20070316 TZCA Mwanza2

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: LUBUVA, J.A., MROSO, J.A. AND RUTAKANGWA, J.A.) CRIMINAL APPEAL NO. 35 OF 2005 KULWA S/O MAKWAJAPE SAlMON NYANDA Tv1BIGII_I ZILIVFA ............................................ APPELL.NTS VERSUS THE (Appeal from the Judgment of the High Court of Tanzania at Mwanza) (Masanche, J.) 10th August, 2003 dated the in High Court Criminal Appeal Nos. 163, 185 and 194 of 2002 JUDGMENT OFTHE COURT 6 March & 16 March 2007 LUBUVA, J. A.: The appellants, Kuiwa sf0 Makwajape, Salmon Nyanda andl MbigiIi Ziliwa were charged before the District Court of Kwirnba District at Ngudu with the offence of robbery with violence contrary to sections 2 285 and 286 of the Penal Code. They were convicted and sentenced to fifteen years imprisonment. The appellants' appeal to the High Court (Masanche, 3.) was dismissed. The sentence was enhanced to a term of thirty years imprisonment and hence this appeal. The facts as found at the trial were that on 11.10.2001, at about 2.00 a.m., while the complainants, Duba Malando (PWi) and his wife, Milembe Mazuli (PW.2), were sleeping in their house at Ndami Village within Kwimba District, their house was invaded by a group of bandits. The door was forced open and the bandits armed with a gun, panga, iron bar and machetes entered the house. The bandits cut PW.1 with a panga on the legs while demanding with menace money from PW.2 who was forced to give them a total of shillings 350,000/=. In the process, various house hold items were stolen whose total value was estimated at shillings 456,000/=. After the raid, the bandits disappeared. PW.i reported the incident to Luzumya Malosha (PW.3), the commander of people's militia, "Sungusungu" who raised an alarm. People around the area responded to the alarm. PW.1 mentioned to the people who gathered at the scene of robbery that the appellants were involved in 3 the robbery. The matter was reported to the police and the appellants were arrested and later charged in court. At the trial, the case against the appellants was largely based on the evidence of Duba Malando (PW.1), and his wife, Milembe Mazulu (PW.2), the victims of the raid. The other witnesses were Luzumya Malosha (PW.3), Chief Commander of Sungusungu, Joseph Shija (PW.4), the Village Executive Officer and Busunda Nyanda (PW.5), another commander of sungusungu. In their defence, the appellants denied the charge. The first appellant maintained that he was arrested on mere suspicion when he went to the scene of crime, the house of PW.1, in response to the alarm. The second appellant, Saimon Nyanda, also denied charge. He raised the defence of alibi that on the day of incident he was away attending celebrations until 12.10.2001, when upon his return he heard of the robbery. He remained: at the village until 17.11.2001 when he was arrested. The third appellant, Mbigili Ziliwa, also raised the defence of alibi claiming that on 11.10.2001 the day of the robbery, he was at -0 Nyahonge, 10 kilometres from Ingumagobo working in the shamba of Mazoya Ludaha (DW.4) who supported the third appellant in his defence. The trial magistrate rejected the defence of both appellants and held that he was satisfied that the appellants had been properly identified by PW1 and PW.2 who knew the appellants before the incident. The trial magistrate further held that PW.1 and PW.2 were able to identify the appellants because there was light from a lamp and that the incident took some time. On the basis of this evidence, the appellants were, as already shown convicted. On appeal to the High Court, the learned judge was also satisfied that the conviction against the appellants were "deserving". Like the trial magistrate the learned judge was of the settled view that the appellants had been properly identified. In this appeal the appellants appeared in person and Mr. Feleshi, learned Senior State Attorney, represented the respondent Republic. 5 From the memoranda of appeal initially filed and the additional grounds presented to Court at the commencement of hearing the appeal and their address to the Court, the essence of these grounds is as follows: With regard to the first appellant, Kuiwa s/o Makwajape, who, at the trial was referred to as the first accused, he firmly maintained that he was not properly identified during the alleged incident of robbery on the night of the 12.10.2001. Having responded to the alarm among other people, he wondered why he was not arrested the same night until the following morning at 9.00 a.m. if he had been identified - and mentioned to the people gathered at the scene? The evidence of PW.1 that he identified the first appellant among other accused persons is not credible because PW.5, Busumba Nyanda, the commander of sungusungu at Ingumagobo Village who responded to the alarm said only one