evaristo mwanzakila 3 others vs republic 2010 tzhc 237 25 october 2010

IN THE HIGH COURT OF TANZANIA AT IRINGA APPELLATE JURISDICTION (Iringa Registry) (DC) CRIMINAL APPEAL NO. 30 OF 2009 (Originating from Criminal Case No. 274 of 2007 of the District Court of Njombe District at Njombe Before: F. R. Lukuna R.M.) 1. EVARISTO MWANZALILA ^ 2. AMOS MWANZALILA APPELLANTS 3. EZRON MWANZALILA 4. ANTONY MDELE VERSUS THE REPUBLIC......................................RESPONDENT JUDGMENT UZIA, J . The above four appellants were jointly charged, convicted and sentenced to five years imprisonment for the offence of causing grievous harm Contrary to Section 225 of the Penal Code [Cap. 16 R.E. 2002]. It was alleged and proved that the said appellants on the 29th day of August 2007 at Msimbazi Village within Njombe District in Iringa Region caused grievous harm to l one Brown s/o Mwanzalila by cutting his head by using machete. The trial magistrate imposed the conviction and sentence by basing the verdict on the evidence as adduced by the Prosecution's witnesses particularly PW1 and PW2. In his evidence PW1 testified that on the material night while sleeping, he heard the door broken off and saw the perpetrators who on the spot attacked him. That the said perpetrators told him that they invaded the premise just for killing him. At that night there was light from the burning lantern and the same was broken down by the perpetrators. PW1 further testified that he managed to identify the perpetrators through their voices and faces since they were relatives. That they ordered PW2 (the wife of PW1) to cover/hide herself. That the perpetrators told PW1 to make his last prayer and thereafter cut him on the heard and became unconsciousness. PW2 inter alia testified that on the material night the lantrine was on and when the perpetrators invaded the house, they wanted PW1 only hence they ordered her (PW2) to hide herself under the bed. She further testified and denied to have seen the perpetrators before the Court. In their defence the accused persons/ appellants denied to have participated in the incident. DW1 testified to have been arrested three weeks after the incident, DW2 pleaded alibi that at * the material time he was in Makambako, DW4 also pleaded alibi that on the material night he was at Saja. DW6 a wife of Amosi Mwanzalila testified that on the material night she slept and spent with her husband throughout the night enjoying themselves, DW7 testified that on the material time her husband did not participate in the incident as he entirely slept to his house. DW8 testified to have left with DW4 to Saja and they both returned on 18/9/2007. Being aggrieved by the Judgment the appellants jointly appealed to this Court against both conviction and sentence. In their joint petition of appeal they pleaded the following grounds. One, the appellants pleaded not guilty to the charge. Two, the conviction is against the weight of evidence. Three, the learned trial magistrate grossly erred in law and fact by acting on uncorroborated evidence of the complainant. Four, the one who was supposed to do that task, was the complainant's wife Tukae Ngonyani who was sharing a bed room with the complainant on that fatefkul night. Five, the complainant named him a witch (sic). Six, the learned trial magistrate did not warn himself on the danger of uncorroborated testimony of complainant which is a cardinal principle of justice. Seven, the appellants' attendance to the conciliatory family meeting should not have been taken into consideration by the trial Court Magistrate as-the appellants never admitted to have committed the .offence. Eight, the appellants were convicted on insufficient evidence. That the 4th accused never attended to the reconciliation Family meeting. When the case came on 2/6/2010 for mention the appellants were represented by Mr. Justinian Mushokorwa, learned advocate and the respondent/ republic was represented by Mr. Riziki Matitu, learned State Attorney. Mr. Mushokorwa prayed the Court to argue the case by way of written submissions. The prayer was not objected by the Respondent hence the Court allowed them to submit their arguments by way of written submissions. Mr. Mushokorwa, in his written submission preferred to argue the given grounds generally as contained in the petition of appeal. He faulted the trial Magistrate for disregarding the defense of the appellants which amounted to alibi. He stated that, to constitute alibi one need not travel away of his village as the trial Magistrate seemed to believe. Alibi simply means to be away from the scene at a time the alleged crime is being committed. That, where most of the appellants having alleged to have been at respective homes at the material time, this was a defense of alibi and each was supported by his spouse. He went on contending that at law alibi need not be proved beyond all reasonable doubts; it suffices if it is raises doubt on prosecution case. He invited the Court to consider the decision in the case of AH Msutu V. R (1980) TLR 1. As for the 4th Appellant, Mr. Mushokorwa