20090519 TZCA Dar es Salaam 1

IN THE COURT OF APPEAL OF TANZANIA .'1 AT DAR ES SALAAM (CORAM: MSOFFE, J, A, MBAROUK, J, A, AND ORIYO, J, A.) CRIMINAL APPEAL NO. 84 OF 2006 FABIAN ALBETO@ TESTA ............................................. ~ ... APPELLANT VERSUS THE REPUBLIC ............................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es salaam) ( Mlay, J.) dated the 22nd day of February, 2006 in Criminal Appeal No. 64 of 2005 JUDGEMENT OF THE COURT 13 th May, & 21 st 2009 MBAROUK, J.A.: The appellant Fabian Alberto @ Testa and five others were charged before the District Court of Kinondoni at Kinondoni, in Criminal Case No. 327 of 2003 with the offence of armed robbery contrary to Sections 285 and 286 of the Penal Code Cap. 16 of the laws. At the trial court four among the six accused persons were 1 acquitted after being found to have no case to answer. The appellant ,7 th (4th Accused) and the other accused person (6 Accused), who was convicted in absentia, were the only ones found guilty as charged. They were both accordingly sentenced to thlrty (30) years ! imprisonment with 24 strokes of the cane. The appellant's appeal to the High Court (Mlay, J.) was dismissed. The appellant has now preferred this second appeal against conviction and sentence. Briefly stated, the facts giving rise to the case are as follows:- On 21.2.2003 at 9.00 p.m Magdalena Charles (PW.1) was in her shop doing business, with her sister Upendo Charles (PW2). Then four persons entered the shop asking for phone cards worth T. Shs. 10,000/=. PW2 suspected the customers and henc~ warned PW 1 through their vernacular language to be aware of them, and take custody of the money. Both PW1 and PW2 identified the appellant and the 6th Accused through the lights inside and outside the shop. After the alarm given to her by PW2, PW1 asked the culprits to move I I to Mikumi Bus stop and get the phone cards. Therea~er the culprits i closed the door of the shop and asked for money. PWl showed them the money and phone cards in the drawer. They took T.Shs. 2 479,500/=, two Nokia 3310 hand set worth Shs. 250,000/=, PWl's · black handbag worth Shs.85,000/= with cash money Shs. 250,000/=, two cash books and two boxes of stationeries for sale. The culprits also took the NMB identity cards from PWl and PW2. The total value of the items stolen was T. Shs. 939,500/=. After the robbery PWl and PW2 screamed for help, but the culprits shot bullets in the air to scare people. Thereafter, the culprits got in and· drove away in a saloon car, and people could not turn out to give them help. On 2.3.2003, PW1 went to the· Magomeni Police Station where she was asked to identify the arrested culprits in an identification parade. She managed to identify the appellant and the 6th Accused. She could easily identify the appellant because he was the one who held PW2 on her neck and took her ear rings. She also managed to identify the 6th Accused because he was the one who was taking the money from the drawers. The appellant· and five others were then accordingly charged. In this second appeal, the appellant appeared, in person and Ms. Evelyne Maka la, learned State Attorney,. represented the 3 respondent Republic. The appellant's memorandum of appeal contained the following five grounds:- (1) That, the trial magistrate and the High Court Judge erred I in law when they convicted the appellant relying on the identification evidence of PWl at the scene of the crime without considering the circumstances under which she identified the appellant. (2) That, the trial magistrate and the first ,appellate judge erred when they convicted the appellant relying on the same evidence of PW2 who was the younger sister of PWl. (3) That, the trial Magistrate and the High Court judge erred when he relyed on the evidence of prosecution witnesses who did not give any description of the robbers. - (4) That, the trial Magistrate and the High Court judge erred in law when they rejected the defence exhibit of PF 3 I 4 filled by a qualified doctor proving the appellant's torture before he wrote the cautioned statement. (5) That, the trial Magistrate and the High Court judge erred when they accepted the evidence of a,n identification· parade contrary so the requirements of Police General Orders (PGO) 231. At the hearing, the appellant opted to submit an additional ground of complaint that the Principal District Magistrate (PDM) who conducted the proceedings of the case had no jurisdiction, because the case was filed in the Resident Magistrate's Court registry and not in the District Magistrate's Court registry. On her part, Ms. Makala, supported the conviction and sentence. Reacting on the additional ground concerning jurisdiction, the learned State Attorney, submitted that the appellant's ground of complaint has no basis, because the original file shows that, the case was filed in the District Magistrate's Court registry