ogawa butunga others vs republic 2005 tzhc 302 6 may 2005

IN THE HIGH COURT OF TANZANIA AT MUSOMA APPELLATE JURISDICTION MWANZA HIGH COURT CRIMINAL APPEAL NO. 329 OF 2004 (C/FS) Cr. App. No. 327 & 328 of 2004 (Original Cr. Case No\68 o f2004 of the District Cou/t of Tarime at Tarime. Before: A.L.M. MALLYA Senior District Magistrate) 1. OGAWA s/o BUTUNGA 2. JORAM s/o ZAKAYO OKEJO 3. JAMES s/o ELIKANA MAGORI VERSUS THE UNITED REPUBLIC RESPONDENT JUDGEMENT R.M. RWEYEMAMU, JUDGE: This decision regards three consolidated appeals number, 327/04 of Joram s/o Zakayo Okejo (2nd accused at the trial), 328/04 of James s/o Elikana (3rd accused) and 329/04 - Ogawa s/o Butunga (1st accused). For easy of reference, they are herein after referred to as 1st to 3rd appellant corresponding to their appearances in the trial court, or as OgaWa, Joram and James. The three were in Tarime Cr. Case No.168 of 2004 arraigned on a charge with three counts. The first and third count; were of Armed Robbery c/s 285 and 286 of the Penal Code. They are alleged to have!all three jointly and together on 23 -3-2004, robbed tyvo different homes of Pw1 - Magania Thomas and Pw2 Rajab Ndonyi within a short period of each other, the same night. On the facts on record Pw1 and Pw2 were neighbours. The 2nd count was against Joram and james, who were charged of jointly and together being in unlawful possession of goods suspected to have been stolen c/s 312 (1) (c). They were acquitted on this count. The goods referred to in the 2nd count were, some found in Joram's house and some in James? The goods in the latter's house were identified by Pw2 to be his. On trial, he had no receits to prove that fact with certainty thus their acquittal on that count. I hasten to observe here that; probably had they been convicted, the charge would have been found to be defective as result of the misjoinder of Joram and James in that count. They were acquitted so I find it unnecessary to belabour the issue !at this point. ** The appellants were all convicted on the 1st and 3rd counted and each sentenced to thirty (30) years imprisonment. The trial court further gave 4 orders, two of which are relevant. i "3) Each accused to compensate to Pv\/ and P vf the value o f the un recovered stolen properties in equal shares, i.e. each accused to compensate to PW the value of the un recovered properties less the recovered radio cassette and one battery recovered, and to compensate to Pv\? the value o f all the unrecovered properties or distress in default on each o f the three. 4) Each accused to compensate to Pw1 Shs. 500,000/= for the injuries suffered, together with refunding to him the hospital charges in equal shares or distress in default." •* The appellants submitted separate memorandum of Appeals whose substance were similar. The 1st Ogawa impijgned the evidence of identification, trial court's reliance on the evidence of Pw1 and Pw3 despite contradictions in them and concluded that on the evidence, the case against him was not proved. Ground one and three are similar to those of Joram and James, but the two also criticized court's reliance on the doctrine of recent: possession in the absence of proof of possession.. Their grounds were further articulated on by their counsel at the hearing of the appeal. The Republic/Respondent was represented by Mr. Mwenempazi S/Attorney while the appellants were jointly represented by Mr. Outa Advocate. The prosecution and defense case at the trial was that on 23/3/2004 about 1.00 am at night Pw^s house at Busurwa @ Nyagambe village, Tarime was broken into by armed bandits. They were armed with machete and a gun. They stole a number of items and injured him badly in the process - and he was taken to a local hospital and later to Bugando referral hospital. The same night, about 1.40 or shortly after, some bandits went to Pw2's house which is near that of Pw Vand stole a number of jitems while he was watching them from the ceiling where he hid. Immediately thereafter an alarm was raised at both compounds. 1 The alarm awoke among other villagers Pw3 the Nyangombe i village chairman. He also heard gun shorts. After getting some information that the bandits were in a vehicle^ they made a stone i road block, and hid in some sisal bushes; that was about 1.50 am (between midnight at 3.00 am in the morning)] According toPw3, as the vehicle came by the road block, they fired their gun in the air, 4 people disembarked and removed the stones.) The vehicle he saw was a Toyota make but he couldn't mark the number. There were more than 4 people (as per Pw3) in the vehicle that night. He identified 3 of the bandit, of who Ogawa and James he knew before. He made a phone call to the police, who arrived promptly about 2.00 am. They then visited the homes of Pw2's and Pw1. The latter had serious bleeding wounds in the head. He was taken to hospital. One of