20030307 TZCA Dar es Salaam

IN TEE COtJPT OF APPEAL OF TANZANIA AT DAP ES SALAAM (CORAJi: CRtHINAL APPEAL NO. +2 OF 1996 BETWEEN HUSSEIN ALl DOTTOO APPELLANT AND TEE R1UBLICO. . . RD3PONDENT (Appeal from the décis ion of the High Court of Tanzania at Dar es Salaarn) dated the 10th July, 1998 in J U U G H B N T ci OSOJ.A; The appellant was one of five people who were prosecuted for robbery with violence in the District Court of Ilala, in Dar es Salaam, He and one of the other people were convicted as charged and were sentenced to fifteen yea±s imprisonment. He appealed unsuessfu1ly to the High Court hich enhanced the sentence to thirty years imprisonment. He has now appealed to this Court against both conviotion and the sentence, filing three grounds of appealD At the bearing of the aopeal he sought and obtained leave to advance two additional grounds of appeal. His first ground is the memorandum of appeal is that the two lower courts should not have relied on the evidence of identification which was given by the first and second prosecution witnesses because there was no prior detailed description by them of the robbers. He cited the case of Mohamed Allui. v0 P L19/ EACA 72 in support of his argument, , . I I -2- In his second ground of appeal he criticized the first appellate court for upholding the conviction on the basis of the evidence of the first and second prosecution witnesses as well as • the evidence of discovery of some of the stolen property when his house was searched without there having been a search order or a receipt for the property i.thich was found as a result of the search. In the third ground of appeal he challenges the legality of the sentence of thirty years imprisonment if a imife rather than. I fircarms or poisonous weapons was employed in the commission of the robbery. The two additional Erounds of appeal are that first, a 1üfe was tendered in evidence instead of a panga which was said to have been used in the course of the robbery. Second, that there was no evidence, such as a receipt, to prove that the bag which was found aftr a search in his house belonged to the complainant. It may be c onven lent to give a brief a usimary of the facts of the case which led to the conviction of the appellant. At about 8.30 hours on 30/1/95 one Welfoo, a maize trafier, was accompanied by one Haniisi Salum and both were walking to Manzese where Wolfoo. was to catch a bus to Morogoro. Welfob was also carrying a tra'veling bag in, which he had kept shillings 1,500 1 000 /= for buying maize in Dodoma Suddenly, he was attacked by two people who cut him cn the hands with a panga. Those people made away 'with the bag. The incident was also witnessed by Han -iisi Salurn. The robbers were Ioown to both Welfoo and Haniisi Salum. Allen Mushi, a resident of Manese, who had a shop near the scene of crime saw the appellant as he sped away. fr. *13 V V. 3 • . ' 1 A report of the robbery was made to the Polide at Manzese and a search t for the robbers was mounted. Nearly two and a half months later the appellant was arrested in a house in Temeke and a bag and a Iife were seized from the room. The bag was Identified by Wclfoo as the one which was rbbbed from b. The appellant was then - prosecuted convjetcd and sntenced to imprisonment. Aq mentioned earlier in thi..s judnent-tie appellant's appeal to the High Court • was dismissed and 'the sentcpce of iprisonrent was erih weed.. from V V V 15 years to 30 years. • We.wh th begin with the two additional giounds of appeal. • • W.e agree that although a Irnife was seized from the room' in which V the appellant' was arrested' 'and . it was tendred in evidence, it had no pr.bbatve value in the case • The complainant :in the ,case together V with Harnisi SalAm were, clear In their evidence that the robbers used ,panas during the robbery., '.t the fact that pañgas were not found V V in the Vroofll wharc :the, appellant wa rrested des not prove anything -either way. Fdr two and a half months there was ,ample time to V dispose of the pangas i 'appellant was the rcbber. .. We think there is merit In the secoid additional ground of appeal. There is no proof that the ba.g which was found in the room of the appellant really belonged to the comp1ainant. There is no evidence from the complainant' of the description f the bag'which 'was stolen. The