HASSANI RAMADHANI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 23780 OF 2024 (Arising from Criminal Case No. 55/2023 Kite to District Court) HASSANI RAMADHANI............................... Ist APPELLANT MASHAKA MAUNGANYA............................. 2nd APPELLANT VERSUS THE REPUBLIC............................................................ RESPONDENT JUDGMENT 7th and 12th November, 2024 MWIHAMBI, J.: This is an appeal that arose from the judgment of Republic v. Hassan Ramadhan and Mashaka Omary, Criminal Case No. 54 of 2023 in the District Court of Kiteto at Kibaya. In this case the 1st and 2nd appellant, were jointly charged with two offences, that is armed robbery c/s section 287A of Penal Code [Cap. 16 R.E. 2022] and severally charged with two offences of being in unlawful possession of property suspected to have been stolen or unlawfully acquired c/s 312 (1) of the Penal Code [Cap. 16 R.E. 2022]. Briefly the background of the appeal is that, in the first count of armed robbery for both of them, it was alleged that on 15th July, 2023 at Neema Street Kaloleni village within Kiteto District in Manyara Region the accused i persons stole various properties of MZ 2782 CPL Mussa Ngasa all worth TShs. 351,000/- and immediately before such stealing they assaulted him on different parts of his body by using sharp objects in order to obtain the said properties. That, on 15th July, 2023 at Neema Street Kaloleni village within Kiteto District in Manyara Region the accused persons stole cash money TShs. 1,420,000/- from Erick Raphael and immediately before such stealing they assaulted him on different parts of his body by using sharp objects in order to obtain the said money. In the second count of being in unlawful possession of property suspected to have been stolen or unlawfully acquired, it is alleged that on 16th July, 2023 the 1st accused person was unlawfully found in possession of various properties suspected to be stolen from MZ 2782 CPL Mussa Ngasa, and on 17th July, 2023 the 2nd accused person was unlawfully found in possession of various properties suspected to be stolen from MZ 2782 CPL Mussa Ngasa. The accused persons were found guilty and were convicted and subsequently both were sentenced to serve thirty years imprisonment for both offences. Aggrieved with entire decision they have appealed to this Court. On 9th August, 2024 the appellants filed a memorandum of appeal 2 containing six grounds (in their own words) as follows: One, that, the trial court wholly erred in law and fact without taking into considerations that the evidence ofprosecutions through Pwl, Pw2 and Pw3 who collectively regarded as eye witnesses are very contradictory and inconsistencies especially the time when the offence has committed Pwl said it was around 1000 while Pw2 and Pw3 it was a night. Two, that, the learned magistrate erred in law and in fact through his reliance on hearsay evidence which adduce by prosecutions through Pwl up Pw9 which hence unwanted convictions of appellants. Three, that the learned trial magistrate grossly erred in law and fact in exercising his discretion harshly rather than judiciously which held the appellants liable without water tight evidence to do so. Four, that the trial magistrate erred in law and fact by convicted the appellants while the cautions statement acquired through torture, threat and other un human actions. Five, that, the trial magistrate erred in law and fact by admitted improper certificate of seizure and broken chains of custodian to be exhibits and held the appellants liable of the offence by prosecution. Six, that, the matter of having the witnesses to the bar was to prove the case and not to narrate the story therefore the whole evidence adduce by prosecutions was just narrations of the story and had not tangible at all in criminal matters as standard required by the law. 3 In addition, on 24th October, 2024 the appellants filed a supplementary memorandum containing 5 grounds as follows (in their own words/' One, that the learned trial magistrate erred both in law and facts by convicting the appellants following the fact that the trial magistrate failed to evaluate the evidence on record at its depth hence wrongful conviction of the appellants. Two, that the learned trial magistrate erred both in law and facts by convicting the appellants by failing to notice that the evidential burden was shifted to the appellants that they had to prove their innocence rather than prosecution side to build strong evidence against the accused to prove their allegation, which is against the rule of law. Three, that the trial magistrate erred both in law and facts by convicting the appellants following the facts that the prosecution side failed to prove their case beyond reasonable doubt to the required standard of the law. Four, that the learned trial magistrate erred both in law and facts by convicting the appellants by failure to group the fact that their whole evidence adduced by the prosecution was witness was incoherent, inconsistent and contradictory. Five, that the trial magistrate grossly erred both in law and facts by convicting the appellants on illegal judgment that is to say the case number ofjudgment is different from original case. 4 In the hearing the appellants appeared in person, unrepresented, while the respondent (Republic) was represented by learned State Attorneys Ms. Grace Christopher and Ms. Mwanaidi Chuma. The appellants had nothing more to say in respect of the grounds of the appeal they filed. They requested the Court to allow their appeal. The learned Senior State Attorney, Ms. Grace Christopher, supported the appeal on the basis that the prosecution case was not proved beyond reasonable doubt as it is said in appeal ground no. 3 and 6. That the offence was not proved, as essential ingredients of the rules of identification as elaborated in the case of Waziri Amani v. Republic (1980) TLR 280 were not regarded. She also supported the appeal on the ground there were procedural irregularities in admitting exhibits as exhibits were tendered and admitted without being first identified. The learned State Attorney summed up her submission that for these weaknesses in evidence and for the purposes of justice the respondent side also prays that this appeal be allowed and the appellants set free. After this submission which were in their favor, the appellants had no rejoinder. I agree with the learned State Attorney that the main issue in this appeal is the identification of the appellants, as the offence was committed at night. There is no clear evidence of identification of the appellants other 5 than general statements by the identifying witnesses which do not eliminate the possibility of the witnesses mistaking the appellants. Mwakasendo, J. A. (as he then was) in the case of Waziri Amani v. Republic (supra) emphasised that evidence of visual identification, as Courts in East Africa and England have warned in a number of cases, is of the weakest kind and most unreliable. It follows therefore, that no court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight. This was also discussed at length in R. v. Erla Sebwato (1960) E. A. 174, Lejzor Teper v. The Queen (1952) A.C. 480, Abdalla Bln Wendo and Another v. R. (1953) 20 E.A.C.A. 166, R. v. Kabogo wa Nagungu (1948) 23 K.L.R. (1) 50 and Mugo v. R. (1966) E.A. 124 (K). Consequently, I allow the appeal of the appellants, quash their conviction and set aside the sentence. The Appellants are to be released from prison unless held orf a lawful cause N.J. MWIHAMBI JUDGE 12.11.2024 6 Court: Judgment delivered today in the presence of the appellants and Ms Mwanaidi Chuma, State Attorney for the respondent. B/C Ms. Fatina Haymale (RMA) present. N.J. MWIHAMBI JUDGE 12.11.2024 7