benson kibaso nyankonda olembe patroba apiyo vs the republic 1991 tzca 26 14 june 1991

IN THE--COOKE--OF -APPEAL OF lAiEi-ITIA at : ; - . o ?3A ( COOjSIIt I-U3CAM3. J . A . , R / J L U X ^ U T I , J . A . . And HAPIOANO. As. J . A . ) CRBIHTAL APPEAL NO. 159 OF 1990 BEtTSOlT ICIBASO NYAMONM © OL0EBE PATBOM APH O . . . . . APPELLANT VESSUS TEE :iHPU3LIC. ...................................................... .............................. EBSP01JB2HT (Appeal from the o on v iction o f the High Court o f Tanzania at Kwanza) ( i&KlILE, J . ^ dated the 26th day o f O ctober, 1990 in Criminal Sessions Case No. 28 o f 1990 ■jinxa-rora? of tbs court MAPIG:JT0, Ag* J.A . i :ST30IT KHJA30 MY-MlKOlIDAj also known as 0LEMB3 PATSOBA APETO, has appealed from the judgment o f the High Court at Kwanza dated 26/ 10/90 in which the learned judge, Sekule, J «, con v icted him o f th e murder o f AHOLD STtAI and condemned hin to death. On hia "behalf Mr. ITasinire, learned advocate, f i l e d two grounds o f appeal "but dropped one in the course o f h is address b e fore ua. The ground argued pertain ed e x c lu s iv e ly to the proceedings that took p lace at an id e n t if ic a t io n parade h eld -a t the Mwanza Centrsl P * lic e S ta tio n on 3/ 8/ 880 Mr. Mapunda, learned sta te attorney, appeared f o r the respondent Republic and he v ig o r o u sly supported th e judgment o f th e High Court and urged the dism issal o f the appeal. AJT0LD SITAI died on o r about 1/ 9/85 most probably in tjie en viron s o f the Mwanza M u n icipa lity and h is was a planned brutal - 2 death.* The deceased. resided, at Nyamanoro in the M u n icipa lity and pOU~CC' he owned car which he operated as a cab. His base was at the liew Mwanza H otel where he was la s t seen a liv e on Sunday 1/ 9/85 in the aftern oon . He went m issing u n til 4/ 9/85 when h is corpse was d iscov ered at K isesa ly in g in a tren ch . His limbs were hound up and h is car was m issing and i s y o t to he recovered . I t i s an i r r e s i s t i b l e in feren ce that the deceased was robbed o f the car by bandits and that he diod at thoin hands in the course o f the robbery. I f the testim ony o f P.W.8 MUNGU- KUGTdTA I70UGU was :ru c5 as tho High Court b e lie v e d i t was, the ban d its drove o f f the c ? j to Kenya v ia liusona. The appellant was a suspoct in the crime. So was one D/JJDI UilHCILI MJNGU and ono G3XMJE OG'\ULO. He was tra ce d and a rre ste d at Bugando in the M u n icipa lity on 4 /5 /3 7 i . g, twenty months a ft o r the k i l l i n g o f the deceased, P.IT. 5 Inspector ILlDIILi. who e ffe c t e d h is a rrest said he had dono so upon a t ip from h is in fon nor, Mr, Masiciire who also defended the appellant at the t r i a l would have had m o iligh Court compel P .li. 5 to eapcae h is sou rce, but tho t r i a l judge refu sed to do so. B efore us Mr, ITasiuii'O t r ie d to fa u lt the ju d ge1s re fu sa l but ho l a t e r came round to concede that the in te r e s ts o f ju s t ic e demanded that tho id e n t it y o f such an inform er be p ro te cte d , Tho prosecu tion sta rted , m eth odically, by c a llin g fou r w itn esses who deposed, in te r c i l i a , to m atters did not form part o f tho su b ject tra n sa ction but which were relevant under s e c tio n s 9 2nd 10 o f tho Dvidcnco Jlct, 1967. Thoso witn-jssos were tho deceased’ s fo llo w ctSmen. Two o f then statod that thoy had been h ir e d by three su sp iciou s strangors and they doscribod tho fe a tu r e s o f thoso p e o p le , Ono, P.'S. 4 ELILOTA H’JTIEL KTIEKA, - 3 - r e la t e d how on 31/8/85 he took th oso strangers to K isesa and back to town, how thoy wanted bin to stop the car at a s o lit a r y v a llo y on tho way hade and how and why ho r e fu se d to sto p . Tho oth er, P .