20070827 TZHC Mbeya

.... ----,,J,... ~L IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: L.UBUVA, J.A NSEKELA, l.A. AND MBAROUK, l,A.) CRIMINAL APPEAL NO. 194 OF 2006 G.IBSON MADEGE .............................. ~ ...................... APPELLANT VERSUS THE REPUBLIC ......................................................... RESPONDENT {Appeal from the decision of the High Court of Tanzania at Mbeya) (Mwipopo , l.) Dated the 3 rd day of February, 1999 in (DC) Criminal Appeal No. 61 OF 1997 JUDGMENT OF THE COURT 22 nd August & 10th September 2007 LUBUVA, l.A.: The appellant, Gibson Madege was charged in the District Court of Njombe at Njombe with and convicted of the offence of armed robbery contrary to sections 285 and 286 of the Penal Code. He was sentenced to the prescribed minimum sentence of 30 years term of imprisonment. The High Court, sitting at Songea, (Mwipopo, J.) dismissed the appeaL The- appellant has now come on appeal to this Court. 1 ;, •r· ••~ .~ .. . :- At the trial District Court, the facts as established though lengthy and rather involved, may be stated as follows. Tarcic Moresch (PW 1) was the Parish Priest of Mtwango Parish within the Arch- Diocese of Songea in Njombe District. On 1.1.1996, at about 9 pm. When PW! was in the parish residential house at the sitting room, he was invaded by a group of thieves. The door of the house was broken and the thieves got into the house. One of the thieves ·was armed with a pistol which was fired. PW! struggled with the thieves but was overpowered after he was shot in one of his hands which was wounded. The thieves were demanding money and gold from PW!. PW! gave shillings 600,000 /- and was forced to show them the ignition switch of the motor vehicle and the key for the gate. The thieves ransacked the house and in the process, an assortment of various household articles were stolen including ,.. ·-· a welding machine and a Video TV set and radio. They fled with the items driving away the Double Cabin Toyota motor vehicle which was eventually·- abandoned at Makambako. It was claimed by the prosecution that the appellant was one of the thieves. 2 , ...· The matter was reported to the police and other law enforcement agencies. Investigation was carried out resulting in the arrest of the appellant who was charged and convicted. At the trial, the prosecution case was essentially based on the evidence of the Parish Priest (PWl) and Tanala Igonda (PW3), a watchman at the Parish. According to PWl, during the incident, he identified the appellant among the bandits. There was electric light in the house and the room in which PWl was sitting when the incident took place. So, PWl was in a position to see and identify the appellant, who was referred to as the "boss 11 among the invading bandits. PWl further testified that it was the appellant who was giving orders to the other bandits to shoot PWl or to do whatever they were directed to do in the course I!' of the . robbery.·- Throughout . · - .... - . -- -. the cross examination by the appellant, PWl stood firm stating that he identified the appellant because he saw him and not because he was told by the police. The incident took about 45 minutes during which time, PWl had the opportunity of seeing the appellant. What 3 is more,·it is to be observed that PWl identified the appellant during the identification parade. On the other hand, PW3 also gave pertinent evidence which implicated the appellant. He was a watchman of the Parish. In his evidence, he says during the invasion he was in one of the rooms within the Parish house compound. He heard the voice from the thugs saying "wee kizee kaa chini" meaning "you, old man sit down". The thungs called out, ordering him to give them the key for the gate or else they would force the door open. PW3 threw the . key to the thugs who opened the gate, re-filled the motor vehicle at the Parish compound and fled with the car. By aid of the light at the compound, PW3 was able to identify the appellant among the bandits. The appellant denied any involvement in the robbery. He raised the defence of alibi claiming that he was at Igurusi on 3/2/1996. This date, it will be observed, has nothing to do with the date when the incident took place on 1.1.1996. 4 • I " The learned trial magistrate rejected the defence raised by the appellant. The reason among others, was that section 194 (4) and (5) were not complied with. The appellant was convicted. The appellant who was unrepresented in this appeal firmly maintained that the case against him had not been proved. He said PWl was in a confused state of mind after the injury sustained. Therefore, the appellant insisted, it being night time, PWl was not in a position to identify him (appellant) properly. He cited the case of Waziri Amani V Republic [1980] TLR 250 to support his claim that the conditions at the time were not favourable for the proper and reliable identification of the appellant. The tests laid -in that case were not satisfied, he insisted. The appellant also challenged the reliability of the evidence of PWl and PW3. First, he said PWl was unreliable in identifying the appellant because when cross- examined, PWl admitted that he could not identify the appellant if placed among many people. With 5 .. ' : regard to PW3, the watchman, his evidence was not reliable because he did not give the descriptive features of the appellant to the police. In this appeal, the respondent Republic was represented by Mr. Malata, learned State Attorney. He did not support the conviction. The main ground for not supporting the conviction was that in his view, PWl was unreliable as regards the identification of the appellant. The reason he said was that, PWl said if the appellant was placed among many other people, he would not be able to identify him. Furthermore, the Attorney also had some reservation on PWl's failure to give the description of the appellant to the police. However, when pressed by the Court, the learned State Attorney conceded that if the evidence of PWl and PW3 was believed as truthful by the trial court, the conviction against the appellant could be sustained. The only issue in this appeal is whether the appellant was identified at the scene of crime. The evidence implicating the appellant is that of the Parish Priest (PW1) and the watchman (PW3). 6 L These were the eye witnesses to the incident. At the time of the jncident, there was light in the room of PWl who saw the appellant among the bandits. Being the "boss" of the invading bandits, PWl saw the appellant giving orders to the rest of the bandits. Not only was there light in the room of PW1, the incident look about 45 minutes ransacking when the bandits were ransacking PWl's room and the rest of the house. So, in our view, PW1 had ample time to watch and observe the attackers, one of whom was the appellant. We do not see any difficulty arising from the fact that PW1 said if the appellant was placed among many other people, he would not identify him. This is so because, for one who has not dealt with an individual before, it is not surprising to say so. All the more so, for people who resemble each other. In this case however, PWl was emphatic that the-appellant was the one he saw during the incident. -~ . He was the "boss" of the nasty robbery incident at the time. Furthermore, PW1 is supported by PW3, the watchman. PW3 too, clearly-·said he saw and identified the appellant prior to the time when he threw to the bandits the gate key and thereafter, when they 7 were refilling the motor vehicle at the compound and drove away. There was light which enabled PW3 to see the bandits. Considering the whole evidence adduced at the trial, PWl and PW3 being the eye witnesses to the incident who were believed as truthful by the trial court and the first appellate High Court and , the futile irrelevant defence of alibi raised by the appellant, we are of the settled view that the appellant's conviction was justified. He was properly identified and that the tests laid in Waziri Amani (supra) were satisfied. We find no ground for interfering with the finding of fact as found by the trial Court supported by the learned judge on first appeal. For these reasons, we find no merit in this appeal. It is accordingly dismissed in it's entirely. 8 1/ DATED at MBEYA this 2ih day of August, 2007. D.Z.LUBUVA JUSTICE OF APPEAL H. R. NSEKELA JUSTICE OF APPEAL M.S. MBAROUK JUSTICE OF APPEAL I certify that this is a true copy of the original . ~A YIKA) REGISTRAR 9