20071218 TZCA Dar es Salaam 1

I . IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM ,.'{CORAM: MSOFFE, J, A~ RUTAKANGWA, J.A, AND KIMARO, J, A. CRIMINAL APPEAL NO. 179 OF 2004 st MWALIMU ALLY •••••••••••••••••••••••••••••••••·•••••••••••••••••••••1 APPELLANT MAYUNGA ABDALLAH ...... :........................................ 2No APPELLANT · RD MOHAMED SAID ....................................................... 3 APPELLANT VERSUS THE REPUBLIC ................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es salaam) (Mlay, J.) dated 19th day of July, 2004 in Criminal Appeal No. 21 of 2004 JUDGEMENT OF THE COURT 10th Dec. & 18 th Dec. 2007 RUTAKANGWA, J.A.: The three. appellants were among the seven accused persons arraigned before the Court of Resident Magistrate Kivukoni ., in . ;,, ·--··--···- ---- --~--~ Criminal Case No.· 374 of 2000 for the offence of Robbery with Violence c/ss 285 and 286 of the Penal Code. Having been convicted as charged, they were sentenced to fifteen (15) years imprisonment. They were also ordered to pay compensation of Tshs 3,946,000/=. 1 . . . ,:..· Being aggrieved by the conviction and sentences, they appealed to the High Court. The High Court (Mlay, J.) sitting at Dar es salaam was satisfied that the trial court's decision was sound. It accordingly dismissed the appeal in its entirety. Dissatisfied by the High Court decision, they have come to this Court. The appellants have filed a discursive memorandum of appeal containing eight grounds. Essentially, all these grounds of complaint boil down to one basic complaint. This is that their conviction was based on very weak and totally unreliable identification evidence. At the hearing of the appeal the appellants did not have additional grounds nor did they say anything in elaboration of their grounds of appeal. Mr. Boniface, learned Principal State Attorney, represented the respondent Republic in this appeal. He did not support the conviction of the appellants. He, too, ,believed that the visual identification evidence of the key prosecution witnesses was flawed by fundamental contradictions which rendered it totally unreliable and unsafe to support a conviction for the charged offence of robbery. 2 The evidence leading to the conviction of the appellants was as follows. On 11 th April, 2000 at about 1.30 hrs the residence of Ziada Omari (PWl) was invaded by a number of bandits. PWl was sleeping. therein together with her children, namely Frank Lakrudo (PW2) and Ayubu Rashidi (PW3). PW2 and PW3 were sleeping in one room. According to PWl, PW2 and PW3 they were rudely awakened from their sleep by a bang on one of the doors of the house. This was followed by a blackout as the electric lights were switched off. The bandits entered the house and roughed its occupants up. After collecting a number of household items such as a computer, generator, clothes, wrist watches, shoes, T.V. set, typewriter, ear rings, music systems, e.t.c, they disappeared. However,· the appellants were allegedly identified among the b.andits during the robbery. -r· •••• • ·• •• ••·· .n - ~ - - ~ • • . • . - , . - , . , - - , , ~ " -, • - ••••·---~ After the departure of the bandits, PWl and her children informed their neighbours what had befell them. Later on a report on the robbery was made at Magcimeni Police Station. The 1st appellant and one Hassani Athman who was the 2nd accused in the 3 / trial Court were the first to be arrested. Then the 2nd appellant and I.J the 3rd , 4th and 6th accused at the trial were arrested on 17th April, 2001 by No. D25 D/Cpl. Isaya (PW6) following a tip from one of their informers. The evidence does not show when the 3rd appellant was arrested. Although the appellants denied the charge in their affirmed testimonies, the learned trial Principal District Magistrate convicted them because PWl had allegedly identified the 1st appellant by his voice and the 2nd and 3rd appellants had been identified by PW2 and PW3. Admittedly, the conviction of the appellants rested on the disputed identification (both visual and voice) evidence of PWl, PW2 and PW3. It is now settled law that in a case depending for its determination primarily on identification evidence, be it of a single witness or more than one witness, such evidence must be water- ~r_- ~.• -.,,-,. ·.:·.· ..--~•-·;·.·.·~-:-.• .· .,.,, . _.._., ...-...., --f'• ··-~ •' tight, even if it be evidence of recognition: See, for instance, DORI KI KAGUSA V. REPUBLIC, Criminal Appeal No. 174 of 2004 (unreported) and BALDWIN KOMBA @ BALLO V. REPUBLIC, Criminal Appeal No. 56 of 2003, among the most recent decisions of this Court. The 4 unavoidable question in this appeal is whether the evf de nee of P\l\t . 1, PW2, and PW3 met this test. In other words, was the ;dentificatio n evidence of these witnesses so accurate and unmistaken as to be beyond reproach? This Court in the case of SAID CHALY SCANIA V. REPUBLIC Criminal Appeal No. 69 of 2005 (unreported) drawing inspiration from the now legendary case of WAZIRI AMANI V. REPUBLIC [1980] TLR 250, had this to say: 11 We think that where a witness is testifying about identifying another person m .. unfavorable circumstances like during the night he must give clear evidence which leaves no doubt that the identification is correct and reliable. To do so, he will need to mention all the aids to unmistaken identification like proximity to the person being identified, the source of light, its intensity, the length of tin?e the person being . identified was within view and also whether the person is familiar or a strange!'