20040518 TZCA Dodoma

{CORAM: SAMATTA, C.J., LUBUVA, J.A., And MUNUO, J.A) . CRIMINAL APPEAL NO. 63 OF 2003 BETWEEN JOHN NICOLAUS! & 2 OTHERS .............................. APPELLANTS AND THE REPUBLIC ...........•........................................ RESP.ONDENT {Appeal from the Decision of the High Court of Tanzania at Dodoma) {Kaji, J.) dated the 23 rd day of December, 2002 in Criminal Appeal No. 15 of 2001 JUDGEMENT OF THE COURT LUBUVA, J.A.: · In the District Court of Iramba District at Kiomboi, the ·appellants were charged with and convicted of the offence of robbery with violence contrary to sections 285 and 286 of the Penal Code. They were sentenced to a term of thirty years imprisonment. In addition, the appellants were ordered to pay shillings 122,000/- compensation for the money and clothing items which were stolen in the course of the robbery. The appellants were also ordered to pay u _2 shillings 100,000/- each as compensation to the victims _(PWl and PW3) for the injuries sustained. Briefly stated the background giving rise to the case may be stated as follows. The complainant, Daniel Magombe (PWl) together with his wife, Wansingilila Zakaria (PW3) lived in the village of Kitana in Iramba District. At the village, within the same homestead, there were also houses of PWl and Christopther Daniel (PW2), his grand son. On 12.4.2000, at about 7.00 p.m., the houses of Daniel Magombe (PWl) and Christopher Daniel (PW2) were raided by a group of thieves.· It was a bright moon lit night with a wick lamp burning at the house of PW2. While PW2 was in the sitting room of the house of one Jackosn together with Dickson Daniel (PW6), another grandson of Pwl and other youths, the thieves stormed into the house demanding money from PWl. _When Pw2 replie9 that he had no money, he was roughed up and beaten using the side of a panga. It was alleged that, the first appellant, John Nicolaus who was among the robbers, attacked PW2. · After the attack, PW2 ran out of the house of Dickson Daniel._ . 3 · ·The· gang of robbers then stormed into the house of PWl who. . . ' . . . was resting on a bed at the sitting room. The ·rest of the family members including his wife (PW3), his grandson Elisante Magombe (PW4) and Nakamia Edward (PWS) among others, were taking supper. There was light in the room from a wick lamp (Koroboi) which was lighted. Two robbers, who were identified as the second appellant, Moris Mkumbo, and the third appellant, Juma Edward, entered the room armed with pangas. While demanding for money, the second appellant cut PWl with a panga on the head and · shoulder. PWl was dragged out of the house unconscious. PW3, the wife of PWl, was also brutally attached, she lost consciousness and was also dragged to the cattle kraal within the compound; The bandits ransacked the house, took money amounting to shillings 1 350,000/-. belonging to PWl and PW3 s clothing material, and disappeared. · An alarm was raised, to which among others, the Village Executive Officer, Mbaraka Hassan Mpanda (PW7) and. the Chairman of the Village, Abdallah Chuma (PW9) responded. A searching party was organized leading to the arrest of the appellants who were 4 · charged with the offences of robbery with violence and causing grievous harm. They were convicted of the offence of robbery with violence and as indicated, were sentenced to thirty years imprisonment. They were acquitted on the count of causing grievous harm. In convicting the appellants, the trial District Court, believed the evidence of the prosecution witnesses, including the victims .of the assault, PWl, PW3 and PWS as truthful. Unsuccessfully, they appealed to the High Court, (Kaji, J., as he then was) and hence this appeal has been instituted. In this appeal, the appellants were unrepresented while the respondent Republic, was represented by Mr. Mwampoma, learned . Senior State Attorney. The appellants had initially filed. lengthy. memoranda of appeal which were supplemented by additional grounds of appeal. From these grounds of appeal, the central issue is the ~ificatiori')f the appellants. This· is particularly so as the incident. took place at night. It is claimed that at the time of the incident, the condition_ was not favourable for proper identification. 5 Apparently, relying on the decision of this Court in Waziri Amani v . . : . ' ' . ·.. . Republic (1980) TLR 250; it is the appellants' contention that the conditions laid down in this case were not fulfilled, it was therefore unsafe to sustain conviction based on such evidence on identification. For instance, it is further stated, because there was commotion and violence against the victims, the essential witnesses, and the poor light at the time, the possibility of mistaken identity could not be ruled out.' Furthermore, it is also the appellants' complaint that the witnesses for the prosecution were unreliable because, there was a delay in reporting to the authorities that it was the appellants who were involved. Mr. Mwampoma, learned Senior State Attorney, firmly maintained that the conviction was properly founded. First, he said the question of mistaken identity in this case does not aris~. There was bright moon light and a wick lamp (koroboi) which was lighted when the thieves broke in, the State Attorney further submitted.