20111128 TZCA Arusha2

IN THE COURT OF APPEPiL OF TANZANIA ATARUSHA (CORAM: RUTAKANGWA, J.A .. LUANDA,,.J,A. And ORIYO, J.A.} . r ·I ' CRIMINAL APPEAL· NOi 107 OF 2009 1. ABDI JULIUS@ MOLLEL NYANGUSI ...... ~ ........................... ~ .. 1ST APPELLANT 2. HASSAN HUSSEIN @ BALONYO ............ J .......................... !..2No APPELLANT . . VERSUS' . ' I THE REPUBLIC •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the Judgment of th·i High Court of Tinzania at Arusha) .-\1 (Sambo~ J,.} '\ . l ,, {Dated 25th day of No~ember, 2008) in I Criminal Api>eal No. 3 of 2007 ,, ,. :,~I I ■■■,~~it ~I ■. ■■■ ■.■1 11 .. ·.. ,. : ~r. fi JUDGMENT OF THE COURT . . 24th & 28th November, 2011 RUTAKANGWA, J.A.: The two appellants and one_P~ter ,rundi @ Ambay, were jointly tried in the District Court of Arusha (ttl"e trial lourt) for commiring three armed robberies in the early hours of 1st _May, 2005 at Mbauda a~ea within the city of Arusha. They had denied the three llharges. All the bme, after a full ,,i· • ., , l· I trial, only the appellants were fo·~~d g~flty and convicted as charged in all I . ; / ·' I, 1 I ': ;I.,,,''. I~ I' counts. They were sentenced to one omnibus sentence of 30 years jail. Peter Fundi was acquitted. i\ ,, I The appellants, dissatisfie~ · withjlhe convictions and sentences, preferred an appeal to the High Court at: Arusha. The High Court (Sambo J.) dismissed the appeal against the Jonvictions. Ho1ever, the illegal sentence was, rightly in our view, quash1d and a proper sentence of thirty years imprisonment on each count was substituted therefor. Aggrieved by the High Court decision, the ap·pellants have come to ws with this joint I appeal. ·t I The joint memorandum of appeal contains three grounds of complaint. Briefly, they are faulting the Jo courts below for grounding the I convictions on weak unreliable visual idehtification evidence. They are also ' I! I !1' I reproaching the same courts with wrongly applying the doctrine of recent possession to the peculiar circuP,stancis of this case. Lastly, they are ; I ' l : complaining that the courts below furth~r erred in law by relying on their I 2 repudiated confessional statements whr were illegally obtained and irregularly admitted in evidence . ...,1 ~ ;f . •· 1 i The evidence leading t~, the Josecution and/ the impugned convictions of the appellants was brief. It ~ame from PWl Venance Benard, r I PW2 Juma Lema, PW3 Athuman Mohamed, PW4 Fatina Issa, PWS Agnes I Athony and PW6 No. F. 1416 D/Cpl. Richard. PW2 Juma and PW3 Athuman I were the victims of the armed robberies. The third jictim Ramadhan ! Jumanne for unexplained reasons did no~ testify at all. ii J. ~ All in all, ,it was the prosecution. . ca!e ., that on 1st May, I 2005 between 00:00 hrs and 01:00 hrs. about \o ,arnild bandits invaded ', ·. ,I I the homes of ' j PWl Venance, PW2 Juma and PW3 Athuman. The bandits who were armed with machetes, clubs and iron bars failJ to break the gtilled gate at PWl Venance's residence and as a result th,ey never gained ingress into his I I house. Having thus failed, they turned t~eir wrath on PW2 Juma and PW3 j 1, Athuman. They easily broke 'irilto th~· latter two's residences. After 3 r ' .~ssaulting the two witnesses with their wt pons, they ma.naged to steal a few properties. i From PW2 Juma, the bandits robbe6 "four pairs of shoes and a bag i of clothes." PW3 Athuman was robbed 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 8212977. The bandits then vanished into the darkness of the night with their 1Jot. However, P01 Venance, PW2 Juma and PW3 Athuman claimed to hJve recognized the 2nd appellant among the robbers as they knew him befbre . . 11 ·:: ,j ,I The robberies were reported to the police that night who acted ~ promptly. The police were led by PWl -rnance, PW2 J~ma, PW4 Fatina and PWS Agnes, to the house where ttie 2nd appellant was staying as a tenant. His room was searched but · ~othing incriminating was found therein. However, it was claimed that thJ 1st appellant was found hiding on 1 the celling of the said house by an unnJmed policeman. 