joseph so maganga ntuga others vs republic 2007 tzhc 417 7 may 2007

IN THE HIGH COURT OF TANZANIA AT TABORA, APPELLATE JURISDICTION (Tabora Registry) (DC) CRIMINAL APPEAL NO. 181 CF, 182 -183 OF 2005 ORIGINAL CRIMINAL CASE NO. 79 OF 2004 OF THE DISTRICT COURT OF TABORA DISTRICT AT TABORA. Before: A.M. FUNGO, Esq.; RESIDENT MAGISTRATE JOSEPH s/o MAGANGA @ NTUGA &OTHERS................... APPELLANTS (Original Accused) Versus REPUBLIC.......................................................................................RESPONDENT (Original Prosecutor) JUDGMENT 14th June, 06 & 7th May, 07 M U JU LIZIJ. Before the District court of Tabora, it was alleged that on the 28th day of April, 2004 at 20.45 hrs, a gang of armed bandits knocked at the door of the residence of one Nasibu s/o Msazi @ (Chang’anda (P.W .l) situate at Ipuli within Tabora Municipality. According to Margreth Tegamagwa, PW.2, P W .l’s wife, she is the one who opened the door after one of the bandits had fooled l her that he had come to see her husband in the normal course, but later on another person followed behind and put her under custody. Immediatey, PW2, Issa Jaffari a relative of P.W. 1 who was residing in the same house came out only to realize that they had been invaded by bandits who were demanding for money. PW1 on realizing what the bandits wanted and in order to save the life of his wife handed the sum of Tshs. 518,000/= to the bandits who disappeared. Later neighbors came to the scene and the matter was reported to the police. There were no immediate arrests. According to the story narrated by PW.4 Salum Mussa, a businessman of Kiloleni area in Tabora Municipality, on the 2nd day of April, 2004 at 5.00 pm, while at his business premises, he saw two people struggling as if they were fighting. One of the persons was the 1st accused, Kulwa s/o Mussa @ Nassoro the 2nd Appellant herein and the other was PW.l. The accused was, according to the witness, resisting to go to the police. The accused started beating PW.l prompting PW4, a ten cell leader, to blow a whistle, whereby people gathered prompting the accused to run into a house wherein he was subsequently arrested by the police. But, according to PW.5 the arresting police officer, Yahya Adam Mdogo, he only received a call from Pw.l on 1st May, 2004 informing him that his assailant had been seen at Burudani Guest house, whereto they proceeded and managed to arrest the accused- the 2nd Appellant herein. None of the five (5) prosecution witnesses testified as to how, when, where and based on what; the rest of the accused persons j who were subsequently charged together with the 2 Appellant were arrested. But, what is clear, in a series of substitutions and cancellation of charges other people were arrested and charged with the offence of armed robbery c/ss 285 and 286 of the Penal Code in relation to the incident alleged to have taken place on the 28th day of April, 2004. But, by the time the case went to trial only 4 persons remained to the charge. The 4th accused Juma s/o _ j Mahinda @ Masanja was discharged. The 2 Accused Ally s/o Idd @ Mayunga the 3rd accused, is the 1st Appellant herein. At the close of the trial, all three appellants were found to be guilty of the offence of Armed Robbery c/s 285 and 286 of the Penal Code, Cap. 16 and sentenced to serve a 30 years jail term each. Each of the Appellants filede a separated petition against both conviction and sentence. The Appeals were consolidated. At the hearing all appellants appeared in person and adopted their respective petitions. The Republic was represented by Mr. Lukosi, learned State Attorney. The Republic does not support the conviction. They have adopted and support the two basic grounds common to all the Appellants, that; a) the identification of the Appellants at night using tube light, when the three prosecution witnesses PW .l, PW.2 and PW.3 who were seeing the assailants for the first time, needed corroboration before convicting based solely on such testimony. There was no such corroboration. b) There is no evidence that there was any prior description of the identity of the suspects before the witnesses laid their eyes on the Appellants after their arrest. In relation to the 3rd Appellant, Ally Iddi, he was convicted and sentenced in absentia. Upon his arrest he was imprisoned to serve sentence without being accorded the right to be heard to explain his absence. The learned State Attorney argued that this was contrary to section 226 (2) CPA. (Cap.20 R.E.2002). According to the record the 3rd Appellant’s alleged abscondment happened immediately after the Preliminary Hearing had been conducted. At the hearing and owing to the possible difference in approach between Ally’s appeal and the other appellants who underwent full trial, I ordered a separate hearing. But at the end of the day and for reasons that will come out clearly herein, I found that it won’t be necessary to hand out a separate judgment, for Ally’s case. The Republic is correct in not supporting the conviction and sentence. All grounds challenging the conviction based on identification are well founded. In Mohamed Alhui V. Republic (1942) E.A.C.A VOL. 9, 72 it was held that identification by a witness should be by description of what he or she saw. Early description of a suspect prior to identifying him by way of physical markrs, build, weight, height, ' dress or other special peculiarities is mandatory; ABUSHIRI AMIRI V. REP (1992) TLR. 178, RAYMOND FRANCIS V.R. (1994) T.L.R. 100. As I have already narrated, from the alleged story as told by the 5 prosecution witnesses none of the procedures laid out above was said to have been followed. No evidence was lead by the prosecution to show how, apart from the 2nd Appellant, the other appellants were ever connected to the charge. As it is, all we know is that the three witnesses PW.l, PW.2 and PW.3 who were at the scene of the