contended that, the trial magistrate wrongly exercised his discretion by rejecting the defense of alibi under section 194(6) of Cap. 20 R.E. 2002. That, the Court record does not show that the Magistrate took ' trouble to educate the appellants about the requirement of giving notice under section 194 (4). He further went on submitting that failure to consider closely the whole defense case renders the decision bad at law. He supported his contention by the case of H u ssein Id d V. R (1986) TLR. 166. Mr. Mushokorwa further submitted on the issue of identification by PW1 and the act of Appellants going to Makambako to attend a reconciliation family meeting. That it is a settled law that the evidence of visual identification is the weakest evidence if the surrounding conditions are difficult, he also cited the case of A m a n i W aziri V. R (1980) TLR 250. He submitted that the trial magistrate did not seem to have borne in mind the dangers of mistaken identification arising from horrifying conditions as stressed in the cited leading decision. He went on faulting the trial Magistrate that he did not warn himself on the effects of relying upon PW1 evidence which also based on voice identification. That the trial magistrate did not warn himself on the effects of the sudden attack on PW1 who must have been terribly horrified so much so that he lost consciousness immediately. That the trial magistrate did not consider how bright was the light from the lantern, what was the distance and positioning of the attackers to the victim, what was the size of the bedroom. All these important details were not supported by evidence. That, the most important is the fact that the wife of PW1 said repeatedly in court and to the village chairman that she had not identified the invaders that night neither by sight nor by voice. That, this fact was sufficient cause to doubt PW1 about his alleged identification. He strongly faulted the trial magistrate for relying heavily on the reported family meeting which the appellants attended at Makambako. He submitted that the Appellants had not said they went in Makambako on their own initiative rather they were summoned by the police at the instance of PW1 and his father. To windup the submission, Mr. Mushokorwa submitted that, the prosecution did not discharge its duty to prove the guilty of the appellants and not for the latter to prove their innocence. He further prayed this Court for the release of the appellants. In reply, Mr. Matitu for the respondent/ Republic supported the appeal in its entirety. He submitted inter alia that the Counsel for the appellants has confined himself to the ground of Appeal which unfolds as follows that "tA?e convictions is (sic) against the weight of evidence". He went on submitting that that being the case the crucial issue to be discussed is whether the prosecution side proved it's (sic) Case beyond all reasonable doubts? He also reproduced section 225 of the Penal Code. Further he cited section 5 of the Penal Code and defined the word grievous harm. That according to the evidence on record it is undisputed fact that the victim PW1 was attacked in his house on 29/08/2008. That the attackers did not want anything from him other than his soul. They assaulted PW1 with a Machete in his forehead. Mr. Matitu further stated the reason which empowered the respondent to support the appeal. That the evidence adduced by the prosecution side leaves a lot of doubts especially regarding the issue of identification of the culprits herein. For this Mr. Matitu credited the submission of the learned counsel for the appellants at page 3 of his submission. Mr. Matitu also submitted that the evidence of PW1 on the issue of identification leaves doubts because of the following reasons. One, the condition was unfavorable one for identification, as the event took place during night hours although they claimed that a lantern lamp was on. Nevertheless the condition was not clarified as stipulated in the case of Waziri Amani v. Republic (1989) TLR 252 (sic). That the circumstances whether the lantern lamp had good or poor light, the distance at which PW1 observed the appellants and the conditions in which such observation occurred were not disclosed. Two, there was evidence that the complainant was taken by great surprise by the culprits when they invaded his house, followed by an assault soon after which the victim became unconsciousness. These phenomena (sic) lead us to believe that there is a possibility that the victim mistakenly identified the culprits. He further cited the case of Eliya and Others V. Republic (1972) HCD 201. He went further contending that the only witness who claimed to identify the Appellants is the victim/ PW1. That his wife stated categorically that she did not identify the perpetrators on the material night. That the trial magistrate endeavored to find corroboration of PW l's evidence and consequentially he erred by relying upon the testimonies of PW1 himself instead of using extra independent witness or evidence. That the alleged errors on the