20111117 TZCA Mwanza

0IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: NSEKELA. l.A., MASSATI, l.A. AND MANDIA, l.A.) CRIMINAL APPEAL NO. 114 AND 115 OF 2009 YOHANA DIONIZI SHIJA SIMON ••.•.••••••..•••••••....•••••••...••••••.....••••••••.••••••••..•.•.••••• APPELLANTS VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Application for Decision of the High court of Tanzania at Bukoba) ( Lyimo J.) dated 25th day of March, 2010 in Criminal Appeals No. 72 of 2008 and 87 of 2008 ..•................ JUDGEMENT IN THE COURT 14th & 18th November, 2011 MASSATI, J.A.: The District Court of Biharamulo, in Kagera Region had convicted the appellants of the offence of armed robbery contrary to section 287A of the Penal Code (Cap 16 RE 2002) and sentenced them to 30 years imprisonment and twelve strokes of the cane each. Their consolidated appeals to the High Court (Lyimo J) were dismissed. This is their second appeal. 1 The facts as found by the trial court are that on 30/6/2007 at about 8.00 pm PWl, RAJABU ATHUMANI who lives at Nyamilembe village with his wife and step daughter SHADIA SONGORO, PW2, was visited by some thugs who ambushed the two women who were outside the house, held PW2 hostage, and forced PW1's wife to deliver the message to him. Soon, the thugs joined the wife after forcefully entering into the house by breaking open, the door with a stone. There at gun point they demanded for money. PW1, who was a fishmonger, happened to have some Tshs. 980,000/= cash, around. He was forcefully separated from that cash. A, video deck and a mobile phone, make, Nokia were also stolen from PWl, After satisfying their lust, the thugs released PW2 and disappeared into the dark night. The prosecution case was that it was these appellants who committed those atrocities. They paraded the evidence of visual . identification from PW1 and PW2 and produced 4 empty cartridges alleged to have been fired from an SMG gun which the thugs were wielding. The trial court found PWl and PW2 credible witnesses, and so rejected the appellant's defences of alibi. 2 Before this Court, the appellants appeared in person and filed separate memoranda of appeal. Essentially, the appellants' major grievance is on the sufficiency of visual identification by PW1 and PW2. The appellants have referred to us, a number of decisions of this Court in support of their arguments, namely, RAYMOND FRANCIS vR (1994) TLR. 100, SHABAN BIN DONALD Vs R (1940) EACA 60 and MARWA WANG'ITI MWITA AND ANOTHER vR Criminal Appeal No. 6 of 1995 (unreported) They urged us to allow their appeals. Mr. CASTUS NDAMUGOBA, the learned State Attorney, who appeared for the respondent/Republic, did not feel like supporting the convictions. He submitted that the appellants' complaints about insufficiency of evidence of visual identification was well grounded; because first, much as there might have been electric light, its intensity was not disclosed; second, even if the conditions of identification were that favourable, that in itself was not sufficient, it must also have been evaluated in the light of the credibility of the witnesses (He referred to us the decision of MAFURU MANYAMA AND TWO OTHERS vs Criminal Appeal No. 256 of 2007; (unreported) thirdly, the credibility of PW1 and PW2 (the only witnesses 3 of identification) was of doubtful value, because, not only did they both fail to name the suspects whom they claimed to know, to the first person in authority they met (PW3) , but also their explanation as to how they both knew the second appellant was implausible (as one described him as a neighbour, while the other described him as someone who was not a stranger. But, lastly, the learned State Attorney. submitted that there was a fundamental contradiction as to how' and when the appellants were arrested. PW3 said, it was PW2 who was one of the people who informed him where the appellants were and pointed them to him, but PW2 told the trial court that she did not know when how the appellants were arrested. Mr. Ndamugoba submitted that with those discrepancies in the prosecution case, the conviction of the appellants was not safe. This is a second appeal. At this stage the Court of Appeal would be very slow to disturb concurrent findings of fact made by lower courts, unless there are clear consdirections or misapprehensions on the nature and quality of the evidence, especially if those findings are based on the credibility of witnesses. (See SALUM MIHANDO vR (1993)TLR. 170. But in SHABANI DAUDI vR Criminal Appeal No. 28 of 2001 (unreported) it 4 was held that assessment of credibility of witnesses, in so far as demeanour is concerned is the monopoly of the trial court. But credibility can also be assessed first, by looking at the coherence of the testimony of the witness, and secondly by considering it in relation to the evidence of other witnesses, including that of the accused person. In these two ways, credibility of a witness can be determined even by a second appellate court. In the present case, however, we think, the two courts not, only misapprehended the nature and quality of the evidence, and particularly on the latest pronouncements of this Court about visual identification, but also failed in their duties to critically assess the credibility of the two witnesses of visual identification. Undoubtedly, the law on visual identification is that such identification must be watertight in order to found a conviction (WAZIRI AMANI vR (1980) TLR. 252. But in JARIBU ABDALLAH vs Criminal Appeal No. 220 of 1994 (unreported) this Court stated:- 5 ''In matters of identification, it is not enough merely to look at factors favouring accurate identification, equally important is the credibility of the witness. The conditions for identification might appear ideal but that is not guarantee against untruthful evidence. The ability of the witness to name the offender at the earliest possible moment is in our view reassuring though not a decisive factor" The above passage was quoted with approval in MARWA WANGITI MWITA AND ANOTHER vR Criminal Appeal No. 6 of 1995 (unreported) but framed somehow differently:- "The ability of a witness to name a suspect at the earliest opportunity is an important assurance of his reliability, in the same way as unexplained delay or complete failure to do so should put a prudent court to enquiry" Both decisions were cited in the MAFURU MANYAMA case referred to us by Mr'. Ndamugoba. 6 Now, in the present case, the trial court was told by PW1 and PW2 that the second appellant was either not"~ stranger" or "a neighbour". We are unable to comprehend, if the second appellant was a neighbour as described by PW2, and the two witnesses live in the same house, why would not PW1, know him, or even name him or his residence immediately, to the police (PW3) who visited the scene of crime the next morning. If these witness claim that they knew both ;appellants, why didn't they give PW3 sufficient descriptions when the offence was first reported to the i police. And why should PW3 and PW2 give different stories about when and how the appellants were arrested. We think the above were material considerations that the courts below should have taken into account in assessing the credibility of the prosecution witnesses. When considering the credibility of witnesses, all the evidence on record must be considered and assessed and not just selected portions of the evidence. The existence of contradictions or inconsistencies in th~ evidence of a particular witness ! and one's case as a whole, is a basis for finding of lack of credibility, provided that the said discrepancies are serious, sufficient and go to the root of the issues being adjudicated. The trial court failed to do so. By 7 not critically reevaluating the evidence and the law, the High Court also abdicated its duty as the first appellate coLrt. These misdirections have, in I our view, resulted into injustice because the prosecution case as a whole lacked coherence on the issue of the ide7tification of the appellants. The injustice makes the convictions of the appellants unsafe. To that extent we agree with Mr. Ndamugoba. I I I We therefore allow the appeals. We quash the convictions and set I aside the sentences. We order their immediate release from prison unless they are otherwise lawfully held. DATED at MWANZA this 17TH day of November, 2011. II H. R. NSEKELA JUSTICE OF APPEAL I S. A. MASSATI JUSTICE OF APPEAL I W. S. MANDIA I JUSTICE OF APPEAL 8 I certify that this is a true copy of the original I . ·. BAMPIKYA SENIOR DEPUTY: REGISTRAR COURT OF,~PPEAL g: