20090529 TZCA Arusha

IN THE COURT OF APPEA~ OF TANZANIA ATARUSHA . (CORAM: RAMADHANI, C.J., BWANA, J.·A., And MJASIRI, J.A.} CRIMINAL APPEAL NO. 106 OF 2006 1. PASCAL CHRISTOPHER 2. SAIDI OMARI @ ALLY 3. SAIMON MADANGI 4. MOHAMED NJEMA .......... ,.,:••··············· APPELLANTS 5. HASHIMU IDOi 6. SALIMU JUMA 7. JOHN MARTIN VERSUS () THE DIRECTOR OF PUBLIC PROSECUTIONS .......... RESPONDENT (Appeal from the Judgment of the High • Court of Tanzania at' Arusha) (Mussa, J.) I dated the 9 th day of February, 2006 in Criminal Appeal No. 60 of 2002 18 & 29 May 2009 0 BWANA, J.A.: This is a second appeal by au the seven appellants listed above. ' ' They were all charged with Armed Robbery 1, contrary to Sections 285 and 286 of the 1 Penal Code. ·t • .. I .) 2 The trial court - the Babati District Court - convicted them of the offence and sentenced each one of them to serve the mandatory i minimum sentence of thirty years imprisonment. In addition, each 'I one of them was to suffer 12 strokes of the cane. They were as well ordered to compensate their victim - Juliet ;-Kagya, PWl - the sum of Shs. 170,000/= being the value of the goods stolen. () Aggrieved by that decision, they all appealed to the High Court, at Arusha. Their appeals were unsuccessful, hence this second appeal. · Before the trial court, the prosecution had alleged that the said seven appellants (then accuseds), jointly and together, on 25 February 2001 at about 22.00 hrs, at Bagara Village within Babati District, did steal cash Shs. 40,000/=; one, radio cassette, Panasonic type, valued at Shs. 30,000/=; and one brief case valued at Shs. 100,000/= the property of one Juliet Kagya. It was further alleged that before stealing the above stated properties, the accused persons ' ' 3 did cut Juliet Kagya by using a bush knife in order to retain the said property. Ten prosecution witnesses (PWs) testified in support of the ,I prosecution case while each one of the accused persons testified as well in his respective defence. One defence• witness ( dw) testified in further defence of the third accused. The evidence before the trial court and as was recapitulated by ii the first appellate court shows that on the fateful day and time, PW1 - a business woman - returned home around 22.00 hrs after closing her business at 20.30 hrs. Her premises are fenced. On arrival at home, the watchman - George Agunda, PW9 - opened the gate for her. The children came out to receive her. However, as PW9 was dosing the gate he heard command~ from unknown persons ordering him to lay down. The children were also put under restraint. PW9 vanished into the thin night allegedly 4 to seek help from neighbours. Failing to get the much needed help, he ended up at TANESCO offices. From there he called the police. Meanwhile, back at the scene of crime, realizing that her children were held captive, PW1 bolted back into the house. The robbers however managed to force the door open, entered the house and subjected PW1 to some physical viole·nce, such as cutting her () fingers. Apparently only five bandits went inside the house. The other two kept guard outside. It is on record that the premises were well lit - both inside the house and outside - using tube lights ( electric), which helped the children to mark the identity of the bandits, so it was deposed. Investigations carried out led to the arrest of several suspects who were later identified by Neema Samwel, PW3; Amour Kagya, PW6 and Adelina Gabriel, PV\/8 - all children who were held captive by the bandits on the fateful day. Identification parades were conducted. The first one led to the identification of the now 1st appellant by PW6 who at a subsequent parade, again identified 2nd 5 and 3rd appellants. The 1st and 2nd appellants were also identified by PWs 3, 8 and 9 at yet another parade. PW8 positively identified 4th appellant while 5th appellant was identified by PW8 at another parade. At the last of these parades, PW8 positively identified the ih appellant: ·It may be noted at this juncture that the 6th appellant was never identified at any of these parades, conducted by senior police officers. The appellants raised the defence of alibi. The first appellant averred that on the material day and time, he was asleep at his home. He was arrested some days after the armed robbery. The second appellant's version is that on the material .day he was involved in an accident and was hospitalized at Babati hospital where he continued receiving treatment up to 27 February when, on his way to Dareda hospital, he was arrested. He tendered in court as an exhibit, a medical ( out patient) record containing those dates he attended hospital i.e. 23 rd, 24th , 25 th , 26th and 2ih February 2001. 