suspect, namely the third appellant, was named and not the first appellant. The first appellant also said that the identification at the time of the alleged robbery was unreliable because, it is not shown in the evidence of PW.1 what type of lamp it was that enabled PW.1 to identify the alleged robbers. -4 6 Similarly, the second appellant, Salmon Nyanda, who at the trial was referred to as the third accused, charged that he was not properly identified as one of the alleged robbers. He said on the night of the incident he was away from the village and that he was not named as having taken part in the robbery. The testimony of Busumba Nyanda (PW.5) the commander of sungusungu bears this out. That is that only one person was named and that was the second accused at the trial, namely Mbigili s/o Ziliwa, the third appellant. The second appellant further stated that after a week he returned to the village and Was not arrested until 28.11.2001. He insisted that the delay in arresting him soon after the incident, shows that the identification of the suspected robbers was not correct. On his part, the third appellant, Mbigili Ziliwa, was emphatic that it was not true that he was identified at the scene of crime. He repeated his written ground of appeal that on the day of incident he was at Nyahongo Village working in a shamba where he was arrested on 13. 10.2001. .4 7 Responding to these submissions, Mr. Feleshi, learned Senior State Attorney, submitted that there was sufficient evidence to sustain the conviction against the appellants. First, according to him, the appellants were properly identified at the scene of crime on 11.10.2001. PW.1 and PW.2 were able to identify the appellants from the light of a lamp which was on. Second, the appellants were known to PW.1 and PW.2 before the robbery incident because they lived in the same village. Third, having identified the robbers, PW.1 also mentioned to PW.3, PW.4 and PW.5 four people among, whom were the appellants as the robbers. Fourth, as it took the bandits considerable time taking the various items, subject of the charge, PW.1 and PW.2 had ample opportunity to identify the appellants. Regarding the additional ground that the proceedings were vitiated because no preliminary hearing was conducted, Mr. Feleshi conceded that, no preliminary hearing had been conducted. However, he urged that in this case, it has not been shown that failure to hold -' I preliminary hearing occasioned a miscarriage of justice or that the appellants were in any way affected. We shall first deal with the ground relating to the preliminary hearing. As correctly conceded by Mr. Feleshi, learned Senior State Attorney, the record does not indicate that preliminary hearing was conducted at the commencement of the trial in this case. In this regard, we are also in agreement with Mr. Feleshi that it is not in every case that for some reason that preliminary hearing is not conducted that the entire proceedings are vitiated as urged in this ground. It is common ground that the preliminary hearing proceedings as provided: under Section 192 of the Criminal Procedure Act, 1985 (the Act) and the Accelerated Trial and Disposal of Cases Rules, 1988 were aimed at accelerating trials in criminal proceedings. This point was emphasized by the Court in Juma Lyamwiwe v. Republic, Criminal Appeal No. 42 of 2001, in Mkombozi Rashidi Nassoro v. Republic, Criminal Appeal No. 59 of 2003, 1. Joseph Munene 2. Ally Hassan v. Republic, Criminal Appeal No. 109 of 2002 (both unreported). It is therefore apparent that in a case where no preliminary hearing is conducted, then I the provisions of Section 192 of the Act do not come into play. In that situation, where it is shown that failure to hold preliminary hearing did not result to a miscarriage of justice or caused delay in the trial or extra costs to the appellant, the proceedings are not vitiated. In this case, we agree with Mr. Feleshi that failure to conduct the preliminary hearing did not in any way cause a miscarriage of justice. We find no merit in this ground. It is now appropriate for us to deal with the ground relating, to the identification of the appellants. This, it would seem to us is the major point that was buttressed by all the appellants that they were not identified at the scene of crime. It is therefore instructive to address the issue closely against the background of the evidence adduced at the trial as briefly outlined above. From the record and as the trial magistrate and the learned judge on first appeal found, the identification of the appellant is heavily , weighted on the evidence of PW.i and PW.2, man and wife, the occupants of the house raided. Therefore, the question is whether the p 10 appellants were properly identified at the scene of crime. As said before they vigorously assert that they were not. On this let us