary School Games in Tanzania, commonly known as UMITASHUMTA. Around 11:00 hrs, while they were seated under a guava tree, a young man appeared and asked them why they were eating unripe guavas. They started to beg for forgiveness but the young man decided to punish them together with two male students, namely, Omary Ali and Joshua Ayubu Mbembela (PW7 and PW8 respectively) who were standing nearby. They were ordered to collect trash around the school compound. As they were continuing with the punishment, the said young man further directed them to clean Standard VIIB classroom which they did. It happened that the boys were released as they were told that they did their work very well. The victims were left to continue with the punishment. When they were collecting of the trash, the said young man ordered them to undress, lie down and hang their legs on the desk which they obliged because they were threatened by a knife and a razor blade. He then started to lick those private parts with his tongue and rub his manhood on their private parts, one after the other. Having satisfied himself, he disappeared from the scene of crime. The victims collected themselves and went straight to the headmistress's house, one Kissa Lebi Mwatobe (PW10) to report the matter but she was not around. PW1 returned home and narrated the ordeal to her sister as her mother was not around. PW2 and PW3 decided to report the matter to the police only to be told that they should bring their parents. Therefore, they each went back home whereby PW2 called her mother who was living in Dar es Salaam and narrated the ordeal to her while PW3 narrated the ordeal to her aunt, one Rose. According to the evidence of PW3, her aunt informed her mother, one Amina Peter Kyando (PW5). 3 On Monday, the 14th May, 2018, the victims did not report to school. PW7 and PW8 who went to school reported the matter to their teacher named Ezekiel Dominic Soca (PW9). Mr. Soca then informed PW10 who decided to summon the parents of the victims, Eliza Laban Mbwaga (PW4) who was the mother of PW1, PW4 and Haward Edward Gombela (PW7), the father of PW2. The parent-teacher meeting resolved to take the matter to the police. Therefore, the matter was reported at Ilomba Police Post. The investigative officer with Police Force Number, F. 2157 Detective Corporal Geofrey (PW11) said that on 21st May, 2018, when he was assigned the casefile for investigation, the appellant was already under arrest. He was arrested by Ikulu Primary School students and was in remand. He issued to the victims the Police Forms Number Three (PF3s) and they were then taken to Kiwanjampaka Health Centre for medical check-up. In their evidence, the victims, PW7 and PW8 said that they were not familiar with their assaulter. Nonetheless, PW1 and PW3 claimed that they would be able to identify the assaulter since on that fateful day he wore dark blue jeans with a white shirt with long sleeve and held a shirt with long sleeve and red strips. Apart from that, during their testimony, PW2, PW7 and PW8 described their assaulter by his physical appearance that he was tall, black and had a beard. It happened that, on Thursday of 16th May, 2018 while PW2 was at Ilomba Centre where she went to buy chips, she saw the appellant and identified him as their assaulter. She rushed back to school and informed her teacher, one Jane Mkwama who organized for the arrest of the appellant. He was arrested and taken to PWlO's office. PW10 summoned PW2, PW3, PW7 and PW8 in her office to identify the appellant. They all identified him to be their assaulter. As earlier on stated, the appellant was arraigned before the Court of Resident Magistrate of Mbeya at Mbeya. In his defence, the appellant denied committing the offence although he acknowledged that, on Thursday, while he was with his colleague, Anuary Iddi Besha (DW3) passing by at Ikulu Primary School, he was arrested by the students and taken to Ilomba Police Post. Thomas Kajigili (DW2) told the trial court that, on Saturday, he was with the appellant all day long, at his working station. At the end of the trial, the trial court was satisfied that the appellant was adequately identified by the victims, PW7 and PW8. It stated that: "... according to both PK, IN, BA, PW7 and PW8 the incident occurred at about 11 am which was a day time. Also, the accused stayed with the 5 victim s in the ciass (class VIIB) for several minutes. Furthermore, the accused had time to punish PW 7 and PW8 the fact which shows that the victim s and the other two boys (PW7 and PW8) had enough time to observe his appearance. Also, the fact that the accused was arrested together with another youth (DW3) but a ll the victims, PW7 and PW8 identified only the accused person without any difficulty proved further that they properly identified the accused person on the m aterial date." Accordingly, the appellant was found guilty as charged. He was convicted and sentenced as earlier on stated. Aggrieved by the conviction and sentence, the appellant appealed to the High Court of Tanzania at Mbeya and one of his grounds of appeal was on identification. The High Court, acting under section 45(2) of the Magistrates' Courts Act transferred the appeal to the Court of Resident Magistrate of Mbeya at Mbeya Dodoma (the first appellate court) where it was heard by N. W. Mwakatobe, PRM with Ext. Jur. The first appellate court observed that the identification of PW1 was doubtful since, in her evidence, she said that she could not properly remember their assaulter. It further remarked that the Identification Parade would not have served any purpose as the appellant was 6 arrested by the identifying witness, one, PW2. The first appellate court was convinced with the identification made by PW2 which it found to be credible and corroborated by the evidence of PW7 and PW8. In that respect, it upheld the conviction and sentence and dismissed the appeal. Still dissatisfied, he has come to this Court on a second appeal. The memorandum of appeal comprised of the following grounds: "1. That, the tria l court and the first appellate court erred in law and fact as the memorandum o f undisputed facts neither was it read out nor explained to the appellant (then accused). 