20091102 TZHC Dodoma

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA {CORAM: MSOFFE, JA; RUTAKANGWA, JA; And BWANA, JA.} CRIMINAL APPEAL NO. 481 OF 2007 1. PAULO LUSULO } · . 2. SUDAI MWEZI @ MASENEGE ................................. APPELLANTS VERSUS THE REPUBLIC .................................................................... RESPONDENT {Appeal from the judgment of the High Court of Tanzania at Dodoma} {Masanche, J.) dated the 6 th day of June, 2007 in Criminal Appeal No. 63 of 2005 JUDGMENT OF THE COURT 29th October & 2 nd November, 2009 BWANA, J, A.: The two appellants, Paulo Lusulo@ Sikitu and Sudai Mwezi @ Masenge, were charged and convicted of armed robbery contrary to sections 285 and 286 of the Penal Code (the PC). Each one of them was sentenced to serve a prison term of thirty (30) years and twelve strokes of the cane. Their first appeal before the High Court was unsuccessful, hence this second appeal. 1 ... It was the prosecution case that on 27th December, 2003 at around 7.30 p.m. at an area called Kisasa within Dodoma district, the two appellants robbed one Rashidi Juma (PWl) of his bicycle, phoenix by make, valued at Shs.63,000/=. In the process they also stole from him Shs.170,000/-. In effecting the crime the appellants did use violence by hitting PWl with an iron bar resulting in fracturing one of his arms. A medical report on the injury suffered described the fractured arm as being "dangerous and permanent ... which will take many years to resolve from pains." The facts of the case may be stated briefly as follows. On the fateful evening, PWl in the company of Jenny Robert (PW2) were riding their bicycle from a nearby market. When they reached Kisasa area, suddenly the first appellant appeared and ordered them to stop. He threatened to harm them. A scuffle ensued. Upon realizing that PWl was overpowering him, the first appellant blew up a whistle and the second appellant emerged from a nearby bushy area. Both appellants attacked PWl succeeding to fracture his arm and getting 2 away with the bicycle. That averment of PWl is supported by the evidence of Jenny Robert, PW2. Some minutes later, the appellants arrived at George Chilolo's house. The second appellant was known to George (PW4). He asked him to keep the said bicycle overnight alleging that it had a puncture. The second appellant was said to be in the company of the first appellant. Later PW4 came to know that the said bicycle was the one stolen from PWl. He informed the police and a trap was laid. When the appellants came to collect "their" bicycle the following morning, they were arrested by the police. The first appellant gave a cautioned statement to the police. The said statement was tendered in court without objection from this appellant. In that statement he admited to have committed the offence in the company of the second appellant. In their respective defences, the appellants denied to have committed the offence, a stand they still held when they appeared 3 before us. They were unrepresented while Mr. Patience Ntwina, learned Senior State Attorney, represented the respondent Republic. The appellants' memoranda of appeal contain similar grounds which may be paraphrased as follows. That they were not positively identified. That the trial magistrate did not comply with the requirements of section 312 (2) of the Criminal Procedure Act (the CPA). That their respective defence cases were not taken into consideration by the trial court. That the cautioned statement was not freely made. Lastly, that the sentence imposed on them is harsh. and excessive. We will consider these issues now. We begin with the alleged non compliance with the provisions of section 312 (2) of the CPA. Section 312 (2) of the CPA simply provides that in case of a conviction, the judgment should specify the offence of which, and the section of the PC or other law under which the accused person is convicted and the punishment to which he is sentenced. The issue here is in our view, of substance as opposed to form of writing a judgment. In convicting the appellants the trial magistrate did state 4 (at page 78 of the record) thus: " Accordingly I find the 1st and 2nd accused guilty and I convict them as charged." That concluding statement is, in our considered opinion, in compliance with the requirements of section 312 (2) of the CPA. If at all there are any defects in the said conclusion then they are not fatal. We further note that the appellants did not raise that point in their first appeal. The issue of whether or not the cautioned statement was freely and voluntarily made likewise, should not take much of our time as the record is clear on this. It clearly shows that the first appellant's cautioned statement was tendered in court without objection from him. Therefore his challenging the same at this stage may safely be said to be an afterthought. But even if we were to expunge the same from the