and not at the Resident Magistrate's Court registry. She added that, the 5 ' Magistrate's Court Act, 1984 gives District Court: jurisdiction to hear Armed Robbery cases. Hence, Ms. Makala submitted that the additional ground has no merit. As urged by the learned· State Attorney we find the additional ground without merit, because, the research we have made has shown that, the original Criminal case No. 327 of 2003 was filed in the District Court Kinondoni at Kinondoni and not in the Resident Magistrate's Court Kivukoni as it appears in the proceedings. That was a typographical error. As submitted by Ms. Makala, the Magistrate's Court Act, 1984 gives District Courts jurisdiction to deal with Armed Robbery cases. In this case, the Principal District Magistrate (PDM) who conducted the case had the requisite jurisdiction to deal with the case. Hence, the additional ground has ' ' no merit. Ms. Maka la, dealt with the 1st and 2nd grounds together which deal with the issue of identification. She briefly and concisely I ' submitted that the record shows clearly how. PW1 and PW2 managed 6 to identify the appellant. After all, she added, there was enough light and time to identify the appellant clearly. On our part, we are of the view that both the trial court and the High Court arrived at a correct conclusion when they stated that the conditions for identification were favourable. This is because, the evidence clearly showed that there was electric light in the shop. Also PWl and PW2 as identifying witnesses, spent sufficient time with the four robbers including the appellant. The witnesses (PWl and PW2) managed to observe the robbers who looked unsettled and PW2 warned PWl to be careful with them. Also, there was enough time and ample opportunity for PWl and PW2 to observe and remember the appearance of the robbers. Furthermore, it has ·to be borne in mind that identification is a question of fact, hence we have to have very strong reasons to differ with the concurrent findings of the two courts below. See for instance, Director of Public Prosecutors and laffari Mfaume Kawawa [1981] TLR at page 153. Hence, we find the 1st and 2nd grounds of appeal have no merit. 7 As to the 3rd and 5th grounds of appeal concerning description and the non compliance of Police General Orders (PGO) 231, the learned State Attorney, submitted that all the prosecution witnesses clearly identified the appellant. She gave the example of PW2 who identified the appellant as the one who robbed her ear rings. Furthermore, Ms. Makala, submitted that, the identification parade was conducted just as a formality to concretize the already existing identification evidence. She added that requirements in PGO 231 rd were fully complied with. Hence she urged us to find that the 3 and 5th grounds of appeal have no merit. On our part, just like the judge on first appeal, we are of the considered opinion that the appellant was identified 'on the date of incident. PW1 ·and PW2 had ample opportunity and time to observe the appellant at the scene of the crime. There are no reasons for believing that the appellant was wrongly identified at the parade. We are of the view that, there was no mistaken identity of the appellant at the identification parade. As the record shows, the number of people in the parade was twelve. That made the identification even more certain as PWl and PW2 were able to identify the appellant 8 even in such a large group of people of the same natute. Hence, we .,, find that the 3rd and 5th grounds of appeal have no merit too . As to the 4th ground of appeal Ms. Makala, briefly submitted that, each even if the evidence in the cautioned statement was to be expunged, still there was sufficient evidence to sustain the conviction of the appellant. She reiterated that the evidence found in the identification parade with that from PW1 and PW2 was sufficient enough to establish that · the appellant was among those who committed the robbery. She then urged us to find that this ground of appeal has no merit too. It is our strong view just like Ms. Makala, that the evidence found in the identification parade and that adduced by PW1 and -PW2 were sufficient to find the appellant guilty of the offence he was charged with. For that reason, we too are of the view that, even if the evidence found in the cautioned statement was to be discounted, there was sufficient evidence leading to the conviction of the appellant. In the result, we find that the 4th ground of appeal has no merit. 9 ,, I After having found that there was overwhelming evidence against the appellant, we have no reasons to fault the decisions of the two courts below. There is no merit in this appeal. We dismiss the appeal in its entirety. DATED at DAR ES SALAAM this 19th day of May, 2009 J.H. MSOFFE JUSTICE OF APPEAL M.S. MBAROUK JUSTICE OF APPEAL K.K. ORIYO JUSTICE OF APPEAL I Certify this is a true copy of the Original.