20050715 TZCA Arusha1

IN THE COURT OF APPEAL OF TANZANIA ATARUSHA {CORAM: RAMADHANI. l.A., NSEKELA, J.A. And MSOFFE, J.A.) CRIMINAL APPEAL NO. 31 OF 2003 BETWEEN ZUBELL OPESHUTU •••••••••.••••••••••••••••••••••••••••••••••••••••••••••• APPELLANT VERSUS THE REPUBLIC ••••••••••.••••••••••••••••••••••.••..•••••••••••••••••••••• RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Moshi) (Munuo, l.) dated the 2nd day of December, 1997 in Criminal Appeal No. 43 of 1997 JUDGMENT OF THE COURT NSEKELA, J.A.: The appellant was convicted by the District Court of Mwanga at Mwanga of robbery with violence contrary to sections 285 and 286 of the Penal Code, Cap 16 and was sentenced to fifteen (15) years imprisonment. 'fhe charge against him in the District Court was that he stole twenty two (22) head of cattle valued at Shs. 452,000/- the property of PW1, one Yuda s/o Mdara and in doing so used violence against PW1 in order to steal the said head of cattle involved. The violence alleged was the tying-up of PW1 to a tree for about five I. I ' j 2 hours and forcing him to sit on a knife. The appellant's appeal to the High Court against conviction and sentence was dismissed, hence this appeal. At the hearing of the appeal, the appellant appeared in person, unrepresented. The respondent Republic had the services of Mrs. Mary S. Lyimo, learned Principal State Attorney. The appellant adopted the grounds of appeal as contained in the memorandum of appeal and had little to add by way of elaboration. He denied that he was identified at the scene of crime as alleged by the prosecution. As regards the cow he was found with at Makanya, the appellant stressed that he bought it at the auction including other cows he was found with. On her part, the learned Principal State Attorney, briefly submitted that the appellant was one of the five bandits who attacked PWl while gr~zing his cattle. These bandits then tied PWl to a tree. Two of them, including the appellant, remained behind guarding him from 3:00pm to 8:00pm. The rest drove the cattle 3 away to an unknown destination. A search team from the village rescued PWl, abandoned in the bush, around midnight. She added that the search for the stolen cattle continued on the following days and on the 20.9.1995, PWl, while on a search mission with other villagers at Makanya, spotted the appellant at an auction with one of the cows PWl was able to identify as his own. On this evidence, the learned Principal State Attorney, was of the view that the appellant was one of the bandits involved in the robbery on the 16.9.1995. We do not entertain any doubts whatsoever that the only evidence of visual identification of the appellant at the scene of crime · was that of PWl, the complainant. The appellant in his appeal to the High Court and again in this Court has strenuously contended that the prosecution evidence of identification was unreliable and uncorroborated. We would like to point out at this juncture that very rarely does a higher appellate court interfere with concurrent findings of fact by the courts below. The fundamental issue before the District Court and the High Court was whether, on the evidence, the appellant had been identified as being among the bandits who had . 4 attacked PW1, tied him to a tree and stole his cattle. Dealing with the question of identification by a single witness, the defunct Eastern Africa Court of Appeal had this to say in Abdulla Wendo and another v R (1953) 20 EACA 166 at page 168 - "Subject to certain well-known exceptions, it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identifications, especially when it is known that the conditions favouring a correct identification were lacking. In such circumstances what is needed is other evidence, whether it be circumstantial, or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely 5 be accepted as free from the possibility of error," The important thing to note is that the court must be satisfied that in all circumstances of the case it is safe to convict on evidence of a single witness. The learned judge on first appeal was very much alive to this. In the course of her judgment, she had this to say - "Even if the court were to completely exclude the identification evidence of the 9 brand mark and white colour of the cow, the evidence of the complainant identifying the appellant who pointed to his chest with the gun he was armed with at the time of the robbery in broad daylight at 3:00pm at the grazing ground, and then the process of the appellant tying the victim to a tree and guarding him with a gun for a total of five hours strongly supports the conviction and 6 sentence. As Mr. Mwaimu, learned State Attorney submitted in support of the conviction, the robbery was committed in broad daylight when visibility and conditions of identification were favourable so the complainant had no difficulty identifying the appellant at the auction with one of the stolen cattle four days later. The complainant's ordeal for five hours thereat being guarded by the appellant who had a gun was more than sufficient opportunity for the complainant to identify the appellant." We are in entire agreement with these findings of fact. Evidence of visual identification should only be relied upon when all possibilities of mistaken identity are eliminated and the court is satisfied that the evidence before it is absolutely watertight. The principles to be taken into consideration were succinctly enunciated by this Court in Waziri Amani v Republic (1980) TLR 250 at page 7 252. We are fully satisfied that the evidence of identification of the appellant was absolutely watertight. There is therefore no merit in this ground of complaint. The only point of law involved in this second appeal is whether or not the evidence adduced during the trial of the appellant established the ingredients or elements of robbery. The offence of robbery is defined in section 285 of the Penal Code, Cap. 16 which provides - "285. Any person who steals anything, and, at or immediately before or immediately. after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed "robbery"." 