20111126 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LUANDA, J.A., MASSATI, J.A. And MUGASHA, J.A.) CRIMINAL APPEAL NO. 48 OF 2009 I 1. NGOSHA BUJIKU 2. JUMANNE HUSSEIN 3. JUMANNE RAMADHANI L~!~:. . . . . . . . . . . . . . APPELLANTS THE REPUBLIC ••• ■■■■■■■■ ••••••• ■ ••••••••••• I I .t ..... I ■■■ I ■■■■■■■■■■■■■■■■ RESPONDENT I I •• (Appeal from the decision of the High Court of Tanzania at Tabora) I I (Kaduri, J.) I dated the 26th day of November, 2008 in (D) Criminal Appeals Nos. 119, 124,127,128 and 129 of 2004 I --------------- JUDGMENT OF THE COURT ' I 24th & 2ih November, 2015 LUANDA, J.A.: I The appellants NGOSHA BUJIKU, JUMANNE HESSEIN, JUMANNE RAMADHANI (hereinafter referred to as the 1st, 2nd and 3rd appellants I respectively) with three others, were jointly charged in the District Court of Nzega sitting at Nzega with armed robbbry. The appellants with those three were convicted as charged and each was 1sentenced to 30yrs imprisonment and 12 strokes of the cane. In addition all were ordered to pay Tshs. 350,000/= as compensation to the victim of the offence for unrecovered properties. All six were aggrieved by the decision of the District Court, they appealed to the High Court (Tabora Registry). Those other three were successful; whereas the appellants were not. The appellants have come to this Court on appeal. I The Republic/respondent, through Mr. Miraji Kajiru, learned State Attorney, did not resist the appeal lodged by the appellants and rightly so. Each appellant has filed a separate memorandum of appeal, each consisting three grounds. The grounds raised are similar1 but the major one is about visual identification. I The prosecution case was that on the fateful day around 01.00 hrs while I Robert Nziku (PW1) was at his homestead, a ground of about six people forced open the door and entered. The bandits s~ot in the air with the view to scaring would be rescuers to remain where th~y were. PW1 could not put any resistance, he ran away through a back door. And while running he raised an 1 alarm seeking assistance. I After sometime (not indicated in the evidence) in '' the company of some ' village mates to whom not only he reported the incident but also mentioned some bandits as the 1st appellant, 3rd appellant and Maganga Mhoja who was set free by the High Court returned to his house. The bandits had already gone. On checking he discovered a number of items stolen. As to how he managed to identify the three appellants, PW1 said it was through the torches the bandits had in possession. But he did not disclose its number, who were holding and no evidence was shown as to the intensity of the light it illuminated. The appellants denied ,to have committed the offence. I In supporting the appeal Mr. Kajiru said the conviction of the appellants I rests solely on visual identification. It is his submission that the conditions prevailing were not conducive for correct visual identification as stated in Waziri Amani VR [1980] TLR. 250 where the Court said where the evidence relied upon to convict is that of visual identification, then the Courts should not act on such evidence unless all the possibilities of mistaken identity are eliminated and that the evidence before it is absolutely water tight. For instance Mr. Kajiru said PW1 did not state the brightness of the light of the torches it illuminated. Indeed that is one of the factors that ought to have been taken into consideration when visual identification during night time is involved. In Issa Mgara @ Shuka VR., Criminal Appeal !}Jo. 37 of 2005 CAT (unreported) the I Court said:- I "It is not enough to say that there was light at the scene of 1 crime, hence the overriding need to give sufficient details of the source of light and its intensity" Mr. Kajiru went further to say that, PW1 did not state the time spent in observing the bandits, the distance from the place he positioned himself vis-a-vis the bandits. We have carefully gone through th~ record. It is true to a large extent that the prosecution case depends on visual identification. In upholding the finding of the trial District Court, the High <;:ourt said the following:- ' ''I wish to begin with the issue of identification. The prosecution had a single witnesses (sic) of identification who is PW1 the victim of the robbery. The identification was by torch light the bandits had on their possession. In his evidence, PW1 stated that in t~e course of searching for 3 I. I items to steal the torch beam fell on some of the bandits hence enabling him to identified {sic) them. ' This is different from saying that the light was directed to him. The case of said {sic) Chaly Scania VR Cr. App. No. 69.2005 is