. Before expressing our opinion on the concurrent findings of fact by the two courts below that the three prosecution witnesses made 5 an accurate and unmistaken identification of the appellants, we have to ask ourselves this simple but germane question. Were the circumstances at the scene of the crime conducive to an unmistaken identification? There is no dispute that the robbery was committed in the dead of night. The evidence on whether there was light inside the house is controversial. PWl testified that the bandits had switched off the lights before entering the house. PW2 told the trial court that "the culprits put on all the lights of the house and so" he" managed to see their faces/~ On his part PW3 said that a few seconds after the bang he heard people talking along the verandah where "the lights were on". It defies logic to imagine that the appellants who had switched off the lights (if PWl were to be believed) to hide their identities, would after gaining entry into the house switch on the lights (if PW2 were to be believed) in order to reveal their identities. It is, ► therefore, impossible to judge as to who among these witnesses was telling the truth. For these reasons we are constrained to disagree with the learned first appellate judge who held that:- 6 Q" "The lights of outside the house were put off by the robbers who upon entering the house... switched on .the lights inside the house and the rooms'~ ·Both common sense and reason militate against this finding. All the same, even if we were to accept that there was light in the house, this fact alone would not be sufficient to clear our genuine doubts on the sufficiency of the visual identification evidence. This is because the intensity of the said light was not disclosed at all and the two courts below did not address their attention to this aspect at all. The credibility of the three prosecution witnesses was further challenged on the grounds of inconsistencies, implausibilities and other patent contradictions in their evidence, by both the appellants and the respondent Republic. Mr. Boniface meticulously took us through a litany of the same. For the reasons which shall soon become apparent we have found no pressing need to reproduce . . . . .., .. them here. Suffice it to say that they are not trifling discrepancies and /or inconsistencies. They are discrediting, to say the least. While concluding his submission in support of the appeal, Mr. Boniface observed in passing that the learned first appellate judge 7 did not give serious attention to the appellant's complaint that the trial magistrate "had no jurisdiction to try the matter before him': He thought that the complaint, though inelegantly presented, was a valid one. He was of the view that going by the proceedings and judgement of the trial court the case had been filed in the Court of the Resident Magistrate Kivukoni. That being the case, the learned trial Magistrate, being a District Magistrate had no jurisdiction to sit in that Court, he submitted. Dismissing this complaint the learned first appellate judge reasoned as follows:- ''/ think, upon inspection of the proceedings and recasting on the file covers the issue of jurisdiction has been raised due to an error in the typed proceedings bare (sic) the heading ''IN THE RESIDENT MAGISTRATE COURT OF KIVUKONI AT KINONDONI" while oil the cover of the court file it is printed "in the -.---RMS/fJist-rict--Court -of··:-:-:-:.--.--:~:-..~·--At ............--✓~- 1n· ·· the dotted place appear written by hand "Kivukoni" and Kinondoni ·respectively. The printed "RMS" has not been crossed out nor has the ''DISTRICT'; leaving the heading of the file to read:- ''In the RMs/District Court of 8 .."' Kinondoni at Kinondonr~ This heading on the cover of the file does not suggest that the case was filed in the Court of the Resident Magistrate of Kivukoni Kinondoni to the exclusion of the District Court of Kivukoni at Kinondoni. I am therefore unable to find any Justification for the argument that the case was filed in the Court of the Resident Magistrate of Kivukoni but tried by a District Magistrate/~ He accordingly found the complaint wanting in merit and dismissed it. We have had ample opportunity to study the record of appeal and even the original trial court's record. Every indication is that the case against the appellants was filed and tried in the Court of Resident Magistrate Kivukoni at Kinondoni. But we had to satisfy ourselves beyond a reasonable doubt on this. In so doing we resorted to section 11(1) of the Magistrates' Courts Act, Cap 11. It is provided therein that "each magistrate's court shall keep such register or registers of all the proceedings entered, heard and determined in the court as may be prescribed". We took judicial 9 G- ~tl notice of this. We perused the criminal register of the Court of the Resident Magistrate Kivukoni at Kinondoni. Our perusal of the said register vindicated the appellants and · Mr. Boniface. It confirmed that indeed the appellants were charged, tried and convicted in the Court of the Resident Magistrate Kivukoni at Kinondoni. Admittedly, that court has jurisdiction to hear and determine robbery charges. The question here is whether it was duly constituted. Our only answer, basing on section 6 (1) (C) of Cap 11 is in the negative. Such a court shall be duly constituted when held by a Resident Magistrate. It goes without saying, therefore, that the trial of the appellants was a nullity: See WILLIAM RAJABU MALLYA AND TWO OTHERS V. REPUBLIC [1991] TLR 83. For the foregoing reasons we hereby quash and set aside the proceedings in the trial Court of the Resident Magistrate. As the decision of the High Court was based on null proceedings it is also ----- ca·- - , - - - I" - quashed and set aside. While urging us to nullify the proceedings in the trial court Mr. Boniface was of the view that in case he was upheld on this, a re-trial should not be ordered. The reason he assigned was that as the 10 0- : ,'t prosecution case was very weak, even if the appellants had been tried and convicted by a duly constituted court, this Court would have quashed their conviction. A re-trial will entail giving the prosecution the chance to fill in the gaps in its weak case, he argued. We entirely agree with the sentiments of Mr. Boniface. Apart· from the sound reason advanced by him we are alive to the fact that the appellants have been in prison for four years. In the peculiar circumstances of this case an order for a retrial would be inimical to the interests of justice. We, therefore, order that the appellants be released forthwith from prison unless they are otherwise lawfully detained. DATED at DAR ES SALAAM this 13th day of December, 2007 J.H. MSOFFE JUSTICE OF APPEAL E.M.K. RUTAKANGWA JUSTICE OF APPEAL I N.P. KIMARO JUSTICE OF APPEAL ~~~~ify that this is a true copy of the Original. r.~' (DEPUTY REGISTRAR) 11 I