8 4 The prosecution has to adduce evidence to establish the essential ingredients of the offence, that is, whether actual violence or threat of actual violence was used to obtain or retain the thing , stolen. The nature of the violence must also be proved. A pre- 1 requisite for the crime of robbery is that there should be violence to the person of the complainant. There must be evidence to establish that the appellant used or threatened to use any actual violence to obtain or retain the stolen property. ;i The word "violence" has not been defined in the Penal Code, Cap. 16 and so we have sought some guidance from Black's Law Dictionary (abridged sixth edition) at page 1085 wherein it is defined as - "Unjust or unwarranted exercise of force, usually with the accompaniment of vehemence, outrage or fury. Physical force unlawfully exercised; abuse of force; that force which is employed against common right, against the laws, and against public 9 liberty. The exertion of any physical force so as to injure, damage or abuse." According to the complainant (PWl) on the 16.9.1995 he was grazing his forty (40) head of cattle in the bush at around 3:00 pm. was attacked by five (5) bandits including the appellant some of whom had simes and also a gun. PWl was forcibly tied to a tree and kept under guard by the appellant and another bandit while the rest drove away the cattle. At about midnight, a search team from · the village including PW3 Rajabu Mbaruku and PW4 Haji Ally, rescued him. On this evidence, there is no thread of doubt that the appellant and fellow bandits used actual violence in order to steal the complainant's head of cattle and to overcome any resistance to such property being stolen. The head of cattle disappeared with the bandits and this constituted an act of theft. This ground of complaint is totally without merit. We now come to the incident that was unfolding at Makanya Village on the 20.9.1995. It w_ill be recalled that after the robbery on 10 the 16.9.1995, the villagers mounted search groups in an attempt to find the stolen cows. One such group, including PWl went to an auction at Makanya Village. While at the auction PWl recognized the appellant who had six cows including one of his own which he identified by its white colour and a mark "9" on the left thigh. PWl reported to PWS, C 4831 Cpl. Henry who was at the auction. The appellant's explanation was that he had bought the cow and others from the first accused who had been acquitted at the trial. Thus four days after the robbery, the appellant was found in possession of one of the stolen cows. The issue at hand is whether or not the appellant was responsible for the robbery that took place on the 16.9.1995. We are of the settled view that this is a case in which we can invoke the doctrine of recent possession. In the case of Rex v Bakari s/o Abdalla (1949) 16 EACA 84, a decision of the defunct Court of Appeal for East Africa, the head-note reads - "That cases often arise in which possession by an accused person of property proved to have been very recently stolen has been held not 11 only to support a presumption of burglary or of breaking and entering but of murder as well, and if all the circumstances of a case point to no other reasonable conclusion the presumption can extend to any charge however penal" ( emphasis supplied). (See also: (CAT) Criminal Appeal No. 134 of 1999, Paul Bundala & Julius Sunzula v Republic (unreported). In the instant case, the theft of the cows was linked to the robbery which happened on the 16.9.1995. PW1 identified the appellant as one of the bandits under circumstances explained earlier on. Again, while searching for the stolen cows, PW1 identified the appellant at the auction at Makanya Village in possession of one of his stolen cows. On these facts, we think the conviction was merited on the basis of the doctrine of recent possession. t 12 • Now we come to the question of sentence. The appellant was convicted of robbery with violence and sentenced to fifteen (15) years imprisonment. The offence was committed on the 16.9.1995 after the Written Laws (Miscellaneous Amendments) Act No. 6 of 1994 had come into force on the 18.3.1994. Section S(b) of the Minimum Sentences Act, 1972 as amended by Act No. 10 of 1989 and Act No. 6 of 1994 reads as under: "(b) Subject to subparagraph (ii) of this paragraph - (i) any person who is convicted of robbery shall be sentenced to imprisonment for a term of not less than fifteen years; (ii) if the offender is armed with any dangerous or offensive weapon or instrument or is in company with one or more persons, or if at or immediately before or immediately after the time of the 13 . robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to imprisonment for a term of not less than thirty years." As stated above, Act No. 6 of 1994 came into effect on the 18.3.1994. It applies to all robberies in which the offender is armed with a dangerous weapon or instrument, is in company with one or more person or where in the course of committing the robbery, the offender wounds, beats, strikes or uses any other personal violence to any person. (See: (CAT) Criminal Appeal No. 49 of 1996 between Mwita s/o Sibora v Republic (unreported). The appellant committed the offence on the 16.9.1995 when Act No. 6 of 1994 was operational. The evidence · clearly shows that there was use of personal violence to the complainant (PWl ). He was tied to a tree for about five hours and had been ordered to sit on a knife. Under these circumstances, the appropriate sentence was thirty (30) years imprisonment. • 14 In the result, we uphold the conviction for robbery with violence, but set aside the sentence of fifteen ( 15) years imprisonment. We substitute therefor the statutory minimum sentence of thirty (30) years imprisonment. DATED at ARUSHA this 15th day of July, 2005. A.S. RAMADHANI JUSTICE OF APPEAL H. R. NS EKE LA JUSTICE OF APPEAL J.H. MSOFFE JUSTICE OF APPEAL I certify that this is a true copy of the original.