¥ .3 GAJ3HI3L S3^JjT£EL, claimed that 0110 o f th ose th roe peop le was in the cou rt, hut in a n tic ip a tio n or presentixaent o f an imponding fin g erin g at tho nan in the dock Mr. U asinirc ra ise d an o b je c tio n which ■ was su stain od "by the t r i a l judge. Tfith th at the case against tho appellant depended w holly on the corre ctn e ss o f h is i d e n t ific a t io n hy P .¥ .8, which the dofencc a lle g e d to he mistaken, P.TT.8 was a re sid e n t o f Busegwo in Musona D is t r ic t , and i f b e lio v e d h is evidence f u l ly t ie d the appollant t* tho murder o f the deceased. lie doposod to the suspoct DAUDI S^IUELI ITTMGU being h is r o la t io n , to tho sa id H'JIDI boing an experienced d riv e r and to boing a resid en t o f Mahatini in tho Hwcjiza M u n icip a lity . Ho r ls o deposed to DAUDI having passod at h is homo in Busegwo in the f i r s t weok o f Scptonhcr, 1985) at nidnight accompanied hy tho appellant; and another nan. He sta te d that tho three-cion cane in a car, and fro n h is d e s c rip tio n o f that car i t i s hoyond doubt that i t was the d ecea sed 's sto le n cab. He sta ted that the appellant and the othor non wore con plotc strangers to him and that tho two e;;changod words in tho Luo vern acular. Ho r e c a llo d that the appellan t was sp ortin g bushy side burns. He and h is neighbour JillES K3H1RI0 h eld a con versation -with them around a ta b lo in the glean o f a la n tern in the courso * f which a moal was served. He learned fron HIHDI that tho two stran gers had h ire d h ie to drive thon fron Mwanza to .../4 N a irob i. Ho said, they l o f t at 6 a0n . Tho appellant denied any involvement in the murdor o f tho deceased, as ho doniod each and evoxy a lle g a tio n o f P«Tf»8 that touched him. Ho lodged an a l i b i , a lb o it b ola tod ly , claim ing that ho was in Ukorowo, whore ho had liv e d with h is w ife f o r a number o f years, at the tin o tho murder was committed. He d oscrib od h im self as a businessman and a nan o f consequence in TJkorewo, hut wc cannot hut got tho im pression that ho was ono w ith an adamantine p u ffod j hut p re te n tio u s, sense o f h is own se lf* Ho m aintained th a4; in Ukorowo ho was a momhor o f tho D is tr ic t Dofonoo and S ocu rity Committoo* which story only the credulous and ill-in fo r m e d could huy;. lie "1'oldly t o ld the court that h is co llo a g u o s in th at com nittco could vouch f o r h is a l i b i t But ho addod that he saw no poin t to c a ll any o f than as witness, oven w hilo h is l i f e was palpably at stake. P.TT.S id e n t ifie d the appellant at tho id e n t ific a t io n parade on which the appellant stood sp ortin g "bushy sid o burns. His neighbour J.'J. J3 KUtiltlO was tho only oth er w itness c a lle d onto that parade, but u nfortunately he died b e fore he could te s tify . I t i s by no means c le a r why P .If.3 and P .If.4 wore noi c a llo d as w itnesses at the parade., The appellant admitted, that P.IT.8 id e n t if ie d him without a moment's h e s ita tio n , but ho contended that ju s t ic e was not done in tho id e n t ific a t io n p roceed in g s. Tho t r i a l .judge; and tho a ssessors wore s a t