20110805 TZCA Dar es Salaam

,I-- 6? 0/! o-f>IJ """ ,.. • ~ .. ,.. .=1,_.1 ~v,: ~ c-F oe ; F,rn' /-Al-l'Ui 1" "'. " " ~ µ.r "~~ J-~~-- -.v--r- (. f ,,A I '6- :)...OJ IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: OTHMAN, C.J., RUTAKANGWA, J.A., And MANDIA, J.A.) CRIMINAL APPEAL NO. 51 OF 2010 1. MUSSA MUSTAPHA KUSA 2. BEATUS SHIRIMA@MANGI .............................................. APPELLANTS VERSUS THE REPUBLIC ............................................................... RESPONDENT {Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Mushi, J.) dated the 28th day of February, 2008 in HC. Criminal Appeal No. 102 of 2005 JUDGMENT OF THE/COURT / 13 July, & 18 August, 2011 RUTAKANGWA, J.A.: The two appellants, Musa Mustapha (1 st appellant)· and Beatus Shirima @ Mangi (2 nd appellant), were found guilty as charged on two counts, by the trial Court of Resident Magistrate at Kisutu. These offences were conspiracy to commit an offence (1 st count) and armed robbery (2 nd count). Without entering any conviction, as is mandatorily required by sections 235(1) and 312(2) of the Criminal Procedure Act, Cap 20 (the Act), the said court proceeded to sentence each of them to three years and 1 ...\ ~ ~i;;~. ! thirty years imprisonment respectively. They unsuccessfully appealed to the High Court against the guilty verdicts and sentences. Hence this. appeal. This being a second appeal, the appellants' right of appeal, in terms of section 6(7) (a) of the Appellate Jurisdiction Act, Cap 141 is restricted to only matters of law. In very rare circumstances would this Court interfere with concurrent findings of facts of the two courts below. It will do so when it is sufficiently demonstrated that the findings are, on the face of it, perverse or unreasonable for being based on a misapprehension of evidence, or where there had been a miscarriage of justice or violation of some principle of law or practice: See, for instance, AMRATLAL DAMODAR MALTASER t/a ZANZIBAR SILK STORES v A. H. JARIWALA t/a ZANZIBAR HOTEL (1980) T.L.R 31 and ATUFIGWEGE DANKEN MWANGOMALE V R. Criminal Appeal No. 168 of 2009 (unreported). The appellants' joint memorandum of appeal lists seven grounds of complaint against the conduct of their trial and the decisions of the two courts below. However, the pith of their complaints is that the verdicts of 2 guilty were predicated on contradictory and therefore unreliable visual identification evidence of the prosecution witnesses. They are also /. contending that the guilty verdict on the first count of conspiracy was erroneously· arrived at as no iota of evidence was proffered by the prosecution to prove this charge. Before us, the two appellants appeared in person and were unrepresented. On being reminded of their grounds of appeal, they opted to adopt them and had nothing to say either in addition or in elaboration thereto. On the other hand, the respondent Republic was represented by Ms Evetha Mushi, learned Senior State Attorney Attorney. While Ms Mushi did not support the decisions of the two courts below in respect of the 1st appellant, she was convinced, at first, that the charge against the 2nd appellant had been proved to the required standards. Before we discuss the merits or otherwise of this appeal, we shall first narrate, albeit briefly, the facts which led to the prosecution of the appellants. They are as follows:- 3 Halid Halifa (PWl) is a taxi driver. He is also the brother-in-law of the 1st appellant. On 23 rd December, 2003, he was driving a Toyota Corolla car with registration No. ZNZ 30629. At around 02.00 a.m. while at Msasani Bonde la Mpunga area in Dar es Salaam, in the company of Elizabeth Joseph (PW4) and Flora Mrope (PWS), a group of not less than three people, armed with a pistol, attacked them. They pulled him out of the car and disappeared with it and its other occupants, who were subsequently abandoned at Msasani Club area. PWl Halid reported the theft of the car at Oyster Bay Police Station. No. D 639 Det. Cpl. Mabula (PW2) was detailed to investigate this robbery. When PW2 D/Cpl. Mabula contacted PWl Halid on 26/12/2003, the latter told him that he had not identified any of the robbers of his car. However, sometimes later, PWl Halid told him that he suspected his brother in law, the 1st appellant. The 1st appellant was arrested on 11th January, 2004 at Mikocheni A, while the 2nd appellant was arrested at Kariakoo on the same day. Both, according to PW2 D/Cpl. Mabula, were arrested by Police Inspector Mabomba, who never testified. After the two appellants had allegedly confessed to the armed robbery to PW2 D/Cpl. Mabula, they were 4 ,,, charged accordingly together with three others who were acquitted by the trial court. Both appellants unequivocally denied committing the two offences. The 1st appellant, who identified himself as an auctioneer, told the trial court that he was indeed arrested at 11.00 a.m. on 11/01/2004 at Mikocheni area, while in the course of his business. He had taken there one Winnie Samweli, a co-accused who was acquitted, who was looking for a house to buy. The 2nd appellant did not defend himself as the trial proceeded in his absence under section 227 of the Act. In finding the two appellants guilty of the offence of conspiracy, the learned trial Resident Magistrate simply held that she "was convinced by the evidence of the prosecution that 1st accused and Z'd accused did conspired (sic) to commit the offence'~ No attempt was made by her to detail the said convincing prosecution evidence, beyond this bare assertion. Likewise, the learned first appellate judge did not even allude to the charge of conspiracy in his judgment. He only dealt with the issue of visual identification which to him adequately placed the two appellants at the 5 scene of the crime armed with a pistol, machetes and clubs. Thereafter he proceeded to confirm the "conviction"of the appellants "on both counts/~ On the charge of armed robbery, both courts below were satisfied by the evidence of recognition at the scene of the crime given by PWl Halid, PW4 Elizabeth, and PWS Flora. It was found by the two courts below that these witnesses's evidence was "correct and it ruled out any possibility of · mistaken identity. " As already alluded to above, the respondent Republic did not support the entire decisions of the two courts below based on the so-called watertight visual identification evidence. It was the contention of Ms Mushi that this evidence was very weak and could not sustain the "convictions"of the appellants. She contended that the incident took place at night under unfavorable conditions in which it could not be safely said and concluded that the three witnesses adequately identified the appellants. On this, she referred us to the evidence of PW4 Elizabeth who testified that it was a dark night although the scene was allegedly illuminated by electricity light from a third house from the spot where the offence was committed. She urged, us therefore, not to give serious 6 ;; consideration to this piece of evidence as neither the distance between the two points was given nor the intensity of that light disclosed. She, accordingly pressed us to allow the· 1st appellant's appeal in its entirety. However, she was of the view that the "convictions"of the 2nd appellant be sustained on the basis of his confession as contained in his cautioned statement (exhibit P2) recorded by PW2 D/Cpl. Mabula on 13th January, 2004. Admittedly, the case against the two appellants as far as the armed robbery charge was concerned, rested mainly on the evidence of PW1 Halid, PW4 Elizabeth and PWS Flora. These witnesses told the trial court that they had known the 1st appellant before the day of the robbery and had identified him among the robbers. As far as the second appellant is concerned, it was only PW1 Halid who elusively claimed to have seen him at the scene of the crime. Both PW4 Elizabeth and PWS Flora who were with PW1 Halid in the car and spent more time in the car with the second appellant than him, as already shown, testified never to have seen the 2nd appellant before the 28th June, 2004, when they testified in court. 7 We take it to be common knowledge that evidence of visual identification is of the weakest kind and no court should act on it unless all possibilities of mistaken identity are eliminated and that the evidence before it is absolutely watertight (WAZIRI AMANI v. R. [1980] T.L.R. 250). We also recognize as settled law that in a case depending for its determination essentially on identification be it of a single witness or more than one witness, that such evidence even if it be evidence of recognition, as is supposed to be the case here, must be watertight. Furthermore, the identifying witnesses must clearly state in their evidence conditions favouring a correct identification or recognition. Courts should always refrain from acting on bare and unsubstantiated assertions of witnesses [RAYMOND FRANCIS v. R [1991] T.L.R. 100, ISSA MGARA @ SHUKA v. R., Criminal Appeal No. 37 of 2005 and MENGI PAULO S. LUHANGA & ANOTHER v. R. Criminal Appeal No. 222 of 2006 (both unreported)]. Now, applying these salutary principles of law to the facts of this case, can it be held without demur that the two appellants were impeccably identified among the bandits who robbed PW1 Halid of his car? The two courts below provided an affirmative answer. 8 ,i In confirming the decision of the trial court, the learned first appellate judge said:- ''Having perused in detail and with careful consideration, both the evidence on record and the judgment of the learned trial magistrate, I am satisfied that the identification of the appellants by PW1 and PW4 and PWS, was correct.... in her judgment, the trial magistrate considered factors like- the amount of light at the scene of crime, the length of time the appellants were under observation of both PW4 and PWS,· the fact whether the witnesses (PW1, PW4 and PWS) knew the appellants before the robbery; and such other relevant ingredients of visual identification. All these ingredients are quite explicitly discussed in the trial magistrate judgment. " As already shown this is a second appeal. Both appellants and Respondent herein have pressed us to overturn the concurrent findings of facts by the two courts below. This is a jurisdiction we sparingly exercise. For this reason, we painstakingly studied the entire evidence on record and the judgment of the trial Resident Magistrate. We must first of all confess more in sorrow than in fe~r of dismaying anybody that we found the said judgment glaringly lacking in analysis. This conclusion is partly supported 9 by our earlier observations on how the charge of conspiracy was dealt with by the trial court. Secondly, we have failed to glean from the said judgment a single line or sentence in which the I.earned trial Resident Magistrate addressed