complainant merely' said, without more, of the bag V which was taken from appellant s house "... th said traveling bag was foundin their roorn. - • ' V • •'.,• V - He-did not say how he was able to le-iow that the bag belonged to hi. Although Hainii Salurn(PW.2) and Allen Mushi (PW,3) who saw the robbers as they fled said the robbers carried a black bag with a red spot or pocket, there is no evidence tha the bag which was seized from the appcllants room answered that description. The first and second written grounds of appeal tan be dealt with together.. Tiey relate essentially, to, the identification of the robbers. Thc • appel].ant rightly sid that the prosecution evidence as recorded by the trial court does not indicate that the complainant • - Deogratias s/o Welfoo (Pw,i) or 'Hamisi Salui (PW.P-) or Allen Mushi ,.(PW.3) gave a description.of the fobbers. But the case of Mohamed Bin_Allulv.Bex 9 EACA 72 which wab citod.by the appellant tous is distinguishable on the facts. In that case witnosses purported to identify at an identification parade the appellant who was alleged to have committed various of.fcnces, incluiing robe17 eleven rnQnths earlier. It cias not.clear if the identifying withesses had given an earlier descriptiOn of the robbers. The Court of 'Appeal for Easteri Africa said in this connection:.-. . . . . I . • '. This Court has previously pointed out, and we wish to repeat, that in every case in • . . .- which. there is a question as to the identity - . of the accused, the fact of there having . .- been a' description given and the terms of that description - are matters of thehig1est - - - importance of which evidenc,ough aleys -. • - to be ven; first of-all 1 of course, by - - the person or persons who gave the, description and purport to identify, the /5 - - 5,-. accused, and then by the person or persons to whom the description was given,. That requirement js relevant in' the case of an accused person who was not known to the witnes.or witnesses who haveto identify hin on the basis of what they remember about his appearance at the later time the cre was, committed. But in the instant case the three prosecution witnesses saidthe appellant s'fainiliar to them as they used to see himplay g karata tatu at what they called the jobless corner. The question of identification therefore raises no doubt that the appe1lat was one of the culprits. .. As regards 'the .complint that the police were not in possession of a search warrant or a written authorization for the search 'and that no receipt was issued for the things which were seized at the time of the search, .ith respect,the appellant isright. Detective. ,Sergeant Said Mayomeni (Pw.k) who conducted the search in the house in which the appeJ.Jnt was arrested neither made mention of having been in possession of a search warrant or written authorization nor of haiing issued a receipt for the things he 'seiied: from the hoe asrequirdd under Section 38 of the Criminal Procedure' Act, 1985. • The search and seizure of the property in the house were therefore done irreguLarly. But that dot es not exonarate th,e appellant from the conviction which }e duly earned. The complainant suffered cut injuries on both hands inflicted by pangas. It is not correct' to say, as th appellant says, that armed robbery is committed onlywhere the offender ises a firearm or poisonous weapons. There is• apple authority that use of lthal weapons which include 1aiiv:s and pangas in the course of a robbery comes squarely wider the cefinition of armed robbery. In Michael Josep h 278 this Court held that use of a lcnife during robbery amounts to armed robbery for which the offender is liable to a sentence of thirty years impxsaziment. The High Court was Goct, thareiore when it enhanced the senten 4o thirty years impr.j&oinent. Since we haio been satisfied that the appellant wa& rightly convicted for the offence charged and that pangas were used and was rightly sentenced to thirty years imprisonrnontby the first appeflate ccurt, we can find no merit in tue, appeal against convictiom and CarLtWICO. We therefore., di&znise the appa1 entirety. DATRZ a±. .SALAAM this '7th day or March 2005, D.Z.LUBUVA JUSTICE OF APPEAL JA0 MROSO JUSTICE OF APPEAL MUNUO E.N. JUCTICE OF APPEAL I certify that this is a true copy of the original. e ( L.K. WAMBJ\LI ) DEPUTY_IEGIS1AR