0n the roof were also found, by that policeman, tvyo radils and one black bag, which were :.\, "'•' 4 claimed to be some of the properties whiqh had been just robbed. The two appellants and Peter Fundi were arrested . Jhat I night. On 3rd May, 2005 PW6 D/Gpl. Ri~h ~rd allegedly took the cautioned 1 statements of the appellants (exhibits PEjl and PE 2) in 1hich it is shown ' I that they freely confessed comm_itti~g th~ robberies. Th, appellants were then charged. The appellants denied being involved in any of the three robberies. They claimed that they were not near th~ scene of the er' imes at the time the robberies were committed. . · · i I In deciding the case before her, thk learned trial Resident Magistrate properly directed herself on the'· cruciaJ issues she haj to resolve. She I I found these to be two, namely:- I I a) Whether or not the three accused persons jointly and together stole the properties mentioned in the three counts, and I fl, I.(, '' 5 b) Whether or not they violentiV stole ilose properties. l ; Ii ! These two issues were answered affirmatively because the appellants had, II I as alleged, been identified at the scene /of the crime and were within a I . short period found in possession ~f some pf the stolen properties. ;, "' /1 I . . .. : I Ii I ' ' The learned first appellate judge su~tained the convictions for similar reasons, which he found to ha~e beei I buttressed by i, the confessional II caution statements of the appellants. : I As we have already indicated, thl two appellant~ are challenging i i ' ' II I these concurrent findings of fact 0n th~··pasis of the rea~ons shown in the 1 I in their joint memorandum of appeal. The appellants who fended for ' ' I themselves before us, adopted these grlounds and lodged a joint written ! .. · . !· I submission in which they lucidly e·laboratfo them. 6 /J The respondent Republic, on the other hand, was represented by Mr . . ,. : t~ ' ~·' Zakaria Elisaria, learned State Attorney.· Mr. Zakaria supported the appeal and urged us to allow it in its entirety. He took this stance because, the visual identification evidence relied on . 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 i:ntensity. He even, q4ite 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 WAZ~RI AMANI v. R., [1980] T.L.R. 250 to c:- i,i 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 single 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 three ; (3) clear days after the arrest of the . . l,i,. ·' appellants. This was a clear vi.olation 1·of the mandatory provisions of section 50 of the Act, which provides a basic period of fours within which to record such a statement unless an extension is granted under s. 51, he 7 . ~ressed. Two, since these statem:nts :eje repudiated byfhe appellants, a trial within a trial or an inquiry ought to hdve been conducted. This was not -s'. "' ' i' .'· .; , ;: I done and so they were not properly adm'itted in evidence, he concluded. r, I In order to dispose of this appeal conclusively, we have found it 1 convenient to deal with each ground of appeal sepa rately. We shall 11 I accordingly begin with the first Q[OUn~, ·.In which the quality of the visual identification evidence is being assailed. ' ,, i I '. ·dIJ. It has been consistently held by tHe courts that visual identification evidence is of the weakest character. S~ch evidence, b~ of one or more witnesses, must be absolutely watertigJt to justify a c~nviction. This is .I I fl I settled law. For this reason, this Court i~ the case of WiZIRI AMANI v. R. (supra) took the trouble of enumerati~g certain factors to be taken into . . :,: . I I account by a court in order t~: satisr} itself on whether or not such 11 evidence is watertight. These include:- I "the time the witnE!ss haJ the accused J.nder observation; the distanc~ J:. which he ob~rved 8 him; the conditions': in Vifhich such observation occurred, if it was day or night time; whether I there was good or poor lighting at the scene; .)