herself to the said "relevant ingredients of visual identifications" in addition to the ones mentioned by the learned first appellate judge. What we have gathered from the said judgment is that after the trial magistrate had found the two appellants to have "conspired to commit the offence" {l st count), she proceeded to determine the 2nd count, as follows:- 1 'In the second count all accused are charged with armed robbery. According to the evidence of prosecution especial (sic) that of Ha/id Halifa the driver who was driving the stolen car; he identified pt accused whom he knew since his childhood. He also identified that second accused. He then identified them at the identification parade which was conducted at central police station. PWJ on answering questions put forward by 1st accused he stated that apart from seeing him since his childhood they are related to each other as his brother had married his sister. 10 PW4 Elizabeth Joseph and PWS Flora Mrope who were in the car with the bandits after the driver had been thrown in the ditch also identified 1st and Z1d ·accused. PW4 heard 1st accused saying that Ha/id was the driver of that car✓ it means therefore that 1st accused and Ha/id Halifa knew each other before occurrence of the incident. The two witnesses (PW4 and PWS) did not see ,fh and gh accused on the fateful day. Even the driver PW1 Halifa did not identified (sic) the two accused 4'1 and gh at the scene neither (sic) of crime nor in the identification parade. The defence of 1st accused that he was arrested without any good reason and that he had no 200,000/= to bribe the police officers was an after thought. I am convinced by the evidence adduced by the prosecution that 1st accused Musa· Mustapha Kisa and Z1d accused Beatus Shirima @Mangi did committed (sic) the Z1d count of armed Robbery. 4h accused James Bura George and gh accused Christopher Festa Mutayobya are not guilty in second count of Armed Robbery as there is no evidence at all to connect them in this charge. For 1st accused Musa and Z1d accused Beatus prosecution has proved the case beyond all reasonable doubt. They are· guilty in the second count of Armed Robbery. " 11 \ -. The above extract, firstly, does not, respectfully, bear out the learned first appellate Judge. Secondly, it exposes a clear misapprehension of the evidence. One, neither PW4 Elizabeth nor PWS Flora testified to have identified the 2nd appellant among the robbers. They both specifically said that they did not know him. Two, PWl Halid, while under examination in chief, told the trial court that he did not see the 2nd appellant clearly at the scene of the crime. To give weight to this assertion, he added:- " ...... that is why I did not mention him." Three, in view of this unsolicited piece of evidence, how could PWl Halid be believed in his claims that he identified him at the identification parade allegedly conducted at the Central Police Station? We have used the word "allegedly" deliberately because we have found no cogent evidence to show that such a parade was held. This is because no single police officer testified to that effect. Also, no identification Parade Register was tendered in evidence. We are therefore, of the considered view that the two courts below greatly misapprehended the nature and quality of the prosecution evidence. This fact alone, then, justifies our intervention. 12 " In view of the above findings, we are settled in our minds that the 2nd appellant was wrongly found guilty as charged on the basis of what the two courts below erroneously believed to be the correct and unmistaken visual identification evidence of PWl Halid, PW4 Elizabeth and PWS Flora. We have found no scintilla of such evidence on record. We would like to make it absolutely clear that although Ms Mushi has invited us to sustain the "convictions" of ·the 2nd appellant on the basis of his alleged confessional statement to PW2 D/Cpl Mabula, which was repudiated, the two courts below never considered it in their determination of this appellant's guilt. But the question remains. Did the 2nd appellant make this confessional statement and if he did, was it obtained legally? As we have already sufficiently demonstrated, this statement was allegedly recorded by PW2 D/Cpl. Mabula two days after the arrest of the 2nd appellant. The same was taken under the provisions of section 57 of the Act. ~We have had the privilege of perusing this alleged statement of the 1 nd 2 appellant (exh. P2). We have found out that it was recorded contrary to the mandatory provisions of sections 50 and 51 of the Act. 5.50 stipulates 13 • that the basic period available for interviewing a person who is in restraint in respect of an offence shall be four hours commencing from the time he was arrested in respect of that offence. However, this basic period may be extended under s. 51 by the officer incharge of investigating the offence for a period not exceeding eight hours or, on application, by a magistrate for a period he may deem reasonable. The evidence on record does not indicate in any way that there were such extensions before PW2 D/CPL. Mabula interviewed the 2nd appellant, if he indeed did so. If the learned trial magistrate was minded to strictly protect the appellant's procedural trial rights, she would not have admitted exh. P2 ·in evidence. before satisfying herself that it had been taken in full compliance with the mandatory requirements of the law. But that