20090529 TZCA Arusha 1

I 'I I I 1/ /1 S BOOlt D'tLONGS TO TIU TmRARY OF THE COURT ot I UB ti.P'P"E-'L OF l'A~z~:-,.ilA !I 11 IN THE COURT OF APPEAL d'F TANZANIA t\l'ARUSHA (CORAM: RAMADHANJ. C.J., BWANA. J.A.; and MJASIRI, l.A.l CRIMINAL APPEAL N·o • .16 OF 2007 MATHEW STEPHEN @ LAWRENCE ............ !....................... APPELLANT VERSUS !/ THE REPUBLIC ...................................... J .................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Anisha) ,, · ,, . ' (Sheikh, J.) , dated the 3 rd day of February, 2005 in · Criminal Appeal No. zs of 2002 JUDGMENT Of THE·COURT 16 & 29 May 2009 Ii BWANA, J.A.: / I Mathew Stephen @ Lawrence wa¥ charged with two counts of i Armed Robbery contrary to Sections 285 and 286 of the Penal Code. He was convicted on both counts and tntenced to serve two prison terms of thirty years, to run concurrent,ly. His first appeal before the i, High Court was unsuccessful, hence this second appeal. ! i I 11 It was the prosecution case that on 27 June 1998 at about i' ' . 19.,15 hrs, at Njiro area of Arusha, Te appellant stole one motor I, ii I ., 2 vehicle, a Peugeot 504 by make, Registrati, n No. MB 5303 valued at Shs. 2.5 m/= and that immediately before such stealing, he did use firearm in order to obtain the said motor vehicle. That was count one. In so far as the second count i concerned, it was the • ' I prosecution's further allegation that on thd same day at about 20.45 hrs at Manjl's BP Petrol Station, Sokoinel Road Arusha town, after I stealing the Peugeot motor vehicle referred to above, the appellant did steal cash money, Shs. 3,000,000/=, fJom one Mgaza Amani, the property of the said Manji's BP Petrol Sta+n and immediately before such stealing, did use firearm in order to o~tain the said cash money. The facts of the case show that on ~he material day and time, the appellant hired the Peugeot vehicle oµ,erating as a taxi. The taxi driver one Stephen Laurent, PWl - had parked his vehicle at the Central Market taxi stand of Arusha. The appellant hired him to take him to Njiro area of Arusha. At Njiro the appellant got off the taxi but asked PW1 to wait for him. After af while, the appellant came 3 back in the company of four other armed people. They roughed up PWl and forced drugs into his mouth after forcing him onto the back seat of the vehicle. Later they threw him at a maize farm in Njiro area. Meanwhile Mgaza Amani - PW2 - a pump attendant at the Manji's BP Petrol Station, was on duty that evening. It is his testimony that on that day at about 8.45 p.m., people in a Peugeot 504 Saloon with Registration No. MB 5303 drove In to buy fuel. While attending the car, the occupants of the said car came out, slapped him. He fell down. Then they ordered him to give them all the money. That he did, in order to save his life. After collecting the money they left. The petrol station had full lights on. According to D/Sgt. Mussa - PWl - who investigated the matter, the Peugeot vehicle was subsequently found abandoned at Ilboru area, deserted. Upon searching It, an identity card (ID) belonging to the appellant was found. It had been issued to him on 4 15 June 1998. The recovery of the ID eventually led to the arrest of the appellant. In his defence, the appellant told the trial court that at that particular time, he was In Tanga, not Atsha. As to the ID found in the stolen vehicle, it was the appellant's averment that the ID had been stolen and that he had reported th1 matter to both his Ten Cell Leader and to the police. Copies of bothlthe ID and the report to the police were tendered as defence exhlbltts. Likewise a letter by the I said Ten Cell Leader addressed to the Arnsha Municipal Council and informing that the appellant had lost hi~ ID and that he should be given another, was tendered. _ We would like to note here that r. Kaishozi, State Attorney 1 tried to impress upon us that the ID which had been recovered from the Peugeot vehide had Indeed bee+eported lost, some_ days earlier. We were therefore, asked to hold that the ID may have been f used by another person, other than the appellant. Based on that I argument, he did not support .the conviction. Instead he supported 5 the appellant's argument as raised in his supplementary memorandum of appeal. Both the appellant and Mr. Kaishozi for the Republic missed one crucial point - the dates on those documents. It is true that the Ten Cell leader wrote his letter to the Municipal Council on 11 June 1998. It is also correct that the appellant reported the loss of the ID to the police on 12 June 1998 vide AR/RB/6714/98. On the same date he filled in "Fomu ya Kuomba Kitambulisho cha Mkazi" at the Municipal Council (Exh. P2). He was given a new ID with number 0282697, on 15 June 1998. However, the ID recovered from the stolen Peugeot vehicle on the day of that robbery, i.e. on 27 June 1998, bore the number 0282697 (Exh. Pl). It means, therefore, that the ID found in the stolen vehicle, bearing the appellant's photo and dated 15 June 1998 did belong to the appellant. He had a new ID by the time the alleged robbery took place. On this point, we decline to agree with both the appellant and Mr. Kalshozi that at the time of the commission of the alleged robbery, the appellant had no ID. He had one, validly issued by the relevant Municipal