2. That, the tria l court and the first appellate court erred in law and fact as the charge was not read over nor explained to the appellant (then accused) before defending himself. 3. That, the conviction o f the appellant was based on contradictory evidence o f the prosecution witnesses. 4. That, the tria l court and the first appellate court erred in law and fact by acting upon weak identification evidence of the prosecution witnesses. 5. That, in the absence o f properly conducted identification parade, the prosecution failed to 7 prove that the victim s properly identified the appellant. 6. That■ the tria l court and first appellate court erred in law and fact as the voire dire examination in respect o f PW1, PW2, PW3f PW7 and PW8 was not properly conducted. 7. That, both the trial court and first appellate court did not consider nor evaluate the defence evidence. 8. That\ the case against the appellant was not proved beyond reasonable doubt." At the hearing of the appeal, the appellant appeared in person, unrepresented whereas Mr. Alex Mwita, learned Senior State Attorney, assisted by Mr. Emmanuel Bashome, learned State Attorney, appeared for the respondent Republic. Before dealing with the appeal, we wish to preface this judgment with the settled principle governing an appeal at the second stage that, the Court rarely interferes with concurrent findings of facts by the courts below. We can only interfere where there are mis-directions or non­ directions on the evidence, or where there was a miscarriage of justice or a violation of some principle of law or practice - see: The Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 149 and Musa Mwaikunda v. The Republic [2006] T.L.R. 387. Now back to the appeal, when the appellant was invited to argue his appeal, he opted to adopt the grounds of appeal and urged the Court to set him free from the prison custody basing on the grounds of appeal he raised. The learned Senior State Attorney begun his submission by declaring his stance that he does not support the appeal. He further informed the Court that he will conjunctively respond to the 4th and 5th grounds of appeal which raise the issue of identification of the appellant, and that, he will separately respond to the remaining grounds of appeal. On our part, we wish to deal first with the grounds challenging the procedure adopted by the trial court in conducting the appellant's trial. These are the first, second and sixth grounds of appeal which the appellant had nothing to rejoin on them. We shall start with the first ground of appeal where the appellant complained that the memorandum of facts not in dispute was not read over to him during the conduct of the preliminary hearing. Mr. Mwita, outrightly conceded to the anomaly. He argued that, in terms of section 192 (3) of the Criminal Procedure Act (the CPA), at the conclusion of the preliminary hearing, the trial court is mandatorily required to read over and explain to the accused person the matters not in dispute. He pointed out that the record of appeal bears out at pages 8 to 9, the 9 memorandum of matters not in dispute were not read over to the appellant. Nonetheless, he was quick to respond that the said omission did not prejudice the appellant nor rendered the entire trial court's proceeding null. It only vitiated the proceedings of the preliminary hearing. To cement his argument, he referred us to the case of the Director of Public Prosecutions v. Jaba John (Criminal Appeal No. 206 of 2020) [2022] TZCA 406 (11 July, 2020; TANZLII). For ease of refence, we wish to quote hereunder section 192 (3) of the CPA which provides: "At the conclusion o f a prelim inary hearing held under this section , the court shall prepare a memorandum o f the m atters agreed and the memorandum shall be read over and explained to the accused in a language that he understands, signed by the accused and his advocate ( if any) and by the public prosecutor, and then file d ." Our revisit of the record of appeal reveals that, after the trial court had conducted the preliminary hearing, the memorandum of matters not in dispute which appears at page 9 of the record of appeal was not read over to the appellant but it was signed by the appellant, the prosecution and the trial magistrate. It be noted that, in any criminal trials, the purpose of conducting preliminary hearing is to speed up such a criminal case since matters which are not disputed will be identified and there will be no need for the prosecution to bring witnesses to prove such undisputed facts. This means that non-compliance of section 192 (3) of the CPA will only vitiate the proceedings of the preliminary hearing; it