the police who responded to Pw3's telephone call testified as Pw4. His testimony was that between 1.00 and 5.00 am the day of the incident, he learnt that bandits had robbed Pw1 then moved on to rob Pw2. He and the police immediately went to the Pw'l s house, where they noticed a lot of blood on the floor and things (items) moved around. Pw3 was there and he informed them he had recognized three of the robbers. They then went to Pw2 the other victim's house. His house was in disarray and he told them he recognized three of the robbers, as he was hiding in the ceiling board. The robbers had a gun. They robbed him of a number of items including a TV, deck, radio etc. In the morning i.e. 24th, they went to a local hospital where Pw1 was hospitalized^ found him in bad shape, and a lot of villagers were there, including'the first accused. Pw4 was then informed by the villagers that Ogawa was one of the robbers. On being interviewed, he claimed that knew Pw1 for long, so when he heard that he had been attacked and was hospitalized, he decided to visit him. Pw4 apprehended him and put him under arrest. On 16/4/2004, while Pw4 was on ordinary patrol, he met Pw2 with an informer, who had told Pw2 that the robbers were back in their houses (homes). That informer led them first, to Joram's house ,they found him there and arrested him. Pw2 identified in that house a MV battery, Sony Radio and other properties he claimed were stolen from him. Joram was then arrested although he claimed that he had hired the Radio from James, as he had celebrations in his house. Joram then led them to James's house. They found James in but he denied to have, given a radio and battery to Joram. In James's house, Pw2 also identified another MV battery. A t the trial (as indicated earlier), Pw2 had no proof o f ownership o f it - thus the acquittal on the second count) , * > All the three appellants gave bold denials of the charges but each had his own version of facts in defense. Qqawa testified that on 23/3/2004 he was in Shirati where he knocked a child down. He was arrested by the people there and taken to the police. Later, that child's parents also came to the police, and agreed to get him free if he made a contribution to the child's treatment. The police refused to release him unless he gave them Tshs. 5000/= as bribe. He didn't have money so he was kept under arrest and on 25/3/2004 brought to Tarime and charged with the offence facing him.; Joram's story was that he was arrested at court premises on 16/6/2004 and charged on 17/6/2004. He couldn't have been at the scene of crime as he had an alibi, he was on the date in question hospitalized. James too claimed he was an accused in Cr. Case 21,5/04, and was on court premises on 16/6/2004 in respect of that cas^, when he was arrested and on 17th charged with the charge facing him. He gave an alibi regarding the 23/3/04 namely that; on that! day he was attending his father's wedding. On appeal, the appellants' counsel Mr. Outa submitted (orally) four grounds of complaints namely that; 1. There was no proper identification 2. The doctrine of recent possession was wrongly invoked 3. The trial magistrate failed to see or address contradictions in the prosecution witnesses. 4. The offence of armed robbery was not proved beyond reasonable doubt. Mr. Mwenempazi - S/Attorney supported both conviction and sentence, and refuted each of the defense counsel's submissions. Both counsels marshaled legal precedents to support their positions. It is now appropriate to evaluate each ground of contention in light of counsel's submissions, and trial court's reasoning in the judgment. I shall begin with part of the last issue - whether on the facts there was armed robbery committed at the homes of Pw1 and Pw2 on the night of 23/24 - 3-2004. On the detailed facts above, based on i Pw1, 2, 3 and 4 is testimonies, P1 and P2 1 see no need to belabor on this issue. No reasons are given why witnesses, who the trial magistrate believed, would lie on this fact.; Also there was in evidence Exh. -un objected to, regarding Pwl's hospjtaltzation. i Regarding the issue of recent possession, the appellants were acquitted, although on the evidence, Joram's possession, of PwlAs property was not exact innocent save for the recovery procedure used. I will return to this issue later. Let me proceed to examine the evidence regarding identification of the appellants at the scene of crime to which groun 1,3 and 4 relate . According to Pw1, he was awakened'by bhang of his door. He saw three people come in and they looked familiar the room had electricity. Two of them he knew before by face and name Ogawa and Jerome 1st & 3rd appellants. He did not know exactly where they stayed but he had seen Ogawa at Utegi and the 3rd had prior to that bought sugarcane to his home. When he tried to run they fired a gun at the corner of the