20111128 TZCA Arusha6

IN THE COURT OF APPEAL OF TA!\!ZANIA ATARUSHA (CORAM: RUTAKANG\'l!A, J.A-c UJANDA, J.A.. And ORIYO, J.A.) CRIMINAL APPEAL NO. 107 OF 2009 1. ABDI-JULIUS@ MOLLEL NYANGUSI ..................................... 1ST APPELLANT 2. HASSAN HUSSEIN @ BALONYO/i .......................................... 2No APPELLANT 'VERSUS THE REPUBLIC ............................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Arusha) (Sambo, J.) (Dated 25 th day of November, 2008) in Criminal Appeal No. 3 of 2007 : •• ■ .~ ...... ii • • • • • • • • Ii • .:..~. '.,. JUDGMENT OF THE COURT 24th & 23 th November, 2011 RUTAl<ANGWA, J.A.: . ._:. ;:; '. The two appellants and one Peter Fundi @ Ambay, were jointly tried in the District Court of Arusha (the trial court) .for committing three armed· robberies in-the early hours of 1st May, 2005 at Mbauda area within the city of Arusha. They had denied the three charges. All the same, after a full trial, onl)' the appella'nts were fouhd guilty and convicted as charged in all l ). - ,21 - ·. :;7 ' 7 /, ,/( . \, /? -,, counts. They were sentenced to one omnibus sentence of 30 years jail. l' ' I Peter Fundi was acquitted. The appellants, dissatisfied· with the · convictions and sentences, preferred an appeal to the High Court at Arusha. The High Court (Sambo J.) dismissed the appeal agains,t-~' . the . convictions. However, the illegal ~' ;'-, :1 . '. ,;" _~; sentence was, rightly in our view, quashed and a proper sentence of'thirty years imprisonment on each count was substituted therefor. Aggrieved by 0 the High Court decision, the appellants have come to us with this joint .... appeal. ,,,' ' The joint memorandum of appeal contains three grounds of complaint. Briefly, they are faulting the two courts below for grounding the /; ·K :.. convictions on weak unreliable visual identification evidence. They ar~ also reproaching the same courts with wrongly applying the doctrine of recent posses~ion to the peculiar circumstances of this .case. Lastly, they are complaining that the courts below further erred in law by relying on their 2 :---;~,( i'-· . - · ,:r i ·. / 1( ·. ' ·'~~, _/ f · reptJqi_9te_d confessional statements which were illegally obtained and ✓ . / .' I - irregularly admitted in evidence. The evidence leading to the prosecution and the impugned convictions of the appellants was brie('rt came from PWl Venance Benard, PW2 Juma Lema, PW3 Athuman Mohamed, PW4 Fatina Issa, PWS Agnes Athony and PW6 No. F. 1416 D/Cpt Richl1rd. PW2 Juma and PW3 Athuman ''} were the victims of the armed robberies. The third victim· Ramadhan 0 Jumanne for unexplained reasons did not testify at all. All in all, it was the prosecution case that on 1st May, 2005 between 00:00 hrs and 01:00 hrs. about JO ari;ned bandits invaded the homes of PWl Venance, PW2 Juma and PW3 Athuman. The bandits who were armed with machetes, dubs and iron ba~s failed to break the grilled gate at PW1 ·.':';" I. Venance's residence and as a result th1ey never gained ingress into his house. Having thus failed, they turned their wrath on PW2 Juma and PW3 "f ; Athuman. They easily broke into the latter two's residences.· After 3 (• ' assaulting the two witnesses with their weapons, they managed to steal a few properties .• From PW2 Juma, the bandits robbed "four pairs of shoes and a bag of clothes." PW3 Athuman was rqbbect of a handbag with Tshs. 70,000/= ; in it, a Nokia Mobile phone, sandals and one Radio, make National Panasonic with serial Number CUA FB 822977. The bandits then vanished into the darkness of the night with th~ir lpot. However, PWl Venance,· PW2 () -~ Juma and PW3 Athuman claimed to have recognized the 2nd appellant among the robbers as they knew him before. The robberies were repo~ed to the police that night who acted . ·"1,J-;( ;·., I promptly. The police were led by PWl Venance; PW2 Juma, PW4 Fatina and PWS Agnes, to the house where the 2nd appellant was staying as a tenant. His room was searched· :but nothing incriminating was found . . :. . ''(:.; .