majid john vicent mlindamgambo vs republic 2006 tzhc 120 14 august 2006

IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURISDICTION HC. CRIMINAL APPEAL NO. 99 OF 2005 (CF's) HC.CR. APP. NO. 100 OF 2005 (Original Cr. Case No. 134 o f2003 of the District Court of Mwanza at Mwanza Before: D. B. NDUNGURU, Resident Magistrate) 1. MAJID JOHN VICENT @ MLINDAMGABo] 2. ABDU SELEMAN HAMIS @ MIBURO J. ......... APPELLANTS Versus THE REPUBLIC............................................... RESPONDENT 10/5/2006 & 14/8/2006 JUDGMENT RWEYEMAMU. J: This is a consolidated appeal 99/2005 of Majid John Vicent @ Mlindamgabo and 100/2005 of Abdu Selemani @ Hamis Miburo. The two were charged before Mwanza District Court (DC) with three others on two counts namely conspiracy to commit offence c/s 384 and armed robbery c/s 285 & 286 of the Penal Code. They were tried; the rest acquitted while the two were convicted of armed robbery and sentenced to serve 30 years imprisonment. Dissatisfied, they have appealed that DC decision. The facts of the case are brief. On 2/2/2003 about 8.30 pm, armed bandits broke into the complainant Pwl7s shop- a pharmacy. They were armed with a knife and a gun (make SMG). They threatened his life and has he tried to go for his pistol, they overpowered him and took his pistol tendered in court as P exhibit 1 (PI); made away with money - the day's collection which included Tshs. 13,000,000/= he had received that day from his customer Pw3. According to the witness the whole event took about ten minutes. He then reported the mishap to the police. The license of ownership of PI was tendered in court as P2. The witness dock identified the appellants in court, and gave specifics as to who among the two did what at the scene and the type of weapon each was carrying, as they entered his pharmacy; spoke with him first as customers, then turned into bandits. A month later, on 16/3/2002, the police where tipped by an informer about an inpending robbery at some locality in Mwanza. A follow up was made by a police whose team included Pw4. They laid a trap at a place known as Bamilo, where finally a suspected vehicle - taxi arrived and they stopped it. Therein were the two appellants and the taxi driver. (Apparently the driver was the police informer). The appellants had with them a number of ammunition and bullets; the first appellant had an SMG gun and the 2nd had the pistol PI. When the appellants were arrested in a taxi they had with them a number of ammunition including the pistol PI. It is not in dispute that the recovered pistol belonged to Pw1 and was the one reported stolen by him as indicated above. After the appellants' arrest a police detective Pw2 took the appellants' cautioned statements admitted in court as P5 and P6. The recovered SMG and 28 bullets were admitted as P3 and magazine with 40 bullets admitted as P4. Pw3 a businessman who owns a retail 2 • shop testified that he bought commodities from Pw1 on the fateful day i.e. 2/2/2003 for which he paid Shs. 13,000,000/= The appellants' conviction according to the judgment was on the main based on the evidence of identification on the scene of crime by Pw1 and the fact of being found in possession of among other arms, PI, a pistol stolen from Pw1 as described above. The issue for decision in this appeal is whether conviction of the appellants was well grounded based on the two aspects, but also whether the trial was a nullity in view of ground 1 and 2 of the appellants' memoranda as paraphrased below. The two appellants are now challenging that conviction basically on five grounds itemized below in a sequence I shall adopt in dealing with them. They are as hereunder:- 1. That they were denied the right to be heard - as they were foreigners (from Burundi) who could not follow Swahili, the language used in the proceedings. 2. That proceedings were a nullity in view of the fact that in the search conducted arms were recovered, legally they could not be charged without consent of the DPP. By implication in my opinion, the appellants seek to challenging the evidence of possession. 3. That the cautioned statements recorded by Pw2 were wrongly admitted. 4. That absence of evidence of Identification Parade made Pw^s identification evidence unreliable. 5. That identification was not watertight as it was done under unfavorable circumstances. Supporting conviction, Mr. Mwenempazi state attorney for the Republic/respondent submitted that identification was watertight as per rule in Waziri Amani v R, (1980) TLR, in view of the following facts and evidence-: 1. The time the witness had the appellants under observation- about ten minutes was a sufficiently long period for him to mark their features. 