room. They then ordered his wife to give them money or be killed. She gave them his brief case. They cut it open with a machete and took 1 M. TShs. which was in there. They then stole his solar system and his Yuasa battery for the solar power. Pw2 the other victim's testimony w^s that he was alerted by sound of M/vehicle at a distance, he got up and hid on the ceiling of his house. He said he then heard robbers fire a gun once outside, and then 3 of them got in his house first. They stayed in his house collecting their root for about 20 minutes - as he watched them. He had seen neither before but he marked them. The 1st accused got in last and the bandits were referring to him as afande maji, he had a gun others had pangas. About 10 minutes after they left, he heard i another gun shot. (This evidence tallies with what (Pw3) heard and saw.) Pw2 testified further that when Pw3 the village chair turned up I following the alarm, he recognized the robbers, (further, he testified that he was one of those who tipped the police to arrest Ogawa, when he came to the hospital in the morning of 24th (few hours after the incident) According to Pw4 - when he arrived at Pw2, the latter informed him that he had recognized the 3 appellants. The other evidence of identification was given by Pw3, the village chairman who made and watched the robbers at the road block. His evidence was that he identified the 1st and 3rd appellant, they were people he had seen at the village several times before "Ogawa used to stay at Maganiwo Pw1). He also named the 1st appellant Ogawa to the police and led to his immediate arrest. This issue was confirmed by Pw4 as he said the people at the hospital (where Pw1 was hospitalized) identified Ogawa as one of the culprits. The investigator Pw4, supported Pw2's story about receiving a call from him, learning from Pw2 and Pw3, as soon as he arrived at the scene of crime that the two had identified some of the robbers - Ogawa and James, and further that; villagers in the morning after, at Shirati hospital, identified Ogawa who he arrested. ii There is another aspect, not specifically focused by counsels or the trial magistrate. Joram and James raised alibis, and strong ones too, meaning which they could have easily supported, if they were true. Joram claimed to have been hospitalized on the day of the robbery. He called no witnesses or medical reports to substantiate this story. James's alibi was that he was attending his father's wedding - again, did not call any witness to substantiate this fact. I am aware and it is a trite legal position that!the defense has no burden of proof; as such it does not have to proye its alibi. But, these defenses of alibi were raised in contravention of s. 194 4 & 5 of the CPA which states, and I quote; "(6) if the accused raises a defense o f alibi; without having first furnished the particulars o f the alibi to the court or to the prosecution pursuant to this section, the court may in its discretion, accord no weight o f and kind to the defense. " "This is what the trial court is being criticized for as having given no consideration to the defense story). The court was entitled to accord no weight to their alibis. As for the 1st accused, he gave a version of how he was arrested,.yet never x-examined Pw4 when he testified regarding his arrest - nor give a substantiation of his story regarding arrest after knocking down a child. The court properly found his story to be a fabrication. , The defense story at it stands renders itself incredible as to make a court draw a negative inference. A criminal case however is judged on strengths of the prosecution and not weakness of defense. I proceed to look at that strengths or weakness! of the prosecution case. i The trial magistrate in evaluating the evidence of identification said; he was satisfied with Pw1 & Pw2's and bw^s identification because they testified that the rooms were lighted, -(as for Pw3, it was lighted by vehicle lights);previous knowledge of Ogawa and James; that Pw2 had sufficient period, 20 minutes while he was positioned on the ceiling of a lighted room; ability of Pw2 name his attackers, shortly after; Pw3 - identification of Og&wa and James at road barrier, who he knew before; (Pw3 said he identified 1st and 3rd before even meeting Pw1 and Pw2,); The people at Shirati knew •* Ogawa was one of the robbers, that was why they identified him a few hours after the incident and had him arrested. Ogawa didn't question Pw4 - regarding the story of his arrest, or refusing to give a bribe to police. Mr. Outa for defense's criticism is that due to sudden appearance of robbers, even though the room was lighted, Pw1 could not have identified them, that is why he description had no details - though he said he knew 1st and 3rd before. He further submits in respect of Pw2, who did not know the appellants before, that as he