20111128 TZCA Arusha

IN THE COURT OF APPEAL I OF TANZANIA ATARUSHA _. I. · (CORAM: RUTAKA GWA. J.A.• LOANDA,1:J~A .• And'ORIYO. J.A.} CRIMINAL APPE~L NO. 8 OF 2009 I 1. JOHN WILBARD l EOLONCHI "\ •• l I 1 2. HABIBU MIKIDADI LIGANGA .. ~f~:.•". io . . . 1h................................ APPELLANTS I VE~SUS . . . THE REPUBLIC. ■ ••• ■ ••• I. I •••••••••••••••••••••••. ~ •••••••••• ■ ••• ■ . . . . . . . . . . . . . . . . ■•■ ••••• RES PON DENT ! I I (Appeal from the Judgment of the High Court of Tanzania at Moshi) - Ii (Rugazia, J.} I. I Dated the 14th c;tay' of November, 2008 , I· . t 1'" . . ,ii Criminal Aobeal No. '47 _____ 1______ _ of 2007 I: . JUDGMENT OF THE COURT 11th & 28th November, 2011 I 1 I . LUANDA. J.A.: Oh 11th Decerber, 2004 be~eefl -19:45 hours and 20:00 hours, a group of armed robl!>ers invaded KifJru Petrol Station and the area adjacent and stole money an6 cellular phone from the complainants. The appellants d JOHN NEOLONCJI, HABIBU ,,MiKlDADI (henceforth the 1st and 2" ; "t. I- . .t:. • • I ··1 • . I appellants respectively) and three others who are at large were said to ,. I '. 1 ,·~ ' ::, . i _.','f'i.,. (. 1· ·,, ,.t;, .. •. I ,"' have committed the offences. They' were charged in the District Court of ' ' i Mwanga at Mwanga with four counts namely, one count of conspiracy to ' ' ,., commit an offence and three c:~unts(::'.'of armed robbery. The appellants I were acquitted in respect of conspiracy count but convicted with three i i counts of armed . robbery and ~ach was sentenced to 30 years '·\ ·, ;,, ; /le imprisonment for each robbery count. The sentences were ordered to run concurrently. Dissatisfied, the appellants unsuccessfully appealed to the High Court of Tanzania, Moshi Registry. Still aggrieved, hence this second appeal. i I The appellanJ have filed a joint memorandum of appeal consisting of ! six grounds. However, the main grounds which will dispose of this appeal : ' : Ji\:.. are (i) visual identification (ii) identificatidn parade and (iii) confession. ' I In this appealj the appellants appeared in person and so they fended I . for themselves; wh~reas the respondent Republic was represented by Mr. Zakaria Elisaria, learned State Attorney. Mr. Zakaria did not resist the appeal. 2 \ r_. J.{J ''1'11'· Mr. Zakaria submitted that Izadini Ramadhani (PW1) who was the Manager of Kifaru Petrol Station and Selemani Mfinanga (PW3) the ' proprietor of the sad Petrol StaHbn stated in their evidence that they did not identify any amJng the robbers. But Hussein Sefu (PW2) an accountant of the Petrol Station claimed to :.'have identified the 2nd appellant; while ' ' ' iri. Fatuma Mussa (PWS) the wife of PWl living adjacent to the Petrol Station ! and Mahanyu Bakari (PW4) a child iof tender age and who was on leave i and staying with PW1 and his aunt PWS, claimed to have identified the 1st appellant. ,< It is Mr. Zakaria's submis~fb~, ·a'·nd correctly in our view, that the circumstances were not conducive for correct identification. It is in evidence that PW2 was ordered tp lie down facing the floor. He complied 1 i s with that order. He however, said tho'ugh he was facing the floor, he I . I managed to twist His head and saw the 2nd appellant. He went further to say the 2nd appellaht had a gun and had a wound on his face. When he I ! ' ' nd was cross examined by the 2 app~llant, he said, we reproduce:- ; I i 3 ' ' i J, "You Jere wearing a cil~ covering your face and ,, I 'I I i If the 2 appellant was wearing a ca1p covering his face how did PW2 see a nd ]I wound on his face? I ., I ; .) ' I' ' PW4 claimed !to have identifikd the 1st appellant because he is a ,, ,. ' familiar face and he used to see him .at Mererani where he was schooling. PW4 and PWS said there was electrit~ light. ! I ' i . One of the farors to be taket i~to consideration when the question of identification is discussed is familiarity (see Waziri Amani v. R., [1980] 1 TLR 250). But famit1arity will onlylhbld,,.When it is shown the conditions for correct identificatio are conducive as one might be honest but mistaken. So, before a court relies on the e~idence of familiarity as a factor to be .,. JI considered in identification it sho~1b firsibe shown that the conditions for proper identificatioi were conducivJ.. ' ~ 4 -. In this case PW4 and PWS merely said the place was lit by electricity light. However, its intensity was not shown or stated. In Issa s/0 Mgara v. R., Criminal Appeal No. 37 of 2005 1 (unreported) the Court said:- I "We wish to stress that(ven in recognition cases !\, where such evidence may be more reliable than ' identification of a stranger' clear source of light and its intensity is of pJamount importance. This is because, as occasiof!ally held even when the .,. . , .,. ,. I . h w1t.ness 1s purpo, ,mg ,o recognize someone w. o I he knows, as was _;the case here, mistakes in recognition of close )elatives and friends are I I often made. " I 5 In view of the foreg, ing, the evidence of,'.visual identification cannot hold. I ' -~ I Next is the eyidence of identification parade. Mr. Zakaria said the identification parade was not properly conducted. It was conducted by I ' police officer of thel'rank below Sub-Inspector. It is on the record that the identification parad j was condu,~ed ,bY D/Sgt Simon Ngoi (PW6). And when he was asked by the 1st appellant whether he had authority to conduct the parade, PW6 said he had power to conduct identification parade. But according I:to Rule 2 (b) of the , Police General Order Number 231, I I officers below the rank of sub-inspector are not permitted to conduct identification parades. The Rule reads:- 1 ! I ;· i ''2 (b) Although the officer in charge of the case may be present, he will take no part in I conduqting the parade.. ft,,e officer conducting the pa~ade must be an officer unconnected with 6 ' ' ' I the case and whenever possible, a Gazetted Officer. Officer below the rank of Sub- I . , ·" • fl•. . Inspe~or are not permitted to conduct identification Parades." ' (Emphasis supplied). From the above Rule, PW6 had no power to conduct an identification ! I parade. So, the evidence arising from that parade has no evidential value. Finally is the confession. Mr. Zakaria said and correctly that the , ....l •. ' v·r,•. confession is vague. It is not shown iwhether really the 1st appellant I confessed. We: hav¢ read the confessional statement of the 1st appellant. Indeed the maker disassociated himself from the offences. The confession has no evidential value. In sum, we al!ow the appeai'~ qucfsh the convictions and set aside the sentences. The app~llants to be released from prison forthwith unless they are held in connection with another matter. 7 ' J Order accordingly. I I . I, DATED at ARUSHA this 28~h· day of November, 2011. . 11 . •, '< I ' f't\. I: /' I ,, i E.M.K. RUTAKANGWA JUSTICE loF APPEAL I ! I . B. M. LUANDA JUSTICE !oF APPEAL .} . ti . K.K. ORIYO JUSTICE OF APPEAL I certify that this is a true cciiiJ'\Jfl:be original. l • l ~ Z.A.l'Ra DEPUTY REGISTRAR I 8