20050221 TZCA Dar es Salaam 3

p IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: LUBUVA, IA., MUNUO, J.A., And NSEKELA, 1A.) CRIMINAL APPEAL NO. 29 OF 2000 BETWEEN RASHID SALIM KOMBO @ SELEMANI ......................... 1 ST APPELLANT -Died on 1711112004 MIKIDADI OMARI ALLY ........................................... 2 APPELLANT SAIDI ALLY AHMED ................................................. 3 R 9 APPELLANT AND THE REPUBLIC ..........................................................RESPONDEN-T (Appeal from the conviction and sentence of the High Court of Tanzania at Dar es Salaam) (Mshote, PRM. Extended Jurisdiction) dated the 16 I day of May, 2000 in Criminal Appeal No. 12 of 1999 JUDGMENT OF THE COURT MUNUO, J.A.: This is .a second appeal from IlaI.a District Court Criminal Case No. 569 of 1998 in which the appellants and three others were convicted of robbery with violence c/ss 285 and 286 of the Penal Code, Cap. 16 of the Revised Laws of Tanzania. They were sentenced to 15 years imprisonment. Aggrieved, the appellants unsuccessfully lodged Criminal Appeal No. 12 of 1999 before Mshote, Principal Resident Magistrate, Extended Jurisdiction as he then was. t)s ' 2 The first appeal having failed, the appellants instituted this second On the 16th May, 1998 at about 21.00 hours at Mtoni Area within Dar es Salaam City, PW1 Bakari Mohamed was approached by the first appellant Mikidadi Omari Ally, who wanted to hire the former's car to ferry a sick person to Kurasini. Because PW1 wanted to have his supper, he -asked PW2 Juma Rajabu-Zngo to dothe job which PW2 agreed to do. So PW2 drove the first appellant, Mikidadi Omari Ally in PW1's vehicle TZL5051 which belonged to one Bosco Peter Mwamlima, to Blue House to collect the patient PW2 was to transport to Kurasini. At the said Blue House, the first appellant identified the patient. At the trial the said patient was the late Rashid Salim Kombo. He passed away on the 17th November, 2004 per his death certificate No. A00127119 which shows that he died from- pulmonary failure due to pulmonary tuberculosis. Also at the material Blue House were the second appellant, Saidi Ally Ahmed and one Simon John Mboma, the third accused at the trial. These two also boarded the material vehicle at the Blue House. Mikidadi Oman Ally, the first appellant, sat in the front seat and he led PW2 to the Blue House where the second appellant Saidi Ally Ahmed and two L 3 other bt t1e of them feigning sickness got into the vehicle which then headed to Gate No. 5 at the Tanzania Harbours Authority at Kurasin:i. There, the late Rashid Salim Kombo pretended that he ãr1tèd to vomit so PW2 stopped the car to enable Rashid to disembark and vomit. It was then that the appellants tied PW2 with ropes, seized the ignition key, dumped PW2 into a drainage trench and sped off. A police patrol car under the charge of PW3 C.9420 Cpl Ibrahim was alerted by a suspecting youth so it promptly trailed the vehicle right to the Mbezi police road block where the appellants had been apprehended. As to how the appellants were arrested at the road barrier at Mbezi, PW4 C.09678 D/Sgt Joseph testified at the trial: "We received a radio call telling us that a vehicle had been rob.beftat Temeke and that the same would possibly be leading to Mbezi. A short while we saw a vehicle speedly coming to our place with full lights. We tried to stop it. It did not appear to respond. Then I fired the vehicle, the vehicle pulled to a halt. In the vehicle we managed to apprehend 1st and 2nd accused. It was a Toyota Corolla TZL5051. Soon our 999 car chasing the said vehicle arrived with the driver of TZ5051 ...." ri Subsequently the appellants were charged with the offence of robbery with violence. Both appellants appeared before us in person. Mr. Masaju, learned Senior State Attorney, represented the Respondent Republic. In their joint memorandum of appeal, the appeUants contended that their identification was not watertight so they ought to have been acquitted by the trial-court. They=furtherclaimedthat the trial court should also have found their defence of alibi probable so the conviction was wrongly grounded. Mr. Masaju, learned Senior State Attorney, supported the conviction and sentence. He contended that PW2, PW3 and PW4 properly identified the appellants who were caught red handed with the stolen vehicle so on the principle of recent possession the appellants are liable for the charge of robbery with violence. The issue before us is whether the identification of the appellants was watertight. Our answer to the above issue has to be in the affirmative. The learned appellate Principal Resident Magistrate, Extended Jurisdiction, considered the issue of identification and held: 5 "On the question of identification, it was alleged that PW2 .]uma Saidi was able to identify all the four appellants with the aid of electrical bulbs which were at Blue House when he picked the appellants except the first appellant who was already in the car .....It is also worthwhile to note the fact that PW1 Bakari and PW2 Juma must have been able to identify the first appellant at Kwa Azizi area wheivthefirst appellant negotiated with them to hire the car. From this evidence and bearing in mind the chain of authorities on visual identification, I have no doubt in mind that all possibilities of mistaken identity were in the circumstances of the case eliminated and like the trial magistrate, I am fully satisfied that the evidence tendered before the trial court was absolutely watertight ..... There is nothing on record upon which we could come to a different conclusion. One, the appellants were caught red handed with the stolen vehicle with the first appellant, Mikidadi Omari Ally, at the steering, as narrated by PW4 who shot at the vehicle thereby forcing it to stop at the police road barrier at Mbezi. Shortly after, PW2 arrived in the police patrol car which had been tracking the stolen vehicle. As the appellants were caught red handed with the n. stolen Toyota Corolla TZL5051 within minutes of the robbery, the doctrine of recent possession would properly apply. Second, PW1 and PW2 identified the first appellant, Mikidadi Omari Ally because he was the person who approached and negotiated the car hire. He then accompanied PW2 to the Blue House where the second appellant and two other bandits joined him pretending that they were takinga sick person, the lateRashid. Salim Kombo, purportedly to Kurasini. As a matter of fact, they were out to seize the vehicle which they did after tying PW2 with ropes and dumping him into a drainage trench at Kurasini. Fortunately a youth who spotted the bandits alerted the police patrol car which trailed the stolen vehicle right to the Mbezi road barrier where PW3 and PW2 ldentified the stolen vehicle and the appellants. In view of the above glaring evidence, the identification of the appellants was watertight. The defence of alibi was therefore rightly rejected by the courts below. For that reason, we accordingly dismiss the appeal. 7 DATED at DAR ES SALAAM this 21 s' day of February, 2005. D. Z. LUBUVA JUSTICE OF APPEAL JUSTICE OFAPPEAL H. R. NSEKELA JUSTICE OF APPEAL I certify that this is a true copy of the original. (S. AcBURA) SENIOR DEPUTY REGISTRAR