20100514 TZCA Mwanza2

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: MSOFFE, l.A., MBAROUK, l.A. And BWANA, l.A.) CRIMINAL APPEAL NO. 66 OF 2006 ' I 1. SALEHE MWENYA - I 2. LADISLAUS TUJAKAMA ................................. ~ .......... APPELLANTS 3. JOVIN SHIRIMA 4. BUSHIRI HAMISI VERSUS THE REPUBLIC ................................................................. RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mwanza) (Masanche, J.) I st dated the 31 day of August, 2005 in Criminal Appeal Nos. 110, 111 and 113 of 2004 JUDGMENT OF THE COURT 13 & 14 May, 2010 MSOFFE, J.A.: I Before the District Court of Sengerema (Mayaya, PDM) the appellants and two others were charged with armed robbery contrary to Sections 285 and 286 of the Penal Code. It was alleged that on 15/2/2003 at 7.30 a.m. on the waters of Lake Victoria, in Sengerema District, they jointly robbed two persons, ! in different boats, Constantine Kideji and Magoma Kahindi, of their boat engines. A gun was used in the course of the robbery. After a fJII trial the two other ! accused persons were acquitted., The appellants were convicted as charged and each sentenced to thirty years i~prisonment. The I appellants' first appeal to the High Court (Masanche, J.) was · i dismissed, hence this second appeal. Before us, the I first, second and fourth appellants appeared in person(s). The third appellant had the services of Mr. Deya Outa, learned advocate. The !respondent Republic was represented by Mr. Edgar Ludga, learned Senr State Attorney. In their respective memoranda of appeal the first, second and · fourth appellants have raised grounds which in a lsense, are similar to those filed by Mr. Outa on behalf of the thirdl appellant. In this I context, we will determine the appeal on the basis of the grounds appearing in the memorandum of appeal filed br Mr. Outa. Before ! doing so, however, we wish to state from the outset that Mr. Luoga did not seek to support the conv,iction. He theref9re argued in support ! of the appeal. With respect, he was justified in doing so for reasons which will become apparent in this Judgment. 2 I This is a second appeal in which we derive o~r jurisdiction from I 1 Section 6 (7) (a) of the Appellate lurisdiction Act (CAP 141 R.E. ! . I 2002) providing for an appeal "on a matter of law (not including ! severity of sentence) but not on a matter of fact'~ In a second appeal 1 I therefore, the Court is cautious, or rather slow, in disturbing findings 1 I of fact by the courts below. We may interfere with those findings I where there are misdirections or non-directions orl the evidence, or a misapprehension of the evidence etc. The complaint in the first ground is that the judge on first appeal erred in holding that the appellants, who were identified in the dock, were properly identified. The complaint in the: second ground of I appeal is that it was wrong to invoke the doctrine pf recent possession I in this case because the alleged stolen boat ~ngines were never I recovered. Finally, that the judge erred in not drawing an adverse I inference on the prosecution case by the failure to adduce relevant 1 I evidence and also the failure to call material witnesses. I 3 I The facts of the case were a bit long but w~re succinctly stated in the Judgment of the High Court, to which we take the liberty to I quote them verbatim, thus:- The incident happened on 15/2/2003 at roughly i 7:30 am. On that day and time, Constantine Kideyi (PWJ) wa~ with another person called I Stephano Hezron (PW5), in a boat. :They had gone into the lake to buy fish. While they were plying the lake, a boat came along, and that boat signaled to show that the people in it had wanted I to talk to PWJ and PWS. When that boat reached the boat of PWJ and PWS, Ladislaus engaged into conversation with PWJ. Ladislaus asked PWJ I whether they {PWJ & PW5) wanted to buy fish from Ladislaus and his group. PWJ agreed that they indeed, were on a mission of buying fish. I Ladislaus then said that they had only 30 kilos of fish to sell. Then swiftly, Ladislaus J~mped into the boat of PWJ and PW5. Ladislaus was wearing a "life iacket" and an ordinary Jacket. He had no weapon. He, however, told PWJ and PW5 that the 30 kilos of fish, they said they hac:I, were at the lakeshore, and, suggested that they all sail I there. Ladislaus asked that the boat of I PWJ and 4 PWS better tow them to that place. lndred, PW1 took a rope and threw it at Jovin and Bushiri. No sooner had the pulling started, Ladislaus quickly pulled a machete and cut PW1 on the head with it. Jovin then pulled a gun (SMG) and pointed it at Hezron, PWS. PW1 and PWS were tolq that they I were under arrest. Now, something else happened: ,When this drama was taking place/ another boat cqme along. In it were Magoma Candida/ PW4/ and another person called Safari Tobias, PW3. These two persons were not aware of the robbery, So/ they got trapped into the snare/ as it were. They, too/ ! got robbed of their engine. Magoma had saved / himself by Jumping into the lake and swimming I away. But he was retrieved back by the appellants. The appellants took his I clothes in order to retrieve any money that "1(as in the clothes. Indeed, Shs.160/000/- was taken away. I He said they left him naked in the boat. The villagers who came to save him/ indeed,: found him naked. I The complaint in the first ground of appeal has a bearing on the fact that as per the above facts of the case no! prosecution witness I 5 ·ever testified to have identified the appellants at the scene of the 1 ; alleged crime. As happened, and as per the evidence on record, the i appellants were identified in Court by the witnesses. Surely, that was i not in order because as this Court said in Francis Majaliwa I and two others, Criminal Appeal No. 139 of 2005 (unreported), quoting the Kenya case of Gabriel Kaman Njoroge v Republic (1982 - 1988) 1 I KAR 1134 at page 1136:- I Dock identification is worthless (the court should not rely on a dock identification) unless this has been preceded by a I properly conducted identification parade. Ai witness should be asked to give descriptiof/ of the accused and the prosecution shottld then arrange a fair identification parade. In this case, it is not in dispute that the alleged offence took place in broad daylight. Notwithstanding this, there ought to have been I evidence from the witnesses to the effect that they identified the appellants at the scene and the manner in which i they did so. In the absence of such evidence, it follows that there !was no evidence of I identification in the case. In fact, on the basis of this point alone we J 6 could determine the appeal. However, we will proceed further and I address other salient features in the case. The complaint in the second ground of appeal arises from the I concurrent and respective findings of fact by the courts below as are 1 apparent in the judgment of the trial District Courl and affirmed by the High Court thus:- Bearing in mind that the Z'd, :ld. and 5h i accuseds disclosed to P. W.6 and 7 that the ' boat engines were stolen in Chamabanda area within Sengerema District at the time they offered to sell the boat engines. Bearing I in I mind that robbery was committed on 15/2/2003 and the accused persons offered to sell two boat engines on 19/2/2003 o{lthe same type as those who had been robbed I have no I the least doubt that the boat engines which accused persons offered to sell where the one which had been stolen on 15/2/2003 from P.W.1, 3, and 5. This too proves too that the I four accused persons were the people who had stolen the said ....•. i 7 I With respect, the above findings did not conclu~ively establish the I doctrine of recent possession for the following ~easons. One, no I I evidence from the owner was forthcoming in the ca~e to show that the I engines belonged to him. Two, the said engines were never retrieved. I and exhibited in court. In the absence of evidence, along the lines or I spirit suggested in one and two above, it might not be true, easy and I correct to say with certainty that the said engines were necessarily the same engines that were stolen on the fateful day.1 In this sense, the I following passage by this Court in Ally Bakari and Pili Bakari v The I Republic (1992) TLR 10 at page 15 is instructive:-1 I Quite clearly, as a matter of law and logic, it is I essential for a proper application I of the doctrine of recent possession, that the stolen ' thing in the possession of the accused must have a reference to the charge laid against the I accused That is to say that the presumption of guilt only arises where there is cogent proof I that the stolen thing possessed by the accused is the one that was stolen during I the commission of the offence charged I and, no I doubt, it is the prosecution who assumes the 8 I burden of such proof, and the fact that the accused does not claim to be the owner of the property does not relieve the prosecution of that obligation. This brings us to the complaint in the last grc;>Und of appeal. In the preliminary hearing that was conducted on 10/6/2003 two persons ' I were mentioned in the list of prosecution witnesses, namely ASP Matei and Cpl. Renatus. In similar vein, two exhibits were mentioned as I I being vital to the prosecution case, that is, an identification parade form and the appellants' cautioned statements. ;vet the above two I persons did not testify! In our view, if they had testified perhaps they would have helped in beefing up the prosecution: case, especially on I the identification parade mentioned by PWl, and the cautioned statements which were apparently not produced i:n evidence. In the absence of such evidence, there is merit in this ground that an adverse inference ought to have been drawn against the prosecution side by the failure to summon those persons as witnesses; and also the failure I I to produce in evidence the cautioned statements. , 9 For the foregoing reasons, we allow the 1appeal, quash the I conviction and set aside the sentences. The appellants are to be I released from prison unless lawfully held. I . I th DATED at MWANZA this 14 day of May, 2010. I J. H. MSOFFE I JUSTICE OF APPEAL M.S. MBAROUK JUSTICE OF APPEAL · S. J. BWANA JUSTICE OF APPEAL I I certify that this is a true copy of the original. I s.~mZ :._ I (J. 7 (/- TY REGISTRAR