side of the trial magistrate on the issue of identification of the accused persons invite doubt. That such doubt had to be resolved in the favour of the appellants. Mr. Matitu further faulted counsel for the appellants for having been consumed much time submitting on the defence of alibi. That the said ground was an afterthought because it did not form part of grounds of appeal per petition of appeal filed to the Court by the appellants. For this reason Mr. Matitu hesitated to enter a reply basing on such ground. He supported his position by using the case of Kamando Chisima V. R (1995) TLR 140. He therefore prayed this Court to disregard this ground. However, all in all he concurred with the Counsel for the appellants and prayed the court to quash the conviction and set aside the sentence. My evaluation on the evidence of PW1 is that the alleged evidence was insufficient hence very dangerous for the trial Court to rely upon and convict the appellants. I am holding that view because the circumstances at that night were not conducive to enable him see the perpetrators properly. It was night and PW1 was sleeping. That the perpetrators had broken the door and immediately attacked PW1 hence there was no chance for PW1 to identify them effectively. The source of light was from a burning lantern and the said lantern was also pulled down/destroyed by the perpetrators hence the said light was no longer illuminating the room. According to the force applied by the perpetrators it is obvious that PW1 was extremely horrified and therefore unable to identify the culprits properly. On the strength of the foregoing testimonies of PW1, I am in all fours with the learned counsel for the appellants that it is a settled law that the evidence of visual identification is the weakest evidence if the surrounding conditions are difficult. The case of Waziri Amani V. R (1980) TLR 250 as rightly cited by Mr. Mushokorwa ascertains the position. However, with due respect to Mr. Matitu, I am of the firm opinion that the case of Amani Waziri V. R (1989) 252 as he invited the Court to look at, is wrongly citated. It does not exist in our Law Reports. I think he over sighted the citation or skipped to vet the typed draft of his reply before filing it to the court. The reasoning of the court of appeal in the case of Waziri Amani v. R, as rightly cited by the defence counsel for the appellants was that; w "Athough no hard and fast rules can be laid down as to the manner a trial judge should determine questions of disputed identity, it seems clear to us that he could not be said to have properly resolved the issue unless there is shown on the record a careful considered analysis of all the surrounding circumstances of the crime being tried. We would for example expect to find on record questions as the following posed and resolved by him, the time the witness had the accused under the observation, the distance at which he observed him, the conditions in which such observations occurred, for instance it was day or night time, whether there was good or poor lighting at the scene, and further whether the witness knew or had seen the accused before or not. These matters are but a few of the matters to which the trial judge should direct his mind before coming to any definite conclusion on the issue of identity. "(Emphasis added) Obviously, the evidence of PW1 which was acted upon by the trial magistrate did not comply with the trite standard of visual identification as stipulated in the landmark case of Waziri Amani. With due respect to the trial Magistrate, I am of the firm and considered view that the trial court erred both in law and facts to convict the appellants by relying on such weakest visuaJ identification evidence of PW1 without corroboration. Furthermore, the evidence of PW2 lacks weight because she testified before the court that she could not identify the culprits on the reason that she was threatened and ordered to hide under the bed if she would want to save her skin. PWI further testified that he managed to identify the appellants through their voices. The position of the law on voice evidence is, voice identification p e r s e is inherently unreliable because of ease with which it can be disguise. This position was also maintained by the Court of Appeal of Tanzania in the case of James Chilonji V. R, Criminal Appeal No. 101 o f 2003, at Mbeya (unreported). Mr. Matitu for the respondent argued and prayed this court to disregard a contention based on alibi as submitted by counsel for the appellants, on the ground that the same was not forming part of those grounds in the petition of appeal which was filed to the court. My opinion on this argument is that, as a matter of procedure it is pertinent for parties to the case to do any matter according to the available procedures. The same authority of Kamando Chisima V. R (supra) as rightly cited by Mr. Matitu upholds my observation. Among other things the Court of Appeal stated that; Appeals in any court are a creation of procedure. It is common knowledge that the Civil Procedure Code 1966 