distinguishable. The I appellants identified at the scene were familiar to PW1. " [Underscoring ours] I The above passage is not supported by the evidence of PWl. When testifying PWl said:- I "Then the bandits entered and bioke the second door of my bed room which fell on my bed. They torched me and I I possessed an axe. Then they were afraid and turned back and went outside and started planning to shoot me and the I st 1 accused. "[Emphasis Ours] The evidence of PWl as recorded by the trial District Court does not indicate PWl to have identified the appellants in !the course of searching for items to steal and in the process the torch light fell on some unspecified bandits who I were identified as stated by the High Court! Rather PWl claimed to have identified the bandits after a torch light was shone most probably on his face. If we go along with this scenario, then it is highly doubtful for any person to identify his assailants when a torch light is1directed to him; This is because such light would have a temporary blinding effect of his eyes. I In our case it is possible that PWl was dazzled that is why he did not say I the number of torches the bandits had iii possession. Further he did not also mention among the bandits who were in possession of the torches. This further ! 4 I shows that the conditions prevailing were not conducive for correct visual identification. It is doubtful whether PWl ~eally identified the appellants. That evidence was weak to ground conviction. j I We entirely agree with the Mr. Kajiru that the appeal has merits. We allow I the appeal and quash the conviction. W,e set aside both the sentence and compensation order. The appellants are to be released from prison forthwith l unless they are detained in connection with another matter. I . It is so ordered. I I DATED at TABORA this 26th day of November, 2015. I I B.M. LUANDA JUSTICE OF APPEAL l I S.A. MASSATI JUSTICE OF APPEAL I I S. MUGASHA JUSTICE OF ~PPEAL j II , I certify that this is a true copy of the origi~al. I P.~ SENIOR DEPU~ REGISTRAR COURT OF APPEAL . lack of merit. Undeterred, the appeJnt lodged this appeal against the decision of the High Court. The, prosecution case at the trial Court can be summarized as follows:- On 15 July 2001 at 17:00 hours at Lkole 'A' Refugee, Settlement Camp, Ngara District, Kagera Region, PW2, Mhella Gatabazi was at the home of the I! fried, PW3 Akizimana Jaki. They heard someone crying for help and they rushed to the scene where they allegJly found the appellant raping PW1 (prosecutrix), Domitila Nduwimana. It is alleged that the appellant ran away on seeing PW2 and PW3. Apparently ,PW2 and PW3 caught up with the appellant and both the assailant and th· prosecutrix were taken to a Police Station where PW1 was given a PF3 ("EJibit Pl") for medical check up. In defence, the appellant denied to· have raped PW1 though he admitted knowing each other. The appellant's memorandum of aP,peal listed five (5) grounds of appeal which boil down to two major complaintsl- r.t-l:- I,.. , .._;. .-r,~ ·~:,:'•,;:, ~ s~i~;: 2 Attorney stated that PW1 's testimony did not contain an iota of evidence of the essential ingredient of "penetration" in a rape case. E invited the Court to hold that the appellant was wrong convicted of rape in the absence of evidence of penetration. The issue before us is whether or not the appellant raped PW1. Section 130(4) (a) of the Penal Code as amended by the Sexual offences (Special Provisions) Act No. 4 of 1998 states:- "penetration however slight is sufficient to constitute the sexual intercourse, necessary to the offence. " Starting with the trial Court's failure to comply with the provisions of . S.240 (3) of the Criminal Procedure Act, we are in entire agreement with the learned State Attorney that dictates of Section 240(3) were more honoured I default by the trial Court. It has been repeatedly stated by this Court that in cases where the trial Court has failed to inform the accused person of the right provided in section 240(3), the medical report may be discounted. See court's decision in Thomas Sakwinu @Ramadhani V R, Criminal Appeal 4 No. 453 of 2007 (unreported). We accordingly discount the medical report evidence (PF3) tendered in the trial Court and admitted as Exhibit "Pl" As for the other complaint, PWl is quoted to have testified as follows at the trial:- ''I remember on 15/7/2001 at 5.00 p.m. I was on the way back to my home coming from Lukole ''.A" then I came across Simeon Chiza, the accused who did get hold of me. I (sic) let me do1wn where he unweared (sic) my clothes and then raped me...................... He raped me after he had unweared (sic) his trousers and the pants'~ We agree with the learned State Attorney that PWl or any of her two witnesses, PW2 and PW3 did not state clearly at any point in their testimonies that there was penetration of the appellant's penis into her vagina. PWl was the principal prosecution witnesses and she was expected to be more forthcoming and specific in her testimony to establish whether there was penetration, however slight, so as to constitute the offence of rape. Otherwise we are of the considered view that PWl's testimony was two general and doubtful whether the appellant actually committed the offence of 5 . rape. See God Kasenegala Vs R Criminal Appeal No. 10 of '2008( unreported). In the event and for the stated reasons the appellant is given the benefit of doubts. We therefore allow the appeal, quash the conviction and set aside the sentence. The appellant is to be released from prison forthwith unless otherwise lawfully held. DATED at MWANZA this 28th day of September, 2011 E.M.K. RUTAKANGWA JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL K.K. ORIYO JUSTICE OF APPEAL I certify that this is the true copy of the original .. /;i- ""' ,:.- J.S. :GET;?<=' 11 , . C, . ~,:\~\ { ' DEPUTY REGISTRAR :,;~:c:;.dlf?'·\ ~. :·, " . /1 t>! 1· COURT OF APPEAL ;,; ~Jtfjj~) /. --••r• 6 ..£'"(.~,(.' r .. ,'7"'.' , ' -.. I . I IN THE COURT OF A,,EAL OF TANZ~NIA AT MWANZA CRIMINAL APPEAL NOS. 34, 35, 36, 66 OF 2009 I (CORAM: RUTAKANGWA, J.A., KIMARO, J.A., And ORIYO, J.A.) , . I : SAMWEL MWITA ........................................................ 1 APPELLANT ST I I BETSON HAMISI .......................................................,. 2 APPEL'LANT . ND ALFRED RAPHAEL @ KIDOLE ........... . I !. ......................'. . 3RD APPELLANT TH . I CHARLES ANDREA @BUDODO .................................., 4 APPELLANT - I VERSUS THE REPUBLIC ... ■■■■ •••••••• - I........ ■■■■■■ I-~·-···· .......... ■■■■■ ■~■ RESPONDENT •• I •• I (Appeal from the judgment Jf the High Cou:rt of Tanzania at Bukoba) 1 {LyiJo, J.) th I : dated the 6 day1of January, 2qo9 .IIn I Criminal Appea~ No. 49 of 200s I ..... •· r........ I JUDGMENT OF THE COURT ; 23 & 28 September, 2011 KIMARO, J.A.: I In the District Court of Bukoba, the appellants were jointly charged with I • I I two others who were acquitted, with three offences as follows; armed robbery contrary to sections 285 and 286 of thl Penal Code an6 two offences under the Arms and Ammunitions Act, No.2 of 19b1 of being in p~ssession of firearms and ; I' . I I I 'I } -,. ammunitions respectively, contrary to jections 4(1) an~ 34(1) and (2). In th,1 offence of armed robbery the appellant~ were alleged to[ have stolen at gun point an amount of T shillings 90,000/= froi Fredrick Pros~er @Kwazo PW1. ThJ I I gun alleged to have been used in tHe commission qt the offence of arme~ robbery was an SMG with serial Nb UA 0565199~ which had rounds ~ ammunition and it is the one which foJ.med the subje~ matter of the other twb I I offences of possession of firearms and ammunitions. Ih the trial court the 1 i, st , I 3'd and 4 th appellants were convicted a charged and sentenced to thirty yea+ imprisonment for the offence of armed: robbery and thi~ I years imprisonment Or I : I a fine of shillings 2,500,000/= for the other two offence~. I : I As for the second appellant he. was acquitted! of the offences he w.1s I .. , charged with but he was found guiltyand convicted . ot the offence of being an I I ' accessory after the fact to the offences the others were convicted with, for aiding 1 ' I I th the 4 appellant to escape from criminal liability, contrary to section 388 of t~e I ' I Penal Code. He was sentenced to a rne of T, shillin~s 2,500,000/= or serve a term of four years imprisonment in defrult. I L i I Aggrieved by the convictions anr the sentences) the appellants lodged n ,t appeal in the High Court. The High <Court upheld th~ conviction and sentence I : I for the offence of armed robbery out varied the sentence imposed on the : I I 2 L, 'I had so as to take them to his house for safe custody. He heard noises coming from his cattle shed. He went there to see what was wrong. While he was there with his torch on, he was ordered by bandits to switch it off and kneel down. He saw one of the bandits with a gun and he courageously struggled with him and managed to take the gun from him and started using the gun to beat anyone who approached him. Unfortunately for him, he did not know how to fire it, and as the bandits became aware of this fact, they went back to him with pangas. He ran to the banana trees shouting for help. His brother, Salvatory, PW2 came to his rescue with a panga and in the struggle with the bandits he managed to completely cut off the left palm of one of the