20080930 TZCA Tabora4

- .1 IN THE COURT OF APPEAL OF TANZANIA ATTABORA (CORAM: RAMADHANI, C]., MROSO, J.A. And MUNUO, J.A.) CRIMINAL APPEAL NO. 282 OF 2005 MICHAEL LEMBERI MASOLWA @ MICHAEL PLANTIN HASSAN MSABAHA @ ADAM ALLY MAGOGWA © MUHA BAHARIA............ APPELLANTS CHARLES HAMIS S. HARUNA MRISHO © SAID VERSUS THE REPUBLIC ...........................................••.. RESPONDENT (Appeal from the Conviction of the High Court of Tanzania atTabora) (Bubeshi, 3.) Dated the 251h day of June, 2004 in HC Criminal Sessions Case No. 7 of 1997 JUDGMENT OF THE COURT 23 & 30 September, 2008 MROSO, 1A.: The five appellants were all convicted of murder contrary to section 196 of the Penal Code, Cap. 16 of the Laws, Revised Edition, 2002. It had been alleged against them that, acting jointly and together, they murdered an army officer, a Lieutenant (Lt.) P.8117 2 L.K. Nyamoka, at the Tabora Railway Station during the night of 31s t August, 1994. According to PW1 - Warrant Officer II (W.O.II) Dishon Masai Hosena, the deceased had accompanied the dead body of an army man from Dar es Salaam to Tabora for burial. On the same day after the burial he was to board a train to Mwanza and, thereafter, proceed to Musoma. At about 9:45 pm of that day he traveled to the Railway Station in a motor vehicle in the company of another army officer, Lt. Kimwaga, and W.O.II Hosena (PW1), among other people. At the Railway Station, just before he boarded the train, he was shot dead and Lt. Kimwaga was also shot at but he survived. Apparently, there was a lot of shooting around to cause a scare and panic at the Railway Station. On hearing the shooting W.O.II Hosena who had escorted his wife to board the train, quickly pushed his wife into a second class compartment and, just as quickly, took cover under the train carriage. While hiding under the train he claimed he saw the first appellant, who was only eight paces away, shoot at and kill Lt. 3 Nyamoka. There was utter pandemonium at the Railway Station and, according to W.O.II Hosena, it was like a battlefield. The deceased was carrying a black brief case which immediately disappeared after he was shot dead and it was never recovered. The appellants were among several suspects who were arrested. The first appellant was arrested on 29th September, 1994, th the second on 301h September, 1994; the third on 26 September, 1994; the fourth on 291h September, 1994 and the fifth on 28th September, 1994. It is apparent, therefore, that the suspects who were charged with the murder of the deceased were arrested at least 26 days after the murder. Two of them, the first and second appellants, were identified at an identification parade at which they were paraded along with 14 other people. It was PW1 - W.O.II Hosena, who identified at the parade the first appellant only. Lt. Kimwaga who did not give evidence at the trial, was said to have identified the first and second appellants at the parade. In the course of trying the case disputed caution statements taken from the respective appellants were admitted in evidence after a trial-within-a trial in each case. In the end, the trial court believed the confessions which implicated each of the appellants and also the evidence of identification regarding the first and second appellants and convicted as charged all the appellants, notwithstanding that they all either repudiated or retracted the confessions in their respective caution statements. Feeling aggrieved by the conviction and the sentence of death meted on them, the appellants lodged an appeal to this Court All the appellants were represented at the hearing of the appeal by Mr. Musa Kwikima, learned counsel, who also represented them at the trial. The respondent Republic was represented by Mr. Fredrick Manyanda, learned Senior State Attorney. On behalf of the appellants, Mr. Kwikima listed four grounds of appeal but the first two grounds are crucial. In the first ground it is complained that the trial court did not seek and obtain corroborative evidence before convicting the appellants on the basis of the repudiated or retracted confessions. The second ground is that the evidence of identification was relied upon without taking into account that the fatal attack on the deceased occurred at night and at a 5 crowded railway station. The third ground of appeal is that the police did not adduce evidence which was weighty enough to sustain a conviction. Finally, the fourth ground is that the judgment of the court was based on poor evidence which could not found a conviction. It is evident that during the night of 31 of August, 1994 an armed robbery was committed at the Tabora Railway Station. To facilitate the robbery an army officer was shot at and killed and another officer was shot at in the stomach but survived. The shooting incidents occurred at a time when there were many people at the railway station, some boarding the train, some people had escorted those who were travelling, others predictably must have been petty traders and other casual visitors to the railway station. The immediate question is whether those who perpetrated the murder were any or all the appellants. Mr. Kwikima submitted that none of the appellants were involved in the killing. Mr. Frederick Manyanda on his part submitted that he supported the appeal in respect of the first appellant but supported the conviction of the rest of the appellants. We think that before