6 The third appellant's alibi defence hinged on the claim that on the material day he never left his home at night. The fourth appellant tendered bus tickets which showed that on the material day he was on safari from Dar es Salaam to Dodoma. From there he went to Kondoa and then back to Babati where he was arrested. Likewise the sixth appellant produced bus tickets indicating that on the material date he was enroute to Mwanza. The seventh 0 appellant testified that on the material day he was on safari in Dar es Salaam. He produced bus tickets to support his averment. Only the fifth appellant did not raise the defence•·· of alibi. He testified, however, that he was arrested for no apparent cause. The first appellate court dismissed their consolidated appeal. Undaunted, they have come before this Court. The bottom line of their complaints as raised in their respective Memorandum of Appeal are the following - 7 1. That they we're not positively identified at the scene of crime, at that night hour. ' . Likewise the identification parades were flawed with irregularities. 2. That the two courts a quo did not consider their respective defences of alibi. 3. That the provisions of Section 191, 192 (6), 248, 249, 312 of the Criminal Procedure Act, as well as section 164 (1) (c) of the Evidence Act - all were not-complied with. Indeed, it is our considered view that this second appeal can be disposed of by co~side~i_rlg the three major points of law listed abo_ve and as discerned from the appellants' grounds of appeal. n Before we start considering the three grounds however, we would like to state - albeit briefly - the Well settled principle of law in respect of the role of an appellate court .when it comes to analyzing · factual issues. raised during trial and or first appellate court. 8 It is long settled that an appellate court should not willingly interfere with the findings of fact of a trial court. This is so because the advantage that court has is overwhelming. It has a full dimension of the trial, as it was; the demeanour of the witnesses and the like. The appellate court, on its part, depends mainly on what is contained in the record and the essentials of what was spoken and or reproduced. That is why it is preferred that only in extreme of cases should an appellate court interfere with factual issues. Such extreme cases would include (but not restricted to) factors such as glaring errors on the face of the record, errors in calculations, mix-up of part of the evidence, ejusdem generis. See, for ~xample, the much cited case_? of the __ OPP vs Jaffari Mfaume Ka!iawa (19~1) TLR 149, 153; Musa Mwaikunda vs Republic (Appeal No. 174 of 2006 - I unreported); Benmax v Austin Motors Co. Ltd. (1955) All E.R. 326 et seq; Amratlal D.M. t/a Zanzibar Silk Stores vs A.H. Jariwalla t/a Zanzibar Hotel (1980) TLR, 31; Dr. Pandya vs R (1957) EA 336; Dickson Joseph Luyana and Another v Republic (Crim. Appeal No. 1 of 2005 - unreported)i Issa Mgara @ Shuka Vs Republi_e_(Crim. Appeal No. 37 of 2005 :- unreported); Leonard ,; ) 9 Z. Maratu vs Republic (Crim. Appeal No. 86 of 2005 - unreported); Daniel Nguru & Others vs Republic (Crim. Appeal No. 178 of 2004 - unreported). In Edwin Mhando vs Republic (1993) TLR 170; 174 this Court stated thus - "---- On a second appeal to this Court, we are only supposed to deal with questions of law. But this approach rests on the· premise that the findings of fact are based on a correct appreciation of the evidence. If, as in this · case, both courts completely misapprehend the substance, nature and quality of the evidence, resulting in an unfair conviction, this Court must, in the interest of justice, intervene". In this appeal we intend to "intervene"· when we consider the evidence of alibi and the visual identification of the appellants. We start by examining the defence of alibi as raised by all save one appellant It is not insignificant to note at this stage that all the appellants were not represented (by advocates) throughout the trial and· at the first-appellate stage. The same situation is before this Court. Therefore some of the issues, such as the application (and consequences of non-application) of section 194 of the Criminal procedure Act (the CPA) should be considered in the light of that situation, particularly when the trial court may have not specifically informed them of their rights. Section 194 (4) of the CPA provides - () "Where an accused person intends to rely upon an alibi in his defence, he shall give to the court and the prosecution notice of his intention to rely on such defence before the hearing of the cas~" (emphasis -~ -- --- - provided). Section 194 (5) provides further thus - "Where an .accused person does not give on the defence I notice of his intention to rely of alibi before the hearing of ·the case, he shall furnish the prosecutipn with the particulars of the alibi at any time before I ,I 11 the case for the prosecution is closed." (emphasis provided) However, section 194 (6) provides some discretionary powers to the court. It states - "If the accused raises a defence of alibi without having first furnished the particulars C) of the alibi to the court or to the prosecution, pursuant to this section, the court may in its discretion accord no weight of any kind to the defence." (emphasis provided). In a recent decision of this Court (that is Rashid Seba vs Republic - Criminal Appeal No. 95 of 2005 - unreported) ·it