and the Criminal Procedure A ct 1985 provide a procedure to be followed in the processing o f civil and criminal appeals respectively. Under such laid down procedure it is provided as to what issues are to be raised and dealt with on appeal. In this case, the issue of a lib i was not one of the ♦ issues brought before the learned judge to deal with on appeal. Furthermore, even in the seven point o f the memorandum of appeal filed before the High Court, the question o f a lib i was not raised. In that situation the Court was, in agreement with Mr. Kifunda, learned State Attorney that the defence o f a lib i not being part of the memorandum o f appeal filed, there was no basis upon which the learned Judge on second appeal could deal with this issue. (Emphasis added) It is my opinion that there is a slight difference between the aforestated case of Kamando and the instant case. . The latter case is tabled before this court as a first appeal while the former was tabled as. a third appeal. In the former case it is an undisputable fact that the issue of alibi was not one of the grounds of appeal, the appellant did not raise it in his memorandum of appeal, further he did not contend on it during the hearing. Therefore it was very surprising for the appellant to fault the learned Judge for disregarding the allegation. In our instant case it is true that the issue of alibi is not disclosed in the petition of appeal, it is also true that the counsel for the appellants in his written submission to support the appeal contended at lengthy on it. It is my firm view that by doing so the counsel for the appellants has not violated the law. I justify my observation by using ground number two of the petition of appeal which states that the conviction is against the w e ig h t o f evidence. It is my observation that "weight of evidence" is a wide term which involves numerous facts sufficient for proving a case. For the purpose of this case, weight of evidence is constituted with several facts which form the materials for the decision of the court. It involves evidence which was tendered and entertained before the trial court; among them include testimonies based on the alibi. I therefore zealously hold that by virtue of ground number two of the petition of appeal the question of alib\ was properly contended by Mr. Mushokorwa. Wonderful enough the same counsel for the respondent replied at lengthy on the issue of identification despite the fact that the said issue was not forming part of grounds of petition of appeal. I think, undoubtedly, Mr. Matitu learned State Attorney was duty bound to enter a reasonable reply on the issue of alibi instead of faulting his learned colleague. At this juncture I am in full agreement with . Mr. Mushokorwa, learned counsel for the appellants who faulted the trial magistrate for disregarding the defense of alibi. The trial magistrate rejected the same on the ground that the said defense was tendered without adherence to the requirement of notice as stipulated under section 194 (4) of the Criminal Procedure Act [Cap. 20 R.E. 2002]. On this refusal, I am of firm opinion that the trial magistrate exercised his discretion improperly because the same law under section 194(6) does not detain a Magistrate or Judge to ignore completely the defense of alibi. In the case of Charles Samson v Republic (1990) TLR 39 the Court of Appeal said that: It is obvious; on a proper construction of the provisions of this section, that the court is not exempt from the requirement to take into account the defence of an 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 disclosure is not made,the court; though talking cognizance o f such defence, "May in its discretion, accord no weight of any kind to the defence". In the present case, the court took no cognizance whatsoever of the alibi, both in the summing up to the assessors and in the judgment thus occasioning a mistrial and a consequential miscarriage of justice (Emphasis added) On the strength of the foregoing authority I am of a firm considered holding that the alibi which was pleaded by the appellants was to be duly considered by the trial court. Taking in its totality, the evidence which was tendered by the prosecution before the trial court and relied by the learned trial magistrate was not sufficient to cghvict and pronounce a sentence of five years imprisonment against the appellants. The evidence of PW1 wasu not corroborated hence too dangerous for the Court to rely upon it. On the strength of/£he..[aba^ allow the appeal. The conviction is quashed and[Vtfe sentence'is set aside. I order that the appellants be released from prison forthwith, unless they are othe™i6£4awfullY held. L. W K. Uzia JUDGE 25/10/2010 Date: 25th October, 2010 Coram: Hon. L.M.K. Uzia, Judge 1st Appellant: 2nd Appellant: Present 3rd Appellant: 4th Appellant: For Respondent: Present C/C. Abdallah Ms. Ngilangwa, State Attorney Mr. Onesmo holding brief Mr. Mshokorwa for the appellants. Judgment delivered in open Court in the presence of the State Attorney, Defence Counsel and appellants.