· . thereJn. However, it was claimed that.the 1 a·ppellant was found hiding on st the celling of the said house by an unnamed policeman. On the roof were also found, by that policeman, two radios and one black bag, which were 4 ,•, claimed to be some of the properyies. whjch had been just robbed. The two - , . :\ . appellants and Peter Fundi were arrested that night. On 3rd May, 2005 PW6 D/Cpl. Richard allegedly took the cautioned statements. of the appellants ( exhibits PE 1 and PE 2) in which it is shown \ that they freely confessed comrriitting:the robberies. The appellants were then charged .. ,~.r :.~ ~ \ ,:t~ J, The appellants denied yeing involved in any of the three robberies. They claimed that they were not near the scene of the crimes at the time the robberies were committed. ,, In deciding the case befor~'ther, the learned trial Resident Magistrate -~, properly directed herself on the crucial issues she had to resolve. She J found these to be two, . namely:- .;·I'.• ,, .' a) Whether or not the three accused persons jointly and together stole the properties mentioned in the three counts, and 5 b) Whether or not they violently stole those properties. These two issues were answered affirmatively because the appellants had, as alleged, been identified at the scene of the crime and were within a short period found in possession of some of the stolen pr9perties. The learned first appellate }8dge .';sustained the convictions for similar C) reasons, which he found to have been buttressed by the confessional caution statements of the appellai;;i,t?'. .... .; ' ' . As we have already indicated, the two appellants are challenging these concurrent findings of fact on the basis of the reasons shown~~~ in their joint memorandum of appeal. The appellants who fended for ) themselves before us, adopted t~ese 9rounds and lodged a joint written submission in which they lucidly elaborated them. ''ii' " i 6 The respondent Republic, 0111 the ,9ther hand, was represented by Mr. Zakaria Elisaria, learned State Attorney. Mr. Zakaria supported the appeal and urged us to allow it in its e~tirety, He took this stance because, the visual .identification evidence relied art by. the- two courts below was ('_ sufficiently wanting in cogency. This evidence, he said, did not show the source of the alleged light and its intensity.· He even, quite rightly in our view, doubted if there was any light at all at the scene of the crime . because the witnesses said that the robbers were using torches. He () .referred us to our decision of WAZIRI:-:AM_ANI v. R., [1980] T.LR. 250 to bolster his argument. The learned State Attorney also invited us to hold that the doctrine of recent possession was wrongly relied on by the two courts below. This is because no sfngle witness identified those goods in court. On the cautioned statements, he urged us to expunge them. He had two basic reasons. One, they were purportedly recorded tf)ree (3) dear days after the arrest of the : / ~'1' . ,},· : . ·, ' appellants. This was a clear violation of the mandatory provisions of section 50 of the Act, which provides a basic period of fours within which to record such a statement unlesi ·an extension is granted under s. · 51, he 7 stressed. Two, since these statements were repudiated by the appellants, a trial within a trial or an inquiry ought to have been conducted. This was not . ij .· done and s9 they were not properly admitted· in evidence, he concluded . .. l In order to dispose of this appeal· conclusively, we have found it convenient to deal with each ground of appeal separately. We shall accordingly begin with the first ground, in which the quality of the. visual identification evidence is being assailed. (J It has been consistently held by the courts that visual identification evidence is of the weakest character. Such evidence, be of one or more witnesses, must be absolutely wate~igflt to justify a conviction. This is settled law. For this reason, this Court in the case of WAZIRI AMANI v. R,.. (supra) took the trouble of enumerating certain factors to be taken into account by a court in order to satisfy itself on whether or not such evidence is watertight. These include:- :- ' ' "the time the witn~ss had the