crime only aqppeared in Court at the time of trial and pointed at the accused persons in the dock saying “ I, identified you and you.” Be as it may, it is • rrl clear that no evidence whatsoever was adduced as against the 3 Appellant Ally Idd. It is for this reasons that I decided not to render a separate judgment for this Appellant. Indeed the learned State attorney is right in supporting the 3rd Appellant’s complaint that he was arrested and siphoned off to serve sentence without being accorded opportunity to explain his absence, a condition which would entitle him to a reopening of his trial. Section 226 -CPA -Cap .20 R.E. 2002 provides; “226(1) I f at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the Court in which o f adjournment was made, it shall be lawful fo r the Court to proceed with the hearing or further hearing as if the accused were present:.. (2) I f the Court convicts the accused person in absence, it may set aside the conviction, upon being satisfied that his absence was from causes over which he had no control and that he had a probable defence on the merit.” The court of Appeal of Tanzania has had opportunity to interpret the scope of this section. In OLONYO LEMUNA & LEKITOI LEMUNA V.R. (1994) TLR. 61 it was held; “It is our understanding that unlike section 227 which covers proceedings from the stage after the close o f the prosecution case, section 226 (2) enables proceedings which were proceeded with to conviction from the stage before the close o f the prosecution to be re-opened if the Court is satisfied that the accusedys absence was justified. In these circumstances we are satisfied that the justice o f the case would be met if discretionary powers under the provisions o f subsection 2 o f section 226 o f the Criminal Procedure Act, 1985 were invoked. That is, to have the case re-opened in terms o f the provisions o f this section whereby if the Court is satisfied that the Appellant had justifiable reasons for his absence it could hear his (Appellants) defence. The right to be heard is a cornerstone principle o f justice t It is clear therefore, that the trial Court in this case erred in law in committing the 3rd Appellant to prison to serve his sentence without first according him opportunity to explain the reason for his abscondiment. The proper remedy would, in a fit case be, to remit the matter to the trial Court to exercise that power. But the circumstances of this case are that, no scintilla of evidence was adduced to connect the Appellant to the charge. In the circumstances, had the trial Court directed itself properly, on the evidence adduced before it, it would have Ruled that the Prosecution had not made out a prima j facie case against the 3 Appellant. I am satisfied that there was simply no evidence and there is none onrecord to justify the 3 Appellant to be called to set up his defence. I therefore proceed to acquit him of the offence with which he was charged and convicted, and set aside the sentence. Indeed as I have narrated herein before, there was a big discrepancy in many material particulars which, if the trial Court had been kin enough would have not justified a conviction on the charges at all. The offence is alleged to have been committed on 28th April, 2004. Yet the 2nd Appellant, on whom there is evidence of arrest, was arrested on, according to PW.4 on 2nd April, 2004 at 5.00pm. But, PW.5 puts the date of arrest on 1st May, 2005. Assuming that the trial magistrate erred in recording the date and that PW.4 meant nd • 2 May, 2004, still there remains difference of the months. PW.3 also points to the 1st Appellant as having been the suspect who knocked at the door and entered claiming to be the guest of PW .l. According to her, it is the 1st Appellant who entered first and had a gun but immediately ordered her to lie down and started to beat her. But, later on she says it was the 2nd Appellant who entered first. According to all their testimony it is not easy to establish as to how many bandits entered the house. From the answers in cross examination at page 6 of the typed record PW.l seems to suggest that there were three bandits. However, the record shows that more than 6 suspects were arraigned and charged with the same offence. In the absence of an identification parade, this lives lingering doubts as to whether the Police had investigated the case at all. But what is more PW.3 at page 9 of the typed record says: “ After five days had passed I met the 2nd accused and Nasibu tried to arrest him. He ran away the police were informede after he ran and hid in one house. The police arrived and arrested him. ” Let us assume for a moment, that PW.3 is referring to the same person as PW.4 and PW5, PW.4 and Pw.5 refer to this person as the “ 1st accussed.” But both differ on the date of arrest. The third accused puts the date of arrest to 5 days after 28/4/2004. That would not by any means be the 1st of May as suggested by ^either PW5 nor the 2nd of May as testified by Pw4. This, combined with the testimony of D.W. 1 and D.W.3 as to the date and time of their arrest, ought to have opened the trial Court toreasonable doubts. This doubt ought to have been resolved to the benefit of the accused persons. In the foregoing circumstances the prosecution failed in their duty to prove the charges against each one of the accused severally, and not to lump them together with a series of disjointed testimony. There was simply no evidence adduced to connect the Appellants to the charged offence. I therefore quash the conviction, set aside the sentence and substitute it with an order of acquittal. The appeals succeed. Appellants should be released forthwith unless they are held for other lawful custodial orders. A.K. MUJULIZI JUDGE 7/5/2007 Judgment read in the presence of the Appellants and the Republic represented by Mr. Manyanda learned State Attorney. A.IV. IVlUJULlZil JUDGE 7/5/2007 ll