was stated:- "Section 194 (6) of the Criminal Procedure Act, 1985, does not say that if an accused person raises an alibi without disclosing the intention to do so to the court and to the prosecution, then it will no~ be considered --- when considering the proper· import of section 194 (4) (5) and (6) of the CPA, 1985, --·--t, ~ ,. I I 12 this court has said --- 'on a proper construction of the provisions of this section --- the court is not exempt from the requirement to take into account the defence of alibi where such defence has not been disclosed by an accused person· before the prosecution closes its case.' · What this section means is that where such a disclosure is not made, the court, though taking cognizance of the defence, may in 0 its discretion, accord no vveight of any kind to the defence --- where the court fails to take cognizance of an alibi, it amounts to a mistrial · and a consequential miscarriage of justice (see _ _________ Charles Samson vs Republic =J~90 TLR 39) ' ---". (emphasis provided) () In the instant case, we do note - as (did the judge of the first I appellate court - that the trial magistrate •. should have explicitly considered the defence and made specific fi~dings. It seems, and we agree_ with the first appellate judge, tr~~.; the "rejection of the ,.. respective defences is implicit from ,.his positive impression of I' . --the~prosecution witnesses". In so faf'as _ we are concerned, this .. .,... I ,. ' I . .. 13 was a fatal error, in the light of the views expressed by this Court in the Rashid Seba case (supra). As if that was not enough, the first appellate court's decision on the subject seems to be based on the premise that the appellants did not give the requisite notice of the particulars of the alibis. In our ' view, this led to a miscarriage of justice. Although the appellants did not disclose their respective defences of al'ibi as required by section 194 (4) and (5) (supra), the High Court on appeal was "not entitled to ignore it so off - handedly" --- but should have considered it whether or not it was "a fit case for the trial court to exercise its discretion to consider the appellant's alibi'' (Rashid Seba case, supra). Before we conclude our discussion of the defence of alibi, we would like to make one further observation. We do note with apprehension that the two courts a quo held the view that the appellants had to prove their innocence as opposed to the prosecution proving its case to the required standards. Thus the •., 14 appellants were not duty bound to produce evidence to prove that indeed they have been in Dar es Salaam or Dodoma or even to produce as defence witnesses, the authors of the bus tickets, medical chit, etc. in support of their innocence. Or, that such documents were not forged. The cardinal principle that an accused person is innocent until proved guilty ought to have been observed by the trial court. Even where the law provides ·otheryvise, the accused is () 'I required to raise his innocence on a balance of probabilities (reasonable doubt). He is not required to prove his innocence beyond reasonable doubt. Therefore the trial court's failure to exercise its discretion to consider the appellant's defence of alibi, was a fatal omission. The I High Court likewise, failed to exercise its role in this respect. These failures led to an obvious miscarriage of justi¢e. In their respective memorandum of i appeals, the appellants raised issues of irregularities and or nqn compliance with the I I provisions of sections 192, 248 - 9, and 312 - all of the CPA as well ~ - - ~ - - ---~ ., " • - - 15 as section 164 (1) (c) of the evidence Act. We need not spend much time on these claims. All these provisions analysed, it is our considered view that no injustice was occasioned by the trial (or first appellate) court's non compliance with the strict requirements of those provisions. We do observe, for example, that section 192 deals with accelerated hearing/preliminary hearing. The trial was concluded within a reasonable time, when all factors related to this C) case are taken into consideration. Both sections 248 and 249 deal with adjournments of proceedings and an accused's rights to have copy of the proceedings. There is no proof that the appellants were denied the same. Section 312 concerns what a judgment should contain. The provision of the Evidence Act deals with the impeachment of the credibility of a witness. None of these issues were taken to occasion injustice to the appellants. Lastly, we turn to the issue of identification, particularly the visual identification. The crime with which the appellants were convicted took place around 22.00 hrs. The premises had tube lights which under normal circumstances, would provide favourable 16 I conditions for identification. The prosecution. case relies on the . evidence of PWs 3, 6 and 8 for identifying the appellants. Were the conditions favourable for adequate and correct visual identification? I ' In the case of Anthony Kigodi vs Republic, r, ' Criminal Appeal I No. 94 of 2005 (unreported) this Court did i restate the principle governing favourable visual identification as ;follows:- ,, I () "We are aware of the cardinal principle laid down by the erstwhile Court 1 ofi Appeal of Eastern Africa in Abdallah bin Wendo and Another v. Rex (1953) 20 EACA 116 and _followed by this Court in the ~elebr~ted case of Waziri Amani v Republic (19,80) TLR 250 regarding evidence of visual identification. ' ' The principle laid down in the,se cases is that n in a case involving evidence of visual identification, no court should act on I I such evidence unless all possibilities of ,, mistaken identity are eliminated and (, that the court is satisfied that the evidence before it .