was on the ceiling; it was possible to identify people by looking on top of their heads. As to Pw3 the village chairman who guarded the road barrier, counsel submits that this evidence contradicts that of Pwl,who said Ogawa used to stay at Pw1 but the latter in his testimony said he used to see him in Utegi; Further, that Pw3's exact position at the road block was not described as to leave no doubt about his ability to identify the appellants. He goes on to submit that Pw4's testimony is based on information received. i In response, Mr. Mwenempazi learned S/Attorney submits that the appellants were properly identified as the witnesses had sufficient i time with the appellants; they were observing them from a short distance; there was sufficient lighting; and existence of previous knowledge - the appellants were properly identified as per guidance in the CA decision in Waziri A. 1980 t l r 250. He submits further that the fact that they were able to mention the culprits immediately^ is evidence of reliability of their evidence of identification. In support of this principle he cites the CA decision in (Swale Kahonga in Cr. App. 46/2001 in Mwanza Registry (unreported) citing in 1. Marwa Wangiti Mwita 2. Boniface Matiku Mgendi V Republic, Cr. App. No. 6 of 1995, •^ Mwanza Registry (unreported) that; 'We think the failure o f Pw l in particular to name at least the first appellant before or during the operation were not consistent with identification of any o f the bandits." "The ability o f a witness to name a suspect at the earliest opportunity is an all - important assurance o f his reliability, in the same way as un-expiained delay or complete failure to do so should put a prudent court to inquiry" As to the contradiction pointed out by the defense, he explained that the contradiction did not relate to the issue of identification at the scene; In any case the contradictions were minor based on mistaking previous facts. I concur with the defense submission that when conditions of identification are unfavourable the evidence can not be relied on, but I am aware nevertheless, that the question of when conditions are unfavourable has no hard and fast rule; it is to1be determined on the peculiar facts of the case, and the actual circumstances of the perceiver, where they leave no doubt, such' observer's (witness) evidence can be relied on. In other words,, as held by the CA, it is not in every frightening situation when all victims loose alertness. I find support in this belief in their decision in citing in the case of Hassan Juma Kanenyera and others V Republic (1992) TLR 100 at 101 had occasion to rule that; "(i) However horrifying a situation is there is a watershed mark and if that is reached then a victim overcomes his or her fear and measures up to the occasion. We believe P.W.4 after such languish sojourn with her persecutors she surpassed fear and as she said "Despite the torture I remained alert in the mind and observed the bandits closelyMoreover, in this particular case the reliability o f the identification o f the appellants largely depended on the demeanor o f P. W.4. This was the monopoly of the learned trial judge who believed P. W.4 and we will be wrong to fault her." I accept the trial magistrate's conclusion that Pw1, Pw2 and Pw3 identified the appellants, - Ogawa and James’ persons who they had previous knowledge of. The story regarding boram is different. He was identified only by Pw2 who did not know him before. My finding that they identified Ogawa arid James is fortified by the fact that they Pw2 & Pw3 were able to mention the fact, immediately after the event, before appellants' Arrest. This immediate mention goes to support their evidence of <unmistaken identity. Further the above evidence, examined in the totality of the evidence adduced, including the negative inference of the defense story, I find that the prosecution has proved its case. Ogawa & James were properly identified at the scene of crime, wheri Pw1 and Pw2 were robbed, and the crime committed was armed robbery. I accordingly dismiss their appeal in entirety. As for the 2nd appellant Joram, the evidence in respect of him was weak. He was identified by Pw3 only, who had no previous knowledge of him. In respect of the recovered property the un procedural process used, makes that evidence un usable. I accordingly find the case against him was not proved, quash his conviction and sentence. In conclusion, I dismiss Ogawa and' James', (1st appellant and 3rd appellants') appeals against both conviction and sentence. The conviction of Joram is quashed; he is to be set free unless otherwise lawfully held. Regarding the orders given by |the trial court, I leave order 1, 2, and 4 intact. Order 3 is quashed as there was insufficient evidence adduced to prove the value of the stolen properties. "It is so ordered" i R. M. RWE^ JUDGE 6/5/2005