· In that situation, he went on in his submission, Daniel Magombe (PWl) was able to identify the first appellant, John Nicolaus .. It is also on · .record that Dickson s/o Daniel (PW6), t~e son of PWl, also identified 6 the first appellant during the incident and that PW6 mentioned to the Village Executive. Officer, Mbaraka Hassani Mpanda (PW7) that he had identified the first appellant among the bandits . : . Secondly, the first appellant was not a stranger to PWl, they knew each other before the· incident. For this reason, it was not difficult for the first appellant to be identified by PWl, the State Attorney urged. With regard to the second appellant, Moris Mkumbo, the State Attorney said that under similar circumstances, he was identified by prosecution witnesses PWl, PW3, PW4 and PWS. These witnesses were found by the trial court as truthful and credible. In the case of the third appellant, Juma Edward, it was the submission of the learned Senior State Attorney that he was also reliably identified by PW3 and PW4. · Furthermore, Mr. Mwampoma also submitted that· there is no rational basis upon which this Court on second appeal can interfere with the evidence of this witnesses who, the trial court and the first appellate High Court . found to be. credible. The learned Senior State Attorney also dealt with the appellant's complaint that because PWl and the other .witnesses did . 7 • not report the matter soon to the village authorities or the police, . · they were· not truthful witnesses. As already observed, the central and indeed the only issue for the determination of this appeal is whether the ap_pellants were +- E!:Q_Qedy and correctly _identified. From the evidence on record, we agree with Mr. Mwampoma, learned Senior State Attorney that the first appellant, John Nicolaus, was sufficiently identified by PWl and PW6. Likewise, we agree with the learned Senior State Attorney that the second appellant, Moris Mkumbo, was also satisfactorily identified by PWl, Pw3, PW4 and PWS. Furthermore, PW3 and PW4 also testified that they identified the third appellant, Juma Edward. With the ai~ of brig_ht moon light a!_ the time of the incident and th~ light - from a lighted wick lamp in the house of the complainant, Daniel - Magombe (PWl), the trial court and the first appellate Hi_gh Court were satisfied that these witnesses properly identified the appellants. On the credibility of the witnesses, we are unable to find any cogent reason for faulting the finding of fact by the trial court. This, after - all, is a second appeal, the Court, unlike the trial court has not had 8 .. . . . -:ft· the advantage of hearing, seeing and assessing the demeanor of the witnesses._ What is more, · as regards the first appeliant, PWl is riot a stranger to the appellant. In the circumstances, it is our view that the risk of mistaken identity as regards the first appellant is minimised. In connection with evidence on identification by persons - - ~ ~ ~ - - who are not strangers to the accused . person, Mrs Sumari had -- -- - - referred to the decision of this Court in EVA SALINGO, MT. 622242 PTE PETER MAGOTI AND MT. 62218 PASCAL MGAWE v. REPUBLIC (1995] TLR 220. In that case, the appellant who was charged with the offence of murder had -challenged that the identifying witness was untruthful. The Court among others, held that the circumstances at the time were favourable for unmistaken identification because there was plausible evidence that the . ·,:, ~ appellants were not strangers to the identifying witness. In similar vein, in this case, we are of the settled view that the first appellant was properly identified. 9 · Similarily, we agree with the learned judge on first appeal that there is no merit· in the complaint raised by· the second and third .appellants regarding. their identification as well. The case of WAZIRI AMANI v. REPUBLIC (1980) TLR 250 cited by the appellants in their memoranda of appeal, is not in our view of any ·assistance to them. In this case, the Court was emphatic that visual identification evidence is of the weakest kind of evidence, no court 'K \ should .- - ----- ---- ..___---- ------ act on it unles_§__all possibilities of mistaken identity are --- -~- ~ - eliminated. In the instant case, once the evidence of the prosecution . witnesses PWl, PW2, PyV3, PW4, PWS and PW6 was found and accepted as credible by the trial court, we think there was proper foundation on which to ground the conviction. In addition, having regard to the fact that there was bright moon light and a lit wick lamp, we are also satisfied that the conditions at ·the time were favourable for unmistakable identification of all the appellants., Finally, we wish to deal briefly with the complaint that PWl was an unreliable witness because there was delay in reporting or mentioning the appellants to the authorities as the bandits. We find no merit in· this complaint. The record is clear that PWl was · unconscious after the injuries he sustained during the incident. He was hospitalized. Soon after recovery of his consciousness, the evidence also shows that PW1 reported to the police local authorities that the appellants were among the bandits. There is therefore no substance in this ground. All in all therefore, we are satisfied that the appellants were conclusively identified as having been participants in the robbery. Therefore we find no merit in the appeal, it accordingly dismissed in its entirety. DATED at DODOMA this 18th day of May, 2004. B.A. SAMATTA CHIEF JUSTICE D.Z. LUBUVA JUSTICE OF APPEAL E. N. MUNUO JUSTICE OF APPEAL (S.A.N. WAMBURA) SENIOR DEPUTY REGISTRAR