will not vitiate the entire proceedings of the trial court which was fully conducted - see: Kalist Clemence @ Kanyaga v. The Republic, Criminal Appeal No. 1 of 2000 (unreported) and the Director of Public Prosecutions (supra). It is on record that the prosecution called eleven witnesses who testified in the trial court and they were all cross- examined by the appellant. Further, the appellant himself had the opportunity to give his defence to counter the prosecution case. Accordingly, we find that the appellant was not prejudiced. This ground of appeal is therefore without merit and we dismiss it. We now move to the second ground of appeal that the appellant was not reminded of the charge before he entered his defence case. Mr. Mwita replied that the complaint is baseless because the law under section 228 of the CPA requires the charge to be read over to the accused person upon his arraignment and not at the stage of the mounting of his defence. He argued that, according to page 4 of the record of appeal, when the appellant was arraigned before the trial court for the first time, the charge was read over to him, he pleaded not guilty and a plea of not guilty was entered. Indeed, the law does not require the accused person to be reminded of the charge before he mounts his defence case. In the case of Aman Ally @ Joka v. The Republic (Criminal Appeal 353 of 2019) [2021] TZCA 170 (4 May 2021; TANZLII), we were faced with similar argument and we clearly stated that: "We are unaware o f any procedure requiring the presiding m agistrate to retake the accused's piea im m ediately before he presents his defence. As long as the presiding m agistrate had addressed the accused o f his rights in terms o f section 231 (1), (2) and (3) o f the CPA and that the accused made his election accordingly on the manner he w ill present his defence, the case m ust proceed for his defence." In the same vein, given that the appellant was addressed of his rights in terms of section 231 (1) (2) and (3) of the CPA, and that, he chose to give his defence under oath and called two witnesses, we find the compliant to be baseless. We accordingly proceed to dismiss it. In the sixth ground of appeal, the appellant complained that the evidence of PW1, PW2, PW3, PW7 and PW8 who were of tender age, 12 that is, below fourteen (14) years, was received without conducting a proper voire dire test. Responding to this complaint, Mr. Mwita submitted that section 127 (2) of the Evidence Act (the Evidence Act) was amended in 2016 through Written Laws (Miscellaneous Amendments) (No. 2) Act, 2016 (Act No. 4 of 2016). Prior to the amendment, the trial court was required to conduct voire dire test in order to establish whether the child of tender age knows the nature of oath or he/she possesses sufficient intelligence for reception of his/her evidence, and that, after amendment, such requirement was removed and now the child of tender age is required to promise to tell the truth and not lies to the trial court. He pointed out that PW1, PW2, PW3, PW7 and PW8 were witnesses of tender age and they all promised to the trial court to tell the truth and not lies as the law requires. Therefore, he urged the Court to dismiss this ground of appeal. On our part, we revisited the record of appeal and discerned therefrom that the trial court having noted that it was faced with witnesses who were of tender age probed them whether they will tell the truth and not lies. Each witness promised to tell the truth. We are therefore satisfied that the procedure adopted by the trial court before receiving the evidence of these tender age children was done in compliance with section 127 (2) of the Evidence Act. Therefore, we 13 entirely agree with the submission of Mr. Mwita that the changes brought by the Written Laws (Miscellaneous Amendments) (No. 2) Act, 2016 (Act No. 4 of 2016) which came into force on 8th July, 2016 removed the requirement of conducting voire dire test. Currently, section 127 (2) of the Evidence Act allows the child of tender age to give evidence without oath or affirmation, and that, before giving evidence, such child is mandatorily required to promise to tell the truth to the court and not to tell lies - see: the case of Godfrey Wilson v. The Republic (Criminal Appeal 168 of 2018) [2019] TZCA 109 (6 May 2019; TANZLII). It be noted that at the time PW1, PW2, PW3, PW7 and PW8 were giving their evidence in the trial court in 2018, the voire dire test was already scrapped off by the amendment. It was no longer a requirement of the law. Therefore, we do not find merit on this ground of appeal. We dismiss it. This takes us now to the grounds of appeal touching the merit of the appeal which are the third, fourth, fifth, seventh and eighth grounds. The rejoinder of the appellant on these grounds of appeal was a plea to consider, allow and set him free as he said he did not commit the offence. He insisted that when PW2 saw him at the school premises, she mistook him with another person. 