2. The distance of observation; they were observed at a close range as they approached him at the counter put a knife on his neck; wrestled with him and took his pistol; searched and retrieved money- the day's sales including the bigger amount kept differently; all which was done: 3. In a place which was well lighted. According to the evidence the witness was still selling in a pharmacy when he was attacked. And that: 4. That the case was also proved in view of Possession of PI by the appellants, a property proved to belong to the complainant; In the absence of their reasonable explanation of such possession was another piece of evidence corroborating evidence of identification. 4 I will proceed to examine the two basic issues in this appeal namely the issue of identification and application of the doctrine of recent possession but will also consider the appellants other grounds of appeal. I find it appropriate to begin with ground 1 which I find fundamental; for if the appellants' allegations are found to be true, that ground alone would be sufficient to vitiate the proceedings. Is true that the appellants were denied the right to be heard? Both appellants claim in their memorandum of appeal that they did not understand Swahili so conducting proceedings without an interpreter amounted to denial of their right to be held. Mr. Mwenempazi disagrees. He points to the fact that both were able to x-examine Pw3 in Swahili (as per page 15 of the trial court typed proceedings); a fact also noted by the court at page 16- where it proceeded to conclude that "this means that their pretending not to understand Kiswahiii was the 'technical'delay o f the case" I agree with both the trial court and the learned state attorney's conclusion on the issue. If the appellants were serious in their claim that they did not understand Swahili, they would have raised the issue at commencement of trial; and to augment their claim, they would have told the court where they came from; how long they had been in the country and which language they spoke and understood- surely with such facts no court would have proceeded without calling in an appropriate interpreter. Curiously, even in their memoranda, the appellants do not indicate which language they speak or understand. Further, I agree the fact that the appellants chose to x- examine Pw3 - (probably after realizing that their game was not 5 working and damning evidence was being received) shows they i understood Swahili. The appellants can not be heard to complain now, they chose to remain silent as his their right under section 231 (I) (b), and an adverse inference would be justified under section 231(3) of the Criminal Procedure Act (CPA). I dismiss this ground as baseless. I now turn to the appellants' ground 2 above - the issue of absence of the DPP's consent, regarding which Mr. Mwenempazi made no comment. I have checked the relevant law. It is the Police Force and Auxiliary Service's Act (CAP 322 R.E.2002) which incorporates the Police Force Ordinance section 35(4) and (5) read together with section 38(4) of the Criminal Procedure Act, 1985 (CAP 20 R.E.2002). These sections I proceed to reproduce for ease of reference: (CAP. 322 R.E. 2002) "35(4)-The provisions o f section 38(4) o f the Criminal Procedure Act relating to search shall, so far as may be, apply to a search made under this section. 35(5) - No prosecution against any person for an offence under subsection (4) shall be instituted except with the written consent o f the Director o f Public Prosecutions" (CAP.20 R.E. 2002) "38(4) - Whoever, being empowered by law to order, authorize or conduct the search or any person, place, building, vessel, carriage or receptacle, vexatiousiv and without having reasonable grounds for doing, orders, authorizes or conduces such search is guiitv o f an offence and upon conviction is liable to a fine not exceeding three thousand shillings or 6 imprisonment for a term not exceeding one year" (Emphasis mine). The import of the said provisions is to require the DPP's consent before prosecuting a person who acts vexatiously as per the underlined part of S.38 (4) above. The section does not require consent before prosecuting a person found with ammunition involved in commission of an offence, as both appellants would wish this court to believe. I accordingly hold that PI was rightly tendered as an item stolen during commission of the offence the appellants were charged with, and dismiss this ground as being based on a misconception. Regarding ground 3 the cautioned statements; Mr Mwenepazi while not conceding the appellants' submission was quick to point out that conviction of the appellants was not based on the said statements P5 and P6. On this question, I have to state clearly that the