is f ie d th a t P.IT.8 had s u f f ic ie n t opportunity to id e n tify tho appellan t at Busogwc, considering the tin e he had th e appollant under ob servation at c lo s e distance under .../5 - 5 - a la n te rn illuoine.'tion* They wore also s a t is f ie d that the id e n t if ic a t io n parade was conducted properly* As nontionod ahovc, JAIC3S KELljSIO did not g iv e evidence. The lo a m o d t r i a l judge n everth eless sta ted , more than oncoj th at "th e id e n t if ic a t io n o f the acouscd try P .If.8 and JAIHS KKAillO at the parade as having ticon ono o f th roo poop le who passod at P „ 'r .8 's hone with a ta x i, /“i&r>00t U' >5°4, with t a x i sid e nunhor "100” was r o lia h lo and could in my view he s a fe ly a'ctod upon” , Tfe r o s p o c t fu lly agroo id t h Mr. M',simiro that in r e la t io n to JAIIES KKAEIQ the ju d g o 's fin d in g was unfortunate and c le a r ly orroncous.' I t i s needful t o undorscoro tho p o in t that i d e n t i f ic a t i o n rarado proceedings arc h a s ic c lly te s tin g o r in v e s tig a to r y and e r tro r-ju d icia l in naturo. The - outcone o f such a parado has "by i t s e l f no independent p ro b a tiv e valu e. At the highest i t can only corrohorato tho evidence given by the id e n tify in g w itnoss in court under s e c t io n 166 o f the Evidence Act, o r con tra d ict tho statcnonx o f tho w itness in court under s e c tio n 164 ( c ) o f that A c t." I f a w itnoss i s not c a lle d there i s thus nothing to corrohorato o r co n tra d ict and, a ccord in gly , thero i s no o cca sion fo r in trodu oin g the parade proceedings in to evidonco, l o t alono con siderin g then. £0 in r e la t io n to J,’i G S KIRA2I0 th o parade proceedings wore inadm issible and should not have hocn token in to aocount at a l l . We ere s a t is fie d however that the flaw was ju st a speck in an otherwise w ell-rea son ed judgment, .«./6 - 6 - As wo hcvo obsorvod at tho o u tse t, tho appoal i s w holly d ir o c tc d at the id e n t ific a t io n parado, that is , th o manner in which tho parade was conducted, and Mr. ITasiniro has p oin ted out a number o f shortcomings or c ir c m s t a n c o s which he sa id throw su sp icion on tho conduct o f tho p o l i c o and the memory o f P.W.8. Mr. ITasiniro a cco rd in g ly su tr.itto d th at tho i d e n t if ic a t io n o f tho app ollan t was not s a t is fa c t o r y and that the con v iction was unsafo, Tho p r o p rie ty o f tho parade was a lso urged fo r c e fu lly b o fo r o tho High Court and from the nature o f tho c r itic is m s which were raiu od wo pause to wondor why Mr, ITasiniro did not novo the c l i t to viow tho lo c u s . We have to keep in mind, howcsvor, that i t i s always o b lig a to ry on a court to su b je ct tho ovidcnco r e la t in g to such parados to c lo s o and ca ro fu l scru tin y . That parade, memorandum o r " r e g is t e r " o f which was tondorod as e x h ib it P .I , was composed o f ten persons in clu d in g tho suspoct i , o . the app olla n t. I t was conducted by P.H. 6 In sp ector AuUBHlI BLUJ3, and P.W.7 Corporal SEL’Ji/JT was inehargo o f the two w itnosses b e fo ro thoy woro c c ll o d onto tho parado, Pjt'f.8 was the f i r s t w itness to bo c a lle d and by a l l accounts the parado tras h old at the bad : o f tho Central P o lic o Station,, Tho fir;Tfc c r it ic is m made by Mr. ITasiniro was in re sp o ct o f th o nonoiy o f P .