examine what PW.1 said at the trial: In part, he stated: "Immediately after I saw 5 bandits entering the house. In fact, I identified 4 people out of five. There was iight from kerosene lamp which was on at the time bandits entered. Those I identified, were: Mwale Mkwajape (not in court) Kuiwa Mkwajape (1 accused) (2fld accused) Bigili Ziliwa Simon Nyanda (3rd accused) PW.1 further stated: As they entered the I st accused, (the first td accused (third appellant in this appeal) and 2 11 appellant) each held a panga and a torch while 3rd accused (second appellant) held an iron bar. They all came straight to my bed and started cutting me with the pangas while demanding that I should give them all the money, I had. 1st accused was the first to cut my left leg. my father went and reported to sungusungu commander, Luzimya Malosha, who came to the scene and raised an alarm. Many people came to the scene of crime in answer to the alarm. I was asked. I named the bandits whom I have mentioned above". (underlining supplied) Similarly, PW.2, the wife of PW.1 who was awoken from sleep together with PW.2 also testified. In part, she said: 12 "I know all, the three accused persons in court. Bandits broke into our house ... I saw four of them entering our house. There was light from kerosene lamp which was on. I identified the four thugs with the help of the light. They were: Mwa!e Mkwajape (not in court) Kulwa Mkwajape (1 accused) (2nd accused) Bigili Ziliwa Simon Nyanda (3rd accused) The second accused (third appellant) held a panga and torch as well 1 accused. The third accused (second appellant) held an iron bar only. An alarm was raised and many people gathered at the scene. I saw PW.1 had cut wound on both legs. He also named all the above suspects in presence of many people". (underilning supplied) 13 From the extract of the evidence of PW.1 and PW.2, the following issues arise. One, the intensity of the light from the kerosene lamp which was on throughout the night when PW.1 and PW.2 went to sleep is not shown. The intensity and illumination of the lamp is important so that a clear picture is given of the condition in which the appellants were identified. On the other hand, even if it is accepted that the kerosene lamp was left on, it stands to reason that ordinarily when people go to bed leaving a lamp still on in the room, the wick of the lamp is left burning at a low illumination. In that situation it would appear to us that it is possible that when the bandits broke into the room of PW.1 and PW.2 the intensity of the light from the lamps was low. It would not facilitate an easy identification of the appellants. All the more so when PW.1 and PW.2 were suddenly roused from sleep confronted by armed bandits, who had torches. In these circumstances, it seems that the complaint that the conditions for proper identification of the appellants at the time were not favourable may well be founded. It is doubtful that the :1 - 14 appellants were properly identified as alleged by the appellants in this ground of appeal. We are constrained to observe at once that we are alive to the assertion of PW.i and PW.2 in their evidence that the appellants were known to PW.1 and PW.2 before the incident and that because of the proximity from where the invaders were PW.1 and PW.2 were able to see and describe what the appellants carried at the time. That may or may not be so. There is no gainsaying the fact that evidence of prior knowledge of the suspects is a relevant factor that facilitates the identification of the suspects. But this should not be considered in isolation from the pre-requisite requirement that conditions for the proper identification of the suspects are favourable. In the instant case, and as just shown, from the initial stage when the bandits struck, conditions for correct identification of the appellants were not favourable. The identification of the alleged bandits in such circumstances is doubtful. .6 15 As for the first appellant, there is the aspect pertaining to his arrest which also casts doubts on the credibility of PW.1 and PW.2. If as alleged by PW.1 and PW.2 in their evidence that they identified the appellants during the incident and they named them to the people gathered at the scene, the question is why the first appellant was not arrested the same night when the villagers had gathered in the presence of the village leadership and the People's MiUltia commonly known as sungusungu (PW.3, PW.4 and PW.5)? As claimed by the first appellant, the evidence clearly shows that he was arrested the following morning at 9.00 a.m. Having aftended the gathering at the scene of robbery in response to the alarm, if PW.1 and PW.2 mentioned that the first appellant was among the suspects, it raises doubt why he was not arrested there and then. In these circumstances, it is possible that the first