(a whether the witnes's r' knew or had seen the accused before or not." The list, of course, is not exhaustive. i Furthermore, this Court ha$. repeatedly . emphasized, and we do the same here, that "where a witness is testifying about identifying another person in unfavourable circumstances, like during the night, he must give ... clear evidence which leaves no doubt that the identification is correct and I reliable." He must also "mention all aids to unmistaken identification, like 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 Appeal No. 166 of 2004 and MENGI P.S. LUHANGA v. R., Criminal ' Appeal No. 222 of 2006 (both unreported)). In SHAMIR JOHN (supra), ;. l,.' ' ; , ~ this Court stressed the overriding·· obU~ation on the courts to "closely 9 examine the circumstances in which the ictlentification by each witness was I . I made." I , I! I ! We have studied the evidence of tHe three identifying witnesses (i.e PWl, PW2, and PW3). We have found it to be totally wanting in all these details. They only made bare assertiops that they recognised and/or identified the appellants because there Js light. They said nothing on the source of that light and its intensity. Thly never gave evidence showing l ! what each appellant did at the scene of the crimes. For these reasons, we i" '' ··i find ourselves respectfully differing with the concurrent findings of fact by the two courts below on the issue of the quality of the vi sual identification 1 evidence. It is our finding that thi~'. evidere had gaping holes and standing alone could not justify the convictions @f the appellants. We accordingly ,i I ! allow the first ground of appeal. · If ,I :i I;f I 'I ! We are aware that the two courts Jelow also relied on the doctrine of :1 recent possession as already shbwn. T~e position of tjhe law on recent possession was recently succinctly stated by this Court in JOSEPH I '! 10 I , I MKUMBWA & SAMSON MWAKAGENDA v. R., Criminal Appeal No. 94 ![ I . of 2007 (unreported). We said:- I: i 1 "Where a person is found1 in possession of a I .H . ,} property recently stolen or unlawfully obtained, he is presumed to have co~mitted the offence connected with the.,person I or place wherefrom '.' 4~ ' ~- the property was obtained For the doctri11e to I apply as a basis of conviction, it must be proved, first, that the property }as found with the 1 suspect, second, that the 0roperty is positively proved to be the prope,J of the compla~nant, .,+, . 1· . third, that the property was recently stolen from the complainant, and last/J that the stolen thing , I , 1 constitutes the subject of tfe charge against the accused... The fact that tfe accused doef not Ii claim to be the owner of the property does not relieve the prosecution J their obligatiqn to prove the above elements... !" ,I . Ii ;''~ ;; ,i 11 We have carefully gone through the entire evidence. We have to I 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 r~trieved exhibits PE 4 and PE 5 from the • I~ ' I ceiling, it cannot be seriously contended that the same were found in the actual possession of the appellants or even in their constructive possession. Two, as neither PW2 Juma nor PW3 1Athµman identified these properties in ' court either before or after they were tendered in evidence by PW6 D/Cpl. Richard, it would be risk taking and unjudicial, to assume that the same I 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 Whith ~· had been recently stolen from the . ' complainants. We, therefore, allow the second ground of appeal. This leads us to the last ground of appeal. In the third ground, the appellants are complaining that the two courts below erred in law and fact in relying on exhibits PE1 and PE2 which had been "obtained illegally" in breach of the mandatory provisions of sections of sections 50 and 51 of the ,• Act.:. 