¥ .8. Mr. N asiniro wants us t o co n sid o r whothor an intervening p e rio d o f t h i r t y - f i v o nonths had not dianod tho nemory o f t h is w itnoss, and p r o p e r ly so . Indoed in our view tho mcnory o f tho - 7 - should. a lso Iso con sidorcd in r e la t io n to h is evidence "boforo th o High Court. In support Mr. B a sin iro r o fo r r o d to P.TT.S's admission th at ho had t o ld the p o l i c e that ho was not co rta in i f ho could i d o n t if jr the two strangers who. ccnc to h is hone with UlUDI. L oam cd oounsol had r a ise d the seme n a tte r in 3iis submissions in tho High Court, "but the judgo appears to havo accoptod P .’.T.G's explanation that ho was then " in fo a r o f p o lio o ” . T his i s what the judge statodj " I an awr.ro, the i d e n t if ic a t io n poi-ado was h o ld a ft o r a lon g t in e fron the tin o E.t-f.8 hosted thoso g u ests. But having staged with these guests f o r that lon g, and the unusual t in e they a rriv e d at h is hone i . e . very la to at night and the t a x i as w ell as tho prcscnco o f h is r e la t iv e ,. DAVID Su'JITIEL, I an o f tho con sidorcd opin ion that thoso fa c to r s nust have continued to f a c i l i t a t e th o ir r e c o llo c ^ io n o f th is event and thoso people i . e . tho accused and h is two co lle a g u e s. P .ff.O 's id e n t if ic a t io n o f the accused as w ell as that o f J7JES K. 322IC was th e re fo re not guoss work "but i t was ce rta in ."* Those words carry sono w eight, except to the o;rtont that they r e fe r r e d to J-JCES KE.'J1I0. Thoro i s no question that P. If. 8 was a w itness w ith a re te n tiv e no::.ory, ju s t as thoro was no q u estion about h is honost3''. His r e c a ll to d e ta ils was g e n e r a lly good and we think that i t was roasonahly opon t o tho t r i a l judgo to r o ly 011 h is nonory and id e n t ific a t io n . Tho socond criticisr.i tras in r e la tio n to tho c o n f li c t that ohtainod in the p ro se cu tio n case in regard to the p la ce whcro tho two id e n tify in g w itnesses were lo ca te d h eforo they woro c a lle d onto tho parade. P.If. 6 said i t was in tho o f f i c e o f the It.C.O. 5 P .17.8 sa id i t was ou tside that o f f i c e s whilo P .lf.7 sa id i t was in the EVauds O f fic e , Tho t r i a l judge p re fo rro d the tostin on y o f P.W.6 on t h is p o in t . Tho judgo was o f the opin ion that whilo . 0. / 8 _ 8 - P .¥.7 was not a l i a r i t was la k o ly that tin o hr/1 tdcon i t s t o l l on h is nonory and that h is r c o o ll o c t i o n was at f a u lt . But as aforen on tion cd , P.Tf.7 was tho o f f i o o r in ohsrgo o f tho tiro w itnossos b e fo re tho parado and ho a ctu a lly oscortod than to tho parade, and wo th o ro fo ro fin d sone d i f f i c u l t y in concurring in tho lo a m o d ju d g e 's p x 'fe r o n co o f P ./T .6 's tostin on y ovor that o f .P,W,7* However a ll tho throo w itnossos t o s t i f i o d th at th ere was a .roa d and a b u ild in g between that p laco and tho parado ground and em phatically denied tho suggestion th at tho id e n tify in g w itnossos could soo the parade fron whoro they woro p o s itio n e d , which was tho parcnount con sideration in tho n a tte r o f lo c a t io n o f tho witnesses,, Tho t h ir d c r i t i c i s e was about tho evidence o f P.