accused under observation; the distance at which he observed 8 him; the conditions in which such observation occurred, if it was day or night time; whether L there was good or poor· 'lighting at the scene; whether the witness knew or had seen the accused before or nqt." The list, of course, is not exhaustive. Furthermore, this Court has repeatedly emphasized, and we do the 0 same here, that "where a witne~s )s testifying about identifying another . •;: person in unfavourable circurrista~ces/like during the night, he must give clear evidence which leaves no doubt that the identification is correct and reliable." He m_ust also "mention<1~II. aid~ to urimistaken identification, like . . • I-~- the source of light and its intensity", e.t.c. (SAID CHALLY SCANIA v. R., , Criminal Appeal No. 69 of 2005 (unreported)). This requirement covers all situations,· be it identification of a stranger or a known person (HASSAN J. KANENYERA v. R. [1992] T.L.R. 100, SHAMIR JOHN v. R., Criminal ·~ ' Appear:, No. 166 of 2004 and MENG! P.S. LUHANGA v. R., Criminal Appeal No. 222 of 2006 (both unreported)). In SHAMIR JOHN (supra)✓ this Court stressed the overriding obligation on the courts to "closely 9 examine the circumstances in which tile identification by each witness was made." ' . We have ~tudied the evidence of the three identifying witnesses (i.e PW1, PW2, and PW3). We have Jpund it to be totally wanting in all these details. They only made bare assertions that they recognised and/or identified the appellants because there was light. They said nothing on the source of that light and its intensity. They never gave evidence showing () what each appellant did at the scene of the crimes. For these reasons, we find ourselves respectfully differing yvjth _the concurrent findings of fact by the two courts below on the issue of the quality of the visual identification evidence. It is our finding that this evidence had gaping holes and standing alone could not justify the convictions c?f the appellants. We accordingly ;l . allow the first ground of appeal. We are aware that the two courts below also relied on the doctrine of recent possession as already shown. The position of the law on recent possession was recently succinctly stated by this Court in JOSEPH 10 MKUMBWA & SAMSON MWAl<AGENDA v. R., Criminal Appeal No. 94 of 2007 (unreported). We said:- "Where a person is found in possession of a property recently st9len or unlawfully obtained, 'i/ \..,: . 'Ii ...., he is presumed to have commit;ted the offence connected with the person or place wherefrom the property _was obtained~· For the doctrine to apply as a basis of conviction it must be proved, first, that the property was found with the suspect seconq, that the property is positively proved to be the property of the complainant third, that the prop'#rty . was ,., ,,,.' recently stolen from • !• ' ~.-.. •, the complainant and lastly, that the stolen thing constitutes the subject of the charge against the •f~ ,'· •, I_ accused. .. The facr:th'at tf:Je accused does not ) _claim to be the owner df 't/Je property does not relieve the prosecution of their obligation to prove the above elements... ,✓ 11 We have carefully gone through the entire evidence. We have to confess that on this evidence, the doctrine of recent possession was wrongly invoked here. This is because in the·absence of the evidence of the police officer who allegedly retrieved exhibits PE 4 and PE 5 from the ceiling, it cannot be seriously contended t; th.at the same . were found in the actual possession of the appellants or even in their constructive possession. Two, as neither PW2 Juma nor PW3 Athuman identified these properties in court either before or after they were t~pdered in evidence by PW6 · D/Cpl. Richard, it would be risk taking and unjudicial, to assume that the same CJ were positively proved to be their properties. Three, since the first two conditions were not satisfied at all, it is our finding that it was not proved that those were the properties which had been recently stolen from the complainants. - We, therefore, alloW the second ground of appeal. This leads ,_; ' - us to the last ground of appeal. ) \~i: ., .t; In the third ground, the appellants are complaining that the two courts,,below erred in law and fact in relying on exhibits PEl and PE2 which had been "obtained illegally" in breach of the mandatory provisions of sections of sections 50 and 51 of the Act. 12 l , · As we have already shown in this judgment the two appellants were st simultaneously arrested in the early hours of 1 May, 2005. The impugned cautioned statements were purportedly recorded on 03 rd May, 2005. This was, unarguably, long after the expiry of the basic periods stipulated in sections of 50 and 51 of the Act. There is no dispute that no extensions of I . time were sought and obtained b'/ the investigator(s) before these statements were recorded, if at all they were recorded as the appellants () did repudiate them and the trial magistrate failed to hold a trial within a \~-'. ~. ' . .i\ trial/inquiry to establish this-: It is settled law that any statement recorded by a police investigator . - - in utter disregard of the mandatory provisions' of sections 50 and 51 would normally be inadmissible in evidence. pursuant to section 169 of the Act. ·:' ,. J The clear stance of the law is that if such document is received in evidence by the trial court it should be totally disregarded and expunged from the f :,;'' : ,;]. record: see, for example, .ROLAND ;THOMAS @ MWANGAMBA v. R., Criminal Appeal No. 308 of 2007 and TAUTA KIKORIS v. R., Criminal Appeal No. 94 of 2009 (both unrepresented). ; 13 Furthermore, we have found out .that regardless of the alleged truthfulness and/or voluntariness of these two statements, they were also recorded contrary to the mandatory provisions of section 57 ( 4) of the Act. . Apart from the obvious fact that they were. never read over to the appellants, all the conditions s!ipulqted in this sub-section. were not complied with by PW6 D/Cpl. Richard. () This Court had occasion to comment on the consequences of failure . to comply with the provisions of sections 57 and 58 of Act, in MUSA MUSTAFA KUSA & BEATUS SHIRIMA @ MANGI v. R., Criminal Appeal No. 51 of 2010 (unreported). It said:- " ... these elaborat~1. , . , P[QVisions were not . superfluously added to the Act. They had a ) specific purpose ... they were purposely added as procedural guarantees to \this right (i.e. basic right of equality before the law) ... The conditions 14 - -------•--- -- ---~· --·- . . - -~- --- ·- -- stipulated in these two sections are cumulative and the duty imposed. is mandatory." :1 See also, TAUTA KIKORIS v. R., (supra). On account of these fatal irregularities, we accept the appellants' and Mr. Zakaria's prayer to have these two statements expunged from the record and we do so. "' () Having discarded exhibits PEl and PE2 and held that the doctrine of recent possession was wrongly applied t,,ere, we are left with the already ' ~ ' .·'' <t ' discredited visual identification evidence. This evidence, we have already shown, was not watertight. That being the case it could not be a basis of grounding the convictions-for armed robbery. We may as well mention in passing that the third count was not proved at all. This is because no .scintiHa of evidence was led to prove that any robbery was committed on 1, · _tl. -~ ) Ramadhan Jumanne, who never testified. - .-~------·----- ~n fine, we allow this appeal in its entirety by quashing and setting aside the convictions for armed robbery and the prison sentences. The 15 scintilla of evidence was led to prove that any robbery was committed on Ramadhan Jurnanne, wl10 never testified. In fine, we allow this appeal in its entirety by quashing and setting aside the convictions for armed robbery and the prison sentences. The appellants should be released ,1f~om grison forthwith unless they are otherwise lawfully held. () th DATED at ARUSHA tbis 28 day of November, 2011. ' E. M. K.,:RUTAKANGWA JUSTI€E Of' APPEAL --~ B. M. LUANDA JUSTICE OF APPEAL ' ' K.K. ORIYO JUSTICE OF APPEAL .•. If' ,,, - · Z. A. , ~~ : l-c;ertify that this is a true copy of the original. . 'ar,.;~ma . DEPUU' REGISTRAR .. : ;; ...... , 16