we consider whether any of rel the appellants was or was not properly convicted as charged we should lay down the relevant law and principles applicable in this appeal. In convicting the appellants the trial judge found that evidence of identification implicated the first and second appellants. He also found that all the appellants had made confessions in which they implicated themselves and each other. However, all the confessions were repudiated and or retracted. Notwithstanding that the confessions were repudiated and or retracted, the trial judge acted on them and based a conviction for murder on them. PW1 - W.O.II Hosena - claimed that he saw the first appellant shoot at and kill the deceased, Lt. Nyamoka. That is what is known as visual identification. This Court has made certain pertinent observations regarding this mode of identification. In the case of Waziri Amani v. Republic, [1980] TLR 250 at pages 251 - 252 the following observation was made:- the evidence of visual identification, as Courts in East Africa and England have 7 warned in a number of cases, is of the weakest kind and most unreliable. It follows therefore that no court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight." Thus, before a trial judge can come to any definite conclusion on the issue of identity, he should consider the following among many other factors. He must consider for example the kind and quality of light that enabled a witness to identify the suspect, the length of time he had him under observation, whether the suspect is familiar to the witness, the prevailing circumstances, that is to say, whether it was a moment of quick action and whether the suspect was among many or a few other people. The Court should also consider whether the witness of identification has given evidence soon after the event necessitating identification or there has been a long lapse of time since the event occurred. In dealing with the evidence of PW1 who claimed to have identified the first appellant as the person who shot at and killed the deceased the trial judge recounted the following aspects of the evidence of PW1:- that the first appellant wore a black jacket, black trousers and a red T-shirt; that the first appellant was 8 paces away from him and the area was well lit from bright lights. PW1 identified the first appellant at an identification parade. The trial judge then drew the conclusion that the identification of the first appellant "was sufficient to link him with the fatal shooting of the deceased." But, with respect, the witness had made no meaningful description of the person he claimed he saw shoot at the deceased. A mere description of clothes does not suffice unless the suspect is found with clothes of the description as given by the witness soon after the event, not to say that many people may have black trousers, a black jacket and a red T-shirt. The circumstances prevailing at the railway station at the time do not give assurance that PW1 really saw the person who shot at the deceased. The witness said - we went towards the carriages. My wife was going to the 2nd class compartment. The deceased and Lt. Kimwaga were traveling first class. Before reaching the carriages suddenly I heard gun shots. I pushed my wife inside and took cover underneath the train. Then another gun shot was heard. I discovered that I was now on the battle field as a soldier. I looked around at the lit area ..... I could recognize one person who had a SMG who was firing backwards and forwards scaring people ..... The first shot injured the deceased Nyamaka. Several gunshots followed." It is obvious that if the first shot hit the deceased, PW1, according to the above narration, could not have seen the person who shot the deceased. The first thing, he heard gun shots. He did not say he saw somebody shoot. As soon as he heard the "sudden gunshots" the first preoccupation of the witness was to push his wife into the second class compartment and then quickly took cover under the train carriage. The continued sound of gunshots was not a situation which was conducive to a person who ducked for his dear life to the undercarriage of the train to make a reliable observation of 10 - the person who was firing in all directions, particularly with the resulting commotion. Since visual identification in circumstances as described by PW1 is notoriously susceptible to error, we think the trial judge too hurriedly found that PW1's evidence of identification was reliable without warning himself of the inherent weaknesses in it. The witness had not seen the first appellant before and the fact that he picked the appellant at the identification parade does not give the required assurance. Lt. Kimwaga who was said to have picked the first appellant at the identification parade did not give evidence and therefore the trial court could not ask him on what basis he identified him. We think, therefore, that the safeguards for reliable visual identification which were given in Waziri Amani had not been met and the trial judge should have discounted the evidence of identification relating to the first appellant. One may also be forgiven to ask that if the first appellant was identifiable as claimed by PW1, why did it have to take nearly a month for the first appellant to be arrested? It was not suggested that that appellant was missing from his home or from the town for all that period. 