appellants' are right. The said statements, made in a question and answer form do not qualify to be termed cautioned statements on the authority of Seko Samwel v R, Cr. App. 7/2003 CAT (Tabora registry-unreported). They were wrongly admitted. After going through the DC judgment however, it is clear the same was not the basis of the appellants' conviction. That is, expanged from the record, conviction would still stand depending on the findings on the issue of identification and application of the doctrine of recent possession. One aspect of the appellants' complaint on identification is that Pw^s evidence was not worth of credit because Identification Parade (ID) was not conducted. May be on this issue it is best I begin by 7 restating the legal position regarding such evidence. Evidence of ID I Parade is not substantive evidence, 'the outcome o f such parade is by itself o f no independent probative value. At the highest it can only corroborate the evidence given by the identifying witness in court under section 166 o f (TEA), 1967 or contradict the statement o f the witness in court under section 164 o f TEA.'See Moses Deo v. R, (1987) 134 (CAT) and Dennis Nyankonda v. R; Cr. App. No 159 (Mwanza registry -Unreported). Failure to conduct IP parade 'does not render the witness's evidence unworthy o f credit' — Jandika Makwarija and another v. R, Cr. App. 175/1991; (CAT, Dodoma registry-unreported)" So absence of such evidence is not of the significance assigned to it by the appellants. After all, it is always up to the prosecution to bring into court evidence they believe sufficient to prove the case, and I adopt the same reason in respect of the claim that the prosecution failed to summon the taxi driver in whose vehicle the appellants were arrested; although on that issue the prosecution's Pw4 had an answer-he said the taxi man was the informer. The issue of concern is whether the evidence mounted by the prosecution was sufficient to prove the charge. That is the question I now turn to. Was Pw*'s identification of the appellants watertight? After going though the trial court's reasons for its decision; evidence on record on the issue; and considering Mr. Mwenempazi's reasons in submission which I find supported by the evidence on record, I accept the court's decision that the appellants, who according to Pw1 were the ones who entered his lighted pharmacy and spent about ten minutes with him, were properly identified. There are no hard and fast rules as to which conditions are favourable for identification; the decision depends on the facts of each case - its peculiar circumstances and those of the identifying witness. It is not true that in every frightening situation every witness will fail to properly identify the assailants, as was held by the CA in Hassan Juma Kanenyera and others V Republic (1992) TLR 100 at 101 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 Pw4 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 closely" Moreover, in this particular case the reliability o f the identification o f the appellants largely depended on the demeanor o f Pw4. This was the monopoly o f the learned trialjudge who believed Pw4 and we will be wrong to fault her." In this case, Pw1 was a witness prepared to encounter a situation similar to what occurred - that is way he was armed with PI, he is clearly not a typical timid victim. The trial court was satisfied that he was telling the truth on the issue, and given all the reasons stated above, including Pw*'s coherent description of the robbery, I see no reason to fault its conclusion. I accordingly find that this evidence of identification by Pw1 was sufficient to convict the appellants. But even if it was not, I would still agree with the trial court, that their culpability was sufficiently established under the doctrine of recent possession. PI which the appellants were found with ready handed, is not a kind of property which change hands quickly, so a period of one 9 month was short enough for the doctrine to be invoked. The appellants offered no explanation of possession let alone a reasonable one, and I have already dismissed their claim that they chose to remain silent because they did not understand the language. It is obvious to me the appellants knew that the had no explanation of ownership, that is why they chose to remain silent. The court was entitled to draw an adverse inference on that silence. In a nutshell, I dismiss both appellants appeal, it has no merit. Sgd: R. M. RWEYEMAMU JUDGE 14/08/2006 Court: Judgment prepared at Geita. o rd e r: File with the certified judgment forwarded to the DR in Mwanza, who should summon the parties and deliver it to them on 28/8/2006. Sgd: R. M. RWEYEMAMU JUDGE 14/08/2006 10