bandits. The bandit shouted for help but none of the bandits went back to assist him. They all left leaving the gun and the chopped off left palm of the bandit at the scene of crime. Both PWl and PW2 were not able to identify any of the bandits. In the process of the struggle PWl lost hisT shillings 90,000/=. Later neighbours visited the scene of crime and assisted in reporting the incident to the police station. The items left at the scene of crime were also taken to the police station. At the police station the gun was found with six rounds of ammunition. The gun and magazine were admitted in court as exhibits Pl, the left palm of the b_andit exhibit P2 and the PF3 showing the extent of injuries suffered by PWl as exhibit P3. 4 At the time No. C 9725 D/Cpl Nyamweri PW3 visited the scene of crime, the complainant PW1 informed this witness that one of the bandits had his left palm chopped off. In making a follow up, he was informed that one bandit with a missing left palm was admitted at Kasulu hospital. This happened to be the 4th appellant, who allegedly admitted being involved in the robbery that took place in the residence of PW1. The 4th appellant was returned to Bukoba with a PF3 bearing the name of Mathayo Buchumi @ Charles Andrea. As the fourth appellant was interrogated on his involvement in the commission of the offence, he admitted being among the bandits who robbed PW1 and he also mentioned the 2nd appellant (Betson), David Lambert who was acquitted, Samwel Mwita @ Cleophace (1 st appellant) and Alfreid Raphael @ Kidole (3 rd appellant) as being among the bandits who were with him during the commission of the offence. He also said the group of the bandits were more but he could not mention the names of the others. Apart from making a cautioned statement before the police, both at Kasulu and Bukoba, the 1st appellant also made an extra judicial statement before the Justice of Peace at Bukoba, admitting the commission of the offence and explaining the role played by each of the bandits. At Bukoba Hospital where the 4th appellant was admitted, his photographs were taken showing that he had no left palm. These were admitted in court as exhibit P9. The firearm and . 5 ammunitions were also taken for examination by an expert in the Investigation Bureau and were admitted in evidence as exhibits P6 and P7 while the report which gave the details of the firearm and ammunitions was admitted as exhibit P8. PW3 took the cautioned statements of the 2nd, 1st, and 3rd appellants . During the hearing, the appellants repudiated the statements claiming that they were not made voluntarily. The 1st, 2nd and 3rd appellants also said that all cautioned statements were recorded by one witness PW3. Despite the objection, the extra judicial statement of the 4th appellant was admitted as exhibit Pl0 while the cautioned statement of the 1st appellant was admitted as exhibit Pl 1 and that of the 3rd appellant as exhibit P12. In their defence, apart from the 1st appellant who raised the defence of alibi that he was not in Bukoba when the offence was committed, the rest of the appellants denied the commission of the offence. In convicting the appellants, the trial magistrate said the cautioned statements made by 1st, 2nd, and 3rd appellants were not reliable evidence for their conviction because they did not comply with section 58 of the Criminal Procedure Act, [CAP 20 R, E. 2002]. The sole evidence the trial magistrate relied upon to convict the appellants was the extra judicial statement of the 4th 6 .; appellant which the trial magistrate said he believed it because he knew the hand writing of the Justice of Peace who recorded the statement. The learned judge on first appeal faulted the trial magistrate for not relying on the evidence of the cautioned statements of the 1st• 2nd and 3rd appellants. In discounting the evidence of the cautioned statements, the trial magistrate said as they were recorded in question and answer form, they could not be relied upon for the conviction of the appellants. Citing the case Ramadhani Salum Vs The Republic Criminal Appeal No. 5 of 2004, (unreported), the learned judge said a statement recorded in question and answer form as provided for under section 57 of CPA is as much admissible in evidence as that one made wholly uninterrupted under section 58 of the same Act. The learned judge on first appeal also made the variations in the conviction of the 2nd appellant as already indicated. During the hearing of the appeal, the appellants did not elaborate on their grounds of appeal. They felt comfortable to hear the response of the respondent /Republic before giving an elaboration of their grounds of appeal. On his part, the