¥ ;7 th at P .If.6 had h in ted to P.TL 3 that "th ere was a peraon who was suspoctod to have oon n ittod nurd or” onong the ton pooplo l in o d up. This was not in harmony '.rith tho ovidonco o f P.IT, 6, which the t r i a l judge aocoptod, nsnoly that a l l that -\ ho d id was to ask the w itnesses rto soo whether there wore any o f tho throe peop le in clu d in g ono DAUDI who passed at th o ir hono w ith a v e h ic lc and had sono fo o d ". The ovidonco o f P.W«8 was su b s ta n tia lly s i n i l r r . This i s wbat ho stated* "Tho o f f i o o r conducting tho parade t o ld ne th at I was to wcik along tho parado fron l o f t to r ig h t ; look in g at the people in the parade and i f I wore to ceo the pooplo ■who ccne at ny house I was to touch hiu ao the shoulder. He did not t o l l no ^hoso p oop lo woro in tho parade,. He t o ld no to lo o k and see whether they woro th ere*" , Tho w itness thon nado a b r i e f d e scrip tio n o f tho poop lo who woro paradod, • • • • /9 _ 9 - .Again wo think,, with re sp o ct, that tho t r i a l judge, who saw and. hoard, the w itnesses, w a e n titlo d to accept th o woiSi o f P.U.6* TIhat's noro, i t seons to us that even if wg woro to go "by P. IT. 7 ' s e l l eg at ion wc would say that P. 17*6 was t o l l i n g P .If.8 tho obviou s, 'because tho idea and s p o c tr x lo o f holding such a parado without a suspoct cono a cro ss to us as p o in tle s s and indood ahsurd, tfo would, th e r o fo s o , h old that tho h in t in question d id not occasion a f a i lu r e o f ju s t ic o . Tho fou rth and la s t c i t i c i s n was that tho nine non who woro lin e d up along with tho appollsilt woro markedly d iffe r e n t in appearance and ou tlook . This c r i t i c i s e was founded on the a p p e lla n t's a lle g a tio n th at ho was l i t e r a l l y set fo r an easy p ick in g as ho was tho only porson who was f i l t h y , d ish e v e lle d and wearing s id o hu m s. The appellan t thus attacks tho t r i a l ju d g e 's acceptanco o f the evidence o f P *'1.6 and P.IT.8 that tho n in e p oop lo were s in ile x t o tho appollant uin hoight and g e n e ra l appearance end con d ition ” , P.TI.6 sta ted that i t had taken him about f i f t o o n cin u to s to soarch f o r and got the nine p eop le. Mr* N & sioirc's in c r o d u lity was about tho tdoo fa c t o r . He argued that i t was h ig h ly u n lik e ly that P.IT.6 could have been able to get nine such pooplo in a n a tto r o f f i f t o o n n in u tos. ig a in that argunont Mr, Mapunda nado ro fc r o n co to the ovidonce o f P .¥.6 th at nrny people pass by tho p o lio o s ta tio n on th o ir way to and fron tho port;, and t h is cvidcnco was not contr& vortod, »•« » / i o In -tho evalu a tion o f the -tria l ju d ge P.TT.6 and P*TT«0 wore o b jG ctiv o , in prosoive and r e lia h lo w itn osses. Givon that con sid era tion , along with tho fa c t s that tho cross—oxaaination o f those inLtncsc^s in reg ci’ d t o t h is aspoct o f tho parade was alnost f l o o t in g , and that tho suggestion that tho appollant was d ir t y , d ish o v o llo d and. tlio only nan with sid o hums was not put at a l l to the two w itnesses, the judge d isn issod tho c r it ic is m . Wo havo givon the n a tte r a ca refu l and se rio u s con sid era tion and in p r in c ip le we soo no good reason f o r d iffe r in g with tho lo a m e d judge. This appoal th o ro fo ro f a l l s and i s d isn issod , KiTM) at MtiflUZft t h is 14th day o f Juno, 1991* ' L . M . m JU M E JU S T IC E O F A. S. L . 2^ L X ^ I . JU S T IC E O F / J P E A l . d . P . Iu 'J p ig ;jio A g . J U 3T I C 3 O F A P P E £ L . -1 , c o r t i f y that th is, i s a , tru e copy o f .the o r ig in a l. . ■. " ' r r,a r . v +:'