14 Responding to the second ground of appeal that the prosecution evidence was full of contradictions, Mr. Mwita submitted that there was no contradiction as each witness testified on matters which he/she had personal knowledge. It was his submission that PW1, PW2, PW3, PW7 and PW8 gave evidence on how the appellant committed the offence; PW4, PW5 and PW6 who were the parents of the victims, testified on how they got the information; PW9, PW10 and PW11 gave evidence on how the matter was reported at school and police and on the arrest of the appellant. He added that if there was any contradiction, such contradiction was resolved by the first appellate court and it was ruled that it does not go to the root of the matter. He referred as to page 126 of the record of appeal. On our part, we discerned from the record of appeal that the first appellate court adequately dealt with the contradiction on the date the incident took place and we do not find any reasonable ground to fault the same. Though we find that the evidence of PW3 differs with the evidence of PW4 on the knowledge of the ordeal since PW2 claimed that her aunt Rose informed her mother but PW4 told the teachers that she had no knowledge on what had befallen to her daughter. We find such discrepancy immaterial. It is normal to have some discrepancies in the witnesses' accounts as minor contradictions, inconsistencies and 15 discrepancies by any particular witness or among witnesses do not corrode the credibility of a party's case while material contradictions and discrepancies do - see: the case of Dickson Elia Nsamba Shapwata & Another v. The Republic (Criminal Appeal No. 92 of 2007) [2008] TZCA 17 (30 May, 2008; TANZLII) and Lusungu Duwe v. The Republic (Criminal Appeal No 76 of 2014) [2014] TZCA 162 (6 June, 2014; TANZLII). Accordingly, we entirely concur with the first appellate court that the discrepancies, if any, are minor. The third ground of appeal is similarly baseless and we dismiss it. This takes us to the fourth and fifth grounds of appeal whereby the appellant complained that he was not properly identified. Mr. Mwita argued that the conditions which the identifying witnesses were in favour for correct identification of the appellant since the victims said that the incident took place at around ll:00hrs, that is, it was during a broad day light, and that, they stayed with their assaulter for quite some time from 11:00 hours till midday. It was his submission that the witnesses had ample time to observe their assaulter. He added that the description given by the victims in terms of the physical appearance and clothes worn by the assaulter gave credence on their evidence. To fortify his submission, he referred us to the case of Omary Hussein @ 16 Ludanga and Another v. The Republic (Criminal Appeal No. 547 of 2017) [2021] TZCA 543 (30 September, 2021; TANZLII). Having gone through the grounds of appeal and heard the submissions by the learned Senior State Attorney, we revisited the record of appeal and observed that the conviction of the appellant was based on the evidence of visual identification. Where visual identification of an accused person is the only vital factor in basing a conviction, courts have always been cautious on acting on it. This is due to the fact that it is the weakest evidence and inherently unreliable since even an honest and convincing identifying witness may as well be mistaken. In that respect, it has always been insisted that for the court to base conviction on visual identification, it must be satisfied on the conditions and factors favouring positive identification to rule out any possibility of mistaken identity lest serious miscarriage of justice result therefrom. For instance, in the case of Waziri Amani v. The Republic (1980) T.L.R. 280, the Court stated that: "No court should act on evidence o f visual identification unless, a ll possibilities o f mistaken identity are elim inated and the Court is fully satisfied that the evidence is w atertight The follow ing factors have to be taken into consideration; the time the witness had the 17 accused under observation; the distance at which he observed him, the conditions in which such observation occurred for instance whether it was day or night (whether it was dark, if so, was there moon light or hurricane lamp etc.) whether the witness knew or had seen the accused before or not." See also: the cases of Raymond Francis v. The Republic [1991] T.L.R. 100 and Issa s/o Mgara @ Shuka v. The Republic, Criminal Appeal No. 37 of 2005 (unreported). In this appeal, it is undisputed fact the alleged incident of grave sexual abuse took place during the day at around 11:00 hrs and lasted till midday. This means that the conditions and factors for identification were favourable and the identifying witnesses had ample time to observe their assaulter. However, it is not enough to look at factors favouring accurate identification, equally important is the credibility of the identifying witness and the ability to name the offender at the earliest opportunity - see: the case of Jaribu Abdalla v. The Republic [2003] T.L.R. 271. The ability of an eye witness to name or give a description of his or her strange attacker(s) to the police or toany other person soon after the occurrence of the incident is crucial in establishing the credibility of the witness. It is in that respect, in the case of Taiko Lengei v. The Republic (Criminal Appeal 131 of 2014) [2015] TZCA 288 (25 February 2015; TANZLII) citing the erstwhile East African Court of Appeal in Mohamed Alhui v. Rex (1942) 9 E.A.C.A. 72, the Court said: "In every case in which there is a question as to the identity o f the accused, the fact o f there having been a description given and the terms o f that description given are m atters o f the highest im portance o f which evidence ought always to be given: first o f all, o f course, by the persons who