authority. There was 6 also the submission that the same ID was found in another vehicle involved in a Bureau de Change robbery. We do note that the two offences took place a few days after each other. On the defence of alibi, both the trial court and the first appellate court rejected it. They did so not only because the appellant had failed to comply with the provisions of section 194 of the Criminal Procedure Act (the CPA) 1985, but also because there were other irregularities established. Those irregularities included, inter alia, different names of the passenger on the tickets used to travel between Arusha and Tanga. The trial magistrate who examined the said tickets, came to the conclusion that they were not valid. The first appellate court did observe that it is "obviously a palpable lie which the accused had advanced for the sole purpose of deceiving the court''. We have no reason to differ with the findings of those two courts on this subject of alibi. We are now left with the issue as to whether the appellant was adequately identified by PWl and PW2. PWl's contact with the 7 1 appellant was around 7.15 p.m., hence darkness had fallen. But this PW Is adamant that it is the appellant who hired him. Before starting off their trip towards Njiro, PWl avers that the appellant approached him at the Central Market Taxi Stand. ~bviously they negotiated the fare and the like. We are satisfied and do hold the view that such negotiations and early contacts betweera a taxi driver and a would be !i customer cum passenger, brought the two together, at least to have visual knowledge of each other. Again, it is PWl's averment that the two drove together all the I way to Njiro. They had to stop at a petrol station to refuel. Whether during this time the appellant was seate9 at the back seat of the taxi or in the front passenger seat, we are of the view that PW1 had ample time to visually identify the ap~llant. The Issue of positive identification at night hours has been, in iour view, well considered by this Court. We will revert to it shortly. PW2's evidence is uncontroverted When It comes to the issue of visual identification. He had gone to th~ petrol pump to attend to I i' 8 customers in a Peugeot saloon car. The appellant disembarked from f the car and slapped him, forcing him o lay down and surrender all the money he had. The whole area . of the petrol station was lit, leaving no darkness that could be seen 1as preventing identification. In the much celebrated case of Waziri Amani vs Republic {1980) TLR this Court stated:- "---in a case Involving .e~idence of visual identification, no court shduld act on such I evidence unless all possibilities of mistaken I identity are eliminated and !that the court is satisfied that the eviden~e before it is absolutely watertight---" That cardinal principle of the law is reflected In many other decisions of this Court, including Raymond Franiis vs Republic (1994) TLR 100; Musa Abdallah vs Republic, Cri~inal Appeal No. 36 of 2005 I (unreported); Rizali Rajabu vs Repub~c, Criminal Appeal No. 110 of 2006 (unreported); Maselo Mwita a!nd Another vs Republic, Criminal - Appeal No. 63 of 2005 (unrepoked); I Aidan Mwalulenga 9 vs Republic, Criminal Appeal No. 207 of 2006 (unreported); Shamir John vs Republic, Criminal Appeal 166 of 2004 (unreported); Stuart Yakobo vs Republic, Criminal Appeal No. 202 of 2004; and Baldwin Komba vs Republic, Criminal Appeal No. 56 of 2003 (unreported). In the above cases, this Court did insist on the need for watertight evidence, to exclude all possibilities of mistaken identity. The Court has therefore to consider the following. First, the period under which the accused was under observation by the witness. Second, the distance separating the two during the said observation. Third, if it is at night, whether there was sufficient light; Fourth, whether the witness has seen the accused before and if so, when and how often. Fifth, in the course of examining the accused, did the witness face any obstruction which might interrupt his concentration. Sixth, the whole evidence before the court considered, were there any material impediments or discrepancies affecting the correct identification of the accused by the witness. 10 l The evidence of both PWl and PW2 leave no doubts that the appellant was positively and visually i entified so as to leave to I I doubts. There was ample opportunity for the two to Identify him. And where such ample opportunity doeslexist then, as was stated in I the case of Kichele Mrange vs Republic (1983) TLR 158;· an identification parade can be dispensed with. There was no mistaken I identity. The evidence of both PWl and i2 is watertight. It leaves no doubt that the appellant is the person whlo committed the two armed robberies with which he was charged, Jonvicted and sentenced to i two concurrent terms of thirty years im.P,risonment. We do not see the reason to disturb those findings. Therefore this appeal is dismissed in its entirety. 11 11 i r DATED at ARUSHA this 29th day of May, 2009. I' - II ,! A.S.L. RAMADHANI ,... CHIEF JUSTICE S.J. BWANA·· (€ ·' . JUSTICE OF APPEAL L., - t., S. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy of the original. I! \ ji ~ :: ,--:-:~- -iv-·~- ... ,· · ( S.S. MWANGES! ) SENIOR DEPUTY REGISTRAR I ,. I.