learned State Attorney who represented the respondent /Republic supported the appeal. Commenting on the combination of the charges of armed robbery under the Penal Code and possession of ammunitions under 7 the Arms and Ammunition Act, the appellants were charged with, the learned State Attorney said it was unlawful to combine the offences of possession of firearm and ammunition and the armed robbery. He said the offences of possession of firearm and ammunition were, during their commission, economic offences, in which the District Court of Bukoba did not have automatic jurisdiction to try them. He said the offences were scheduled offences under the Economic and Organised Crimes Control Act, [CAP 200 R.E.2002]. Citing the case of Rhobi Marwa Mgare & 2 Others V R Criminal Appeal No. 192 of 2005 ( unreported) to augment his submission, the learned State Attorney said the District Court would have jurisdiction to try the offences if the Director of Public Prosecutions had exercised his discretion under sections 26 (1) and 12(3) respectively, of the Act, and gave his consent, and at the same time issued a transfer certificate to have the charges tried by the District Court of Bukoba. Since the Director of Public Prosecutions issued none of the two documents, contended the learned State Attorney, the District Court of Bukoba, had no jurisdiction to try the offences. The trial of the offences by the District Court of Bukoba was therefore a nullity. On the offence of armed robbery, the learned State Attorney said since the appellants objected to the admission of the extra judicial statement and the cautioned statements, the trial magistrate had the duty of making an inquiry to 8 ascertain the voluntariness of the same. This he did not do and without giving any reasons he relied on the extra judicial statement as the sole evidence to base the conviction of the appellants. He said that occasioned failure of justice on the appellants. He supported his views by the case of Emmanuel Joseph@ Gigi Marwa Mwita V R Criminal Appeal No. 57 of 2002 (unreported). He prayed that the appeal be allowed. The learned State Attorney after supporting the appellants' appeal the appellants did not see any need for saying anything in reply, apart from reiterating the prayer the leaned State Attorney made, that their appeal should be allowed. On our part we think the case is straight forward and we need not take much of our time. The offences were committed 14th November, 2003. The cases of Peter Marwa Makansi V R Criminal Appeal No.327 of 2007 (unreported) and Rhobi Marwa Mgare V R Criminal Appeal No. 192 of 2005 are among the authorities of this Court in which the Court held that the offence of unlawful possession of firearms/ ammunition, is not a constituent part of the offence of robbery. It is a distinct offence, triable under the Economic and Organized Crimes Control Act. The offences were removed from the Economic and Organised Crimes Control Act only recently by Act No. 2 of 2010. I 9 Under the circumstances, it was wrong for the prosecution to combine the offences the District Court had no jurisdiction to try with the ones which the court had jurisdiction to try. The offences had to be charged as distinct offences in separate cases. It was wrong for the offences to be combined in one charge sheet and in the same case. In this respect we agree with the learned State Attorney that at the time the appellants were charged in the District Court of Bukoba, that court had no jurisdiction to try the offences, as neither the consent of the Director of Public Prosecution given under section 26(1) of the Economic and Organised Act, nor a transfer issued under section 12(3) of the same Act. See also the case of Peter Daimon Mwamakuge V R Criminal Appeal No.174 of 2009 (unreported). As such the trial was a nullity. It would appear to us that this aspect of the case was not brought to the attention of the learned judge on first appeal. This fact completely escaped his mind. On this ground we fault the learned judge on first appeal for upholding the conviction of the appellants on proceedings which were a nullity. We find this ground having merit and we allow it. The learned State Attorney hesitated to ask for re-trial claiming that there was no sufficient evidence for the prosecution of the appellants with the said offences. In this respect we allow the appeal, quash the convictions, set aside 10 • the sentence and order the immediate release of the appellants unless they are held for any other lawful cause. It is accordingly ordered. DATED at MWANZA this 26th day of September, 2011. E. M. K. RUTAKANGWA JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL r' (I 11