gave the description and purport to identify the accused, and then by the person or persons to whom the description was given." We have stated that the first appellate court doubted the identification of PW1. Therefore, in upholding the appellant's conviction and sentence, it relied on the identification of the physical appearance made by PW2 that the assaulter was tall, black and had beard and on the attire, he had put on that day. That, he wore a white shirt with black jeans. The first appellate court found that the descriptions given by PW2 were corroborated by the evidence of PW7 and PW8. Much as we agree with the first appellate court that the conditions were favourable and the identifying witnesses had ample time to observe their assaulter, we are of the firm view that such finding not only misapprehended the quality of the visual identification evidence, but also violated a firmly 19 entrenched principle of law. The purpose of giving prior description or to name the accused person at the earliest opportunity is to give credence and strengthen the trustworthiness of the identifying witness. In the present appeal, there is nothing to suggest the identifying witnesses, namely; the victims, PW7 and PW8, mentioned or gave prior description of their assaulter be it to the parents or school teachers to whom the incident was first reported. The only available evidence, the appellant was identified in court when the identifying witnesses were giving their evidence. We have no flicker of doubt that no value could be attached to such dock identification where the appellant was a total stranger to the identifying witnesses. It is settled law that the identification of an accused person by a witness in the dock for the first time cannot be given credence without corroborative evidence of identification parade. This is the position we stated in the case of Musa Elias & 2 Others v. The Republic, Criminal Appeal No. 172 of 1993 (unreported) when we said that: "It is a w ell-established rule that dock identification o f an accused person by a witness who is a stranger to the accused has value only where there has been an identification parade at which the witness successfully identified the 20 accused before the witness was called to give evidence at the tria l." Since PW1, PW2, PW3, PW7 and PW8 made dock identification their evidence is worthless and cannot be relied on to uphold the conviction of the appellant. Furthermore, with great respect, we do not agree with the first appellate court that the identification parade would not have added any value. The evidence on record shows that, after the appellant was arrested by the students, he was taken to PWlO's office whereby PW1, PW3, PW7 and PW8 were summoned and asked to identify the appellant who was in company with his friend at the headteacher's office. We find this kind of the identification parade not in accordance with the law. It will be a travesty of law for us to let this kind of identification parade to stand. The identification parades are governed by section 60 (1) of the CPA and they are conducted by an investigative officer during the investigation of the offence. Its purpose is to ascertain whether a witness can identify a person suspected of the commission of an offence. Therefore, the school teachers were required to submit the accused person to the police for their investigation, including the conduct of identification parade, if they found a need to do so. It would be highly unsafe for this Court to rely on the illegal parade conducted by 21 the teachers in sustaining the conviction and sentence of the appellant. Accordingly, we find merit in the fourth and fifth grounds of appeal. Next is the complaint that the appellant's defence was not considered by the two courts below. Mr. Mwita argued that the appellant's defence which was a total denial was considered by the two courts below but it was found that it failed to shake the prosecution case. He referred us to pages 91 and 127 of the record of appeal where the trial court and the first appellate court respectively discussed about the appellant's defence but ruled it out. We entirely agree with Mr. Mwita that the two courts below considered and determined the appellant's defence but we are of the considered view that had the two courts below carefully considered the totality of the prosecution and defence evidence, they would have noted that the identification of the appellant was not watertight. Flowing from the fourth, fifth and seventh grounds of appeal, we find that the offence of grave sexual abuse was not proved to the required standard against the appellant even though Mr. Mwita impressed on us to find that the prosecution proved its case against the appellant. We therefore find merit in respect of the eighth ground of appeal. 22 In the end, we partly allow the appeal and the result effect is that, we quash the conviction and set aside the sentence imposed upon the appellant and the compensation order for payment of TZS. lm to each victim. We further make an order of the immediate release of the appellant, Ibrahim Eston, from prison unless he is otherwise lawfully held. DATED at MBEYA this 4th day of July, 2024. B. M. A. SEHEL JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL The Judgement delivered this 5th day of July, 2024 in the presence of Appellant in person and Ms. Lilian Chagula, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the n rin in a l