appellant was not named at the gathering by PW.1 and PW.2. The fact that a: witness names a suspect at the earliest opportunity is an assurance of his veracity was underscored by this Court in Marwa Mwita v. Republic, Criminal Appeal No. 6 of 1995. unreported). Similarly in Aziz Athumani @ Buyogera v. Republic, Criminal Appeal - 4 16 No. 222 of 1994 (still unreported)the Court underscored the fact that unexplained delay in arresting a suspect casts doubt on the credibility of a witness. In the instant case, the delay in arresting the first appellant casts doubts on the credibility of PW.1. Furthermore, the posIbi.litythat_the_first_a.p.pel.lan.twas_not mentioned at the meeting by PW.i and PW.2 is also reflected from the evidence of Busumba Nyanda (PW.5) a commander of sungusungu. According to PW.5, PW.i mentioned only one suspect at the gathering at the scene or robbery. According to PW.5, the one suspect mentioned was the third appellant. This is distinctly in contradiction with the evidence of PW.2. PW.3 and PW.4. These witnesses categorically say in their evidence that PW.1 mentioned at the gathering four suspects out of whom were the appellants. If these witnesses were both present at the scene of robbery where the villagers had gathered, it is curious that they differ on who of the suspects were named by PW.1. With such discrepancies unresolVed on an important aspect of the evidence against the appellants, the court is left in doubt as to who among the witnesses is truthful. It leaves room for doubt that the identification of the first 17 appellant can hardly be said to be watertight. It was pegged on the evidence of PW.1 and PW.2 which, has just been shown to be flawed with discrepancies. Therefore it would follow that the condition for correct identification in relation to the first appellant at the time of the incident was unfavourable. We now turn to the second appellant, Salmon Nyanda. We think with respect, that there is merit in his ground of appeal that he was also not properly identified on the night of the incident at the scene. According to Busumba Nyanda (PW.5), the commander of sungusungu, PW.1 only mentioned the third appellant, Mbigili s/o Ziliwa, who was the second accused at the trial. From the evidence of PW.5 that the second appellant was not named at the scene of the robbery, then it seems that the second appellant's claim that he was away from the village on the day of incident is plausible. The fact that he returned to the village after a week and was not arrested until: 28.11.2001 also lends support to the claim that he was not identified among the robbers at the time. Otherwise we can hardly find any reason why he was not arrested all this time until 13.11.2001. According to the second: UP appellant he had since remained in the village throughout before his arrest. Unexplained delay in arresting a suspect, the appellant in this case, casts doubt on whether it was known from the time of the incident that the second appellant had been mentioned by PW.1 and PW.2 at the village gathering. We think there is still a lingering doubt which was _unreso]Yed._______________________________________________________________ Finally, we shall look at the evidence relating, to the third appellant, Mbigili s/o Ziliwa, who was second accused at the trial. Throughout the trial and even on first appeal in the High Court he had maintained that he was not properly identified. He raised the defence of an alibi that on the day of incident he was away in Nyahongo Village working in a cotton shamba belonging to one Mazoya Ludaya (DW.4). He was supported by his employer (DW.4) that from 9.10.2001, he was working at his shamba until 13.10.2001 when he was arrested there. From the record, it occurs to us that the trial court as well as the High Court merely rejected his defence. With respect, we think, given the circumstances of the case, the third appellant's defence was plausible sufficient to raise doubt on the prosecution case against him. 19 All in all therefore, we are increasingly of the view that had the learned judge on first appeal analysed and addressed these aspects relating to each of the appellants, we think with respect, he would have come to the conclusion that it was doubtful that the identity of the apelIants had beapsoed_beond_any_LeasonahJe_doubtrt_be.jpg criminal charge, the doubt should be resolved infavour of the appellants. Consequently, for the foregoing reasons, the appeal is allowed, conviction quashed and sentence set aside. The appellants, Kulwa sb Makwajape, Saimon Nyanda and Mbigili Ziliwa, are to be released from custody forthwith unless otherwise lawfully held. DATED at MWANZA this 16th day of March, 2007. 20 D. Z. LUBUVA JUSTICE OF APPEAL J. A. MROSO JUSTICE OF APPEAL E. M. K. RUTAKANGWA JUSTICE OF APPEAL I certify that this is a true copy of the original.