12 ·:t,; 'i ;: i ~;f ',' 11 ' • i As we have already shown in this jldgment the two appellants were 11 simultaneously arrested in the early hourJ of 1st May, 2005. The impugned . . I rd i cautioned statements were purportedly recorded on 03 May, 2005. This 11 was, unarguably, long after the expiry df the basic periods stipulated in sections of 50 and 51 of the Act. -~here iJ no dispute that! no extensions of time were sought and obtained by the investigator(s) before these statements were recorded, if at all thew were recorded as the appellants did repudiate them and the trial magist~ate failed to hold a trial within a I trial/inquiry to establish this. Ii II I I It is settled law that any statemenJ recorded by a l)Olice investigator i I ' ~ in utter disregard of the mandatory provi~ions of sections 50 and 51 would normally be inadmissible in evidence pJrsuant to section 169 of the Act. The clear stance of the law is that,_if sue~- document is received in evidence '; If ,. by the trial court it should be totally di~regarded and expunged from the I I record: see, for example, ROLAND THOMAS @ MWANGAMBA v. R., . i Criminal Appeal No. 308 of 2007 and. TAUTA KIKORIS v. R., Criminal Appeal No. 94 of 2009 (both unrepresenJed). II 13 i i ' . I, Ii -..;- 'l . •• ,1 {\ 4 ..; .. ·.. . r •.: I . / i Furthermore, we have found out II that regardless of the alleged I truthfulness and/or voluntariness of thesJ two statements, they were also l 57 (4) of the Act. i recorded contrary to the mandatory provisions of section l Apart from the obvious fact that the' were never read over to the appellants, all the conditions stipulaterll in this sub-section were not , II complied with by PW6 D/Cpl. Richard. This Court had occasion to ~bmmJnt on the consequences of failure II , to comply with the provisions of sectidns 57 and 58 of Act, in MUSA MUSTAFA KUSA & BEATUS SHIRIMA@ MANGI v. R., Criminal Appeal No. 51 of 2010 (unreported). It said:- " ... these elaborate provisions were not superfluously added to thr Act. They hiid a specific purpose ... they we1e purposely added as procedural guarantee~ to this right (i.e. rbasic right of equality before the law) ... The conditions l. 'I 11 14 J [ stipulated in these two sections are cumulative I I and the duty imposed is man1atory." I I ';.1I . . ,. I i See also, TAUTA KIKORIS v. R., (supra). On accou7t of these fatal 11 irregularities, we accept the appellants' ~nd Mr. Zakaria's prayer to have i ! i these two statements expunged from the record and we dp so. I II i I Having discarded exhibits PEl and fE2 and held th~t the doctrine of 1 . I recent possession was wrongly a~plied ~ere, we are left/ with the already discredited visual identification evidenc~J This evidence, ,we have already II I shown, was not watertight. That being tpe case it could lnot be a basis of / 1: ' grounding the convictions for armed rob,ery. We may as well mention in passing that the third count was not Rroved at all. Triis is because no I . 1 scintilla of evidence was led to prove th~_, t any robbery w[as committed on , · Ii Ramadhan Jumanne, who never testified/ · i I': In fine, we allow this appe~I in itf entirety by quJshing and setting aside the convictions for armed robberjv and the prisdn sentences. The I' ! 15 ,,. • , •scintilla of evidence was led to prove thJt any robbery 1s committed on Ramadhan Jumanne, who never testified.I In fine, we allow this appeal in its! entirety by quafhing and setting aside the convictions for armed ,ro!>beJ and the prison sentences. The J<t; i..i::, -·l· appellants should be released :fr,om ~'rison forthwith unless they are I otherwise lawfully held. th DATED at ARUSHA this 28 day of November, 2011. E. M. Kii RUTAKANGWA 1· JUSTICE OF APPEAL B. M. LUANDA ~(· 1:; . i! JUSTICE::OfA.PPEAL K.K. ORifO I JUSTICE OFAPPEAL I 1 I certify that this is a true copy of the original. I Z(~-- DEPUTY REGISTRAR 16