•is · absolutely f ,, watertight ---" (emphasis provided) I I r· 'I lJ I) ... 17 This cardinal principle is reflected in other decisions of this Court. See Raymond Francis vs Republic (1994) TLR 100, 103; Musa Abdallah vs Republic, Criminal Appeal No. 36 of 2005 (unreported); Criminal Appeal No. 37 of 2005 (unreported). Rizali Rajabu v Republic, Criminal Appeal No. 110 of 2006 (unreported); Maselo Mwita and Another vs The Republic, Criminal Appeal C) No. 63 of 2005 (unreported); Aidan Malulenga v Republic, Criminal Appeal No. 207 of 2006 (unreported); Shamir John vs . Republic, Criminal Appeal No. 166 of 2004 (unreported); Stuart Er~sto Yakobo v Republic, Criminal Appeal No. 202 of 2004; and Baldwin Komba @- Ballo vs The Republic, Criminal Appeal No. 56 of 2003 (unreported). In this appeal, a decision to be made in respect of visual identification should be in compliance with what was stated by this Court in the Raymond Francis case (supra) namely - 18 " it is elementary that in a criminal case where determination depends essentially on identification, evidence on conditions favouring a correct identification is of the utmost importance". That identification must be watertight. In our respected opinion, such watertight evidence can be said to exist when it leads to the 0 exclusion of all possibilities of mistaken identity. In other words, the court must consider the following factors. First - how long did the witness had the accused under his/her observation. Second - what was the estimated distance between the two. Third - if it were at night (as in the instant case) which kind of light did exist. Fourth - had the witness seen the accused before the day and time of crime. If so, when and how often. Fifth - the whole evidence before the court considered, are there material impediments or discrepancies affecting the correct identification of the accused by the witness. Sixth - in the course of observation of the accused by the witness, was there any obstruction experienced by the witness, obstruction which may have interrupted the latter's c9naentration. 19 The factual evidence on record suggest that the attack by the bandits was sudden and threatening. One is said to have had a firearm. The rest had either bush knives, club or iron rods. The electricity light may have been on but it is not shown what was the estimated distance between where the children were held "captive" and the nearest tube light. Again, there is no evidence suggesting how long did the whole saga last. Between the intrusion and the bandits' disappearance into the darkness of the time, a sequence of events took place. For example, first was the order to lay down; a group of up to seven bandits taking control of the premises; then the mother bolting the door behind her upon realizing what was going on; the main door to C) the house being forcefully opened; some of the children being bundled in one room while the mother and PW6 being roughed up in another room. All these sequence of events against these children had, no doubt, fear and an immediate psychological effect that their liv~~ and that of their mother were in seriq~s _ganger. Likewise cries 20 of "usimue mama" from PW6 had a further threatening impact. How long did all this last? It cannot therefore, be safely said that the conditions existing and the experiences they passed through at that time, were conducive for positive visual identification. We therefore hold that the identification of the appellants was not watertight in order to sustain a conviction and exclude possibilities of mistaken identity. Our reasoning on the issue of alibi and now on visual identification, leave us convinced that we should allow the appeals by all the seven appellants. We therefore quash their convictions and set aside the sentences of thirty years imprisonment; the twelve strokes of the cane in respect of each appellant; and the compensation of Shs. 170,000/= ordered by the trial court and upheld by the first appellate court. We do order that unless the said seven appellants (or any one of them) are lawfully held, they should be set free forthwith. ,¢.. f .• , : ) I ~ }i-, 21 ,1 ' ' . . ,,/ I :. ,/ -.', • c,} ,.•" .. ':/ •.. ·l S.J. BWANA '; :I, JUSTICE OF APPEAt. ; l_ ,fl . ;/ <)/ :1 r : ;/ S. MJASIRI ,, ! 1 ', JUSTICE OF APPEfL ii · I '.certify that this is a true copy ~f the iori,inal. I I ·." 1i ~-: ~' J ii '•, I I ,·.I ,,'I 0 [_. . . ,,