11 The only other evidence relied upon by the trial court was the caution statements of the second to fifth appellants. In each of the caution statements of those appellants the first appellant was cited as a participant in the conspiracy to stage a robbery in which the deceased was killed. Of course all those appellants either repudiated or retracted their caution statements. Before we consider the law on the status of repudiated and retracted confession, we wish to discuss, albeit briefly, some glaring factual contradictions in the caution statements which cast grave doubts if those statements were voluntary and true. Although as mentioned at the beginning of this judgment that the deceased accompanied the dead body of an army soldier from Dar es Salaam to Tabora for burial, the fourth appellant Charles Hamisi is recorded in his caution statement to have said the conspiracy to rob the deceased was hatched on 24th August, 1994, that is a whole week before the robbery occurred. This was because it had been known that the deceased would come from Dar es Salaam to Tabora and would be carrying a lot of money destined for 12 Mwanza. Logistics for the robbery on 31 st August, 1994 were planned on 25 th August, 1994. Is this credible? Did the supposed conspirators know who would escort the body of the dead soldier seven days ahead? On the day of robbery the first appellant put on shorts, not black trousers as testified by PW1. The robbers had two SMG weapons, not an SMG and a shotgun as claimed by PW1. The brief case was broken open at a Tobacco godown and 150,000/= was found in it. According to that statement, it was the first appellant who fired at the deceased. However, according to the caution statement of Haruna Mrisho (5th Appellant), it was Charles (41h Appellant) who gunned down the deceased and the first appellant made away with the briefcase. This story from the 5th appellant's caution statement is contradicted by that of the second appellant, Hassan Msabaha in which it was said the first appellant shot at both the deceased and Lt. Kimwaga and the fourth appellant was the one who took the briefcase. According to this statement the briefcase was broken open at abandoned railway wagons along the Mwanza line and not in a Tobacco godown as claimed above. 13 The caution statement of the second appellant claims that the mastermind of the plan to stage the robbery was Ally Magogwa (the third appellant) whereas, according to the caution statement of Ally Magogwa himself, the mastermind was an army man, one Hassan Ramadhani of 125 KJ at Mirambo Barracks. And yet again, according 4th Appellant) the to the caution statement of Charles Hamisi (the robbery was the brainchild of an army man, Pius Ally. Those are only some of the glaring contradictions in the caution statements. For people who were supposed to be active participants in the conspiracy to commit robbery, those contradictions are significant and a credible indication that this particular conspiracy may have been a figment of the imagination of some investigating officers. This now brings us to a discussion of the effect of the repudiation and or retraction of the caution statements by the supposed makers thereof. It is common knowledge in our criminal justice that although the courts can act on retracted or repudiated confessions, they must be satisfied first, that they are voluntary and, second, that they are 14 * true. That practice has been stated and restated in many decisions of the superior courts in the country and elsewhere in East Africa. First there is the celebrated decision in Tuwamoi v. Uganda [1967] EA 84; Hatibu Gandhi and Others v. R [1996] TLR 12, to mention only two such cases. The learned trial judge cited these cases and the legal principles in those cases. Unfortunately, he did not properly apply the principles enunciated in those decisions. All the appellants complained that they were tortured before and after being forced to sign those statements. Some claimed they never made those statements which were imputed to them notwithstanding that they signed on documents whose contents they did not know. The trial judge conducted trials within trials before deciding to admit them into evidence and holding them voluntary and true. However, had the learned judge noticed the contradictions in those statements she might have found it prudent to look for corroborative evidence. She would not have found any corroborative evidence and, therefore, would have found the repudiated and or retracted confessions unsafe evidence to rely upon in deciding on the 15 guilt of the appellants. She would have followed the wisdom of the two assessors who advised that the appellants be acquitted. We agree with both Mr. Kwikima and Mr. Manyanda that the appeal by the first appellant be allowed. But we do not end there. We are of the considered opinion, and as urged by Mr. Kwikima, that it is unsafe to uphold the conviction for murder of the rest of the appellants. In the result we quash the conviction of all the appellants and set aside the death sentence imposed on them. Finally, we order that they be set free forthwith unless they be held for some other lawful cause. It is so ordered. GIVEN at TABORA this 30th day of September, 2008. A. S. L. RAMADHANI CHIEF JUSTICE J. A. MROSO JUSTICE OF APPEAL • • :f / I / • I j E. N. MUNUO JUSTICE OF APPEAL I certify that this is a true copy of the original. (P.B.K ) DEPUTY REGIRAR