record, there was still sufficient evidence to lead the trial court to convict the appellants as we will shortly show. Was the appellants' defence case not taken into consideration by the trial magistrate? Our reply to that is that the court did consider their defence. The record clearly shows that all procedures required by law in respect of conducting a trial were complied with. 5 The appellants were given opportunities to cross examine the prosecution witnesses. They gave their defences, one on oath and the other not on oath. They indicated to the court that they had no witnesses to call for the defence. The trial magistrate did examine both parties' evidence and convinced himself that the prosecution had proved its case to the required standard, that is, beyond reasonable doubt. The first appellate court did concur with that finding of fact. As a second appellate court, we see no plausible reason to fault the concurrent findings of fact by the courts a quo. The issue of identification is premised on the fact that the appellants were not positively identified by PWl, PW2 and PW4 at that time of the night. They cited the case of Philipo Rukanza v Republic (CAT) Criminal Appeal No. 215 of 1994 (unreported) in support of their averments. The law on visual identification is now well settled in this jurisdiction. In the case of Raymond Francis vs Republic (1994) TLR 103, the Court held that - 6 " ... 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." It is of utmost importance because, as it was stated in Shamir John vs Republic, Criminal Appeal No. 200 of 2003 (unreported): " ... it is a tricky issue. There is no gainsaying that evidence in identification cases can bring about miscarriage of justice... therefore the courts should warn themselves of the special need for caution before convicting the accused in reliance on the correctness of the identification .... " The evidence of identification in this case is visual. It is on record that both appellants were identified by PWl, PW3 and PW4 7 that night and the following morning when they came to PW4's house to collect "their" bicycle. The appellants were known to those PWs even before this incident as they all live in the same village. This Court held in Stuart Erasto Yakobo vs Republic Criminal Appeal No. 202 of 2004 (unreported) thus- " ... the law is settled that evidence of visual identification should only be relied upon when all possibilities of mistaken identity are eliminated and the court is satisfied that the evidence before it is absolutely watertight. .. " (See also Anthony Kigodi vs Republic Criminal Appeal No. 64 of 2005 - unreported.) The case law cited above, no doubt, echoes the views expressed in the much celebrated case of Waziri Amani vs Republic (1980) TLR 250 where not less than six (6) guidelines were listed aimed at 8 guiding a trial judge so as to direct his mind before coming to any definite conclusion on the issue of identity. In Emanuel Mdendeni and Paulo Mgaya vs Republic Criminal Appeal No. 86 of 2007, (unreported) the said guidelines were listed as being the following. First, has the trial court addressed itself to the issue of time - 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 persons before? If so, when, where and how often. Fifth, if the whole evidence before the court was considered, was there material impediments or discrepancies that affected 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 which may have interrupted the latter's concentration. The factual pieces of evidence on record in this case suggest that, as stated earlier, the appellants were known to the PWs. They 9 were villagemates. When the appellants went to PW4's house, it is not in doubt that they talked to one another until the latter agreed to keep the bicycle over night "since it had a puncture" as he was made to believe. The same appellants went back to PW4's house the following morning to collect the bicycle. We have no doubts in our minds that these occasions gave sufficient opportunities to the PWs to positively identify the appellants and connect them with the robbery of PWl's bicycle which he identified and tendered in evidence as an exhibit without any objection from the appellants. The appeal against sentence has no iota of merit as well. The sentence of thirty years imposed by the trial court and upheld by the first appellate court is, indeed, the mandatory minimum prescribed by law. It cannot, therefore, be faulted. All the above considered, we are left in no doubts as to the guilt of the appellants as found by the trial court and upheld by the first appellate court. Therefore this appeal has no merit. It is accordingly dismissed in its entirety. DATED at DODOMA this 2nd day of November, 2009. J. H. MSOFFE JUSTICE OF APPEAL E.M.K. RUTAKANGWA JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL I certify that this is a true copy of the original. (Z. A. M~A) DEPUTY REGISTRAR 11