was not all. ><' Section 57(1) of the Act authorises a police officer who interviews a person for the purpose of ascertaining whether such person has committed an offence, to record the interview. Under sub-section (2) where such suspect makes a confession relating to an offence, the police officer shall make or cause to be made a record in writing setting out a number of factors which are enumerated therein. More significantly, it is provided in 14 mandatory terms in sub-section (3) that the said officer shall, unless the person is unable to read- "(a) show the record to the person and ask him - (i) to read the record and make any alteration or correction to it he wishes to make and add to it any further statement that he wishes to make; (ii) to sign the certificate set out at the end of the record; and (iii) if the record extends over more than one page/ to initial each page that is not signed by him; and (b) if the person refuses/ fails or appears to fail to comply with that request, certify on the record under his hand what he has done and in respect of what matters the person refuses, failed or appeared to fail to comply with the request'~ Subsection (4) covers situations where the interviewed person is unable to read the record or the interview or refuses to read or appears not to read the record when shown to him in accordance with subsection (3). Then, "the police officer shall- (a) read the record to him or cause the record to be read to him·, 15 (b) ask him whether he would like to correct the record or add anything to the record; (c) permit him to correct, alter or add to the record, or make any corrections/ alterations or additions to the record that he requests the police officer to make; (d) ask him to sign the certificate at the end of the record; and (e) certify under his hand, at the end of the record, what he has done in pursuance to this subsection. " We should quickly point out that these elaborate provisions were not superfluously added to the Act. They had a specific purpose. Having been enacted after the inclusion of the basic right of equality befqre the law, in our Constitution, they were purposely added as procedural guarantees to this right. For this reason, therefore, police officers recording such interviews or recording suspects' cautioned statements under both sections 57 and 58 of the Act, have an unavoidable statutory duty to comply fully with these provisions. They cannot, at the risk of rendering the statement invalid, pick and choose which requirement to comply with and which ones to disregard. The conditions stipulated in these two sections are cumulative and the duty imposed is mandatory. In view of the above observations, we have found exhibit P2 not to have satisfied the mandatory requirements of sub-sections (3) (a) (iii) and 16 (b) and (4) regardless of whether the 2nd appellant was literate or illiterate. In our considered opinion, therefore, we have found it very unsafe to rely on it to sustain the guilty verdicts entered against the 2nd appellant. This is all because there is no guarantee on whether or not it is indeed his statement. This fear is bolstered by the facts that the 2nd appellant repudiated it at his trial and the two courts failed to make a specific finding on whether it was made by hini at all and if it was, on whether or not it was voluntarily made. Ms Mushi, eventually conceded to these fatal omissions. For these reasons, we have found ourselves constrained to discount this confessional evidence in its totality as the Court did in the case of EMILIAN AIDAN FUNGO @ALEX and ANOTHER v. R, Criminal Appeal No. 278 of 2008 (unreported). The foregone discussion has led us to a conclusive finding that no single prosecution witness testified to have impeccably identified the 2nd appellant among the robbers. Furthermore, we have reached the inescapable conclusion that no ~ogent and admissible evidence was adduced by the prosecution to prove that the 2nd appellant confessed to PW2 D/Cpl. Mabula to have committed the said armed robbery. It goes without saying, therefore, that he was entitled to an acquittal had, in our 17 respectful view, the two courts below not misapprehended the nature of the prosecution evidence against him. The guilty verdicts, then, ought to be quashed. Coming to the second appellant, we have found ourselves in full agreement with the contentions of Ms. Mushi. Indeed, the visual identification evidence of the three prosecution witnesses was very implausible, weak and highly suspect. Given the undenied fact that this appellant was well known to these witnesses, one wonders why they failed to name him at the time of reporting the incident to the police. If PWl Halid had seen him among the three or six or seven robbers ( each witness gave his/her own number) why did he tell PW2 D/ Cpl Mabula that he had not identified any of the robbers? This Court has consistently held that the ability of a witness to name the offender at the earliest opportunity is a reassuring although not a decisive factor [JARIBU ABDALLA v. R. [2003] T.L.R. 271]. But the most discrediting factor is where a witness claims to have identified a person he/she knows very well at the scene of the crime and yet fails to name that person at the earliest opportunity. In MARWA W. MWITA and ANOTHER v. R, Criminal Appeal No. 6 of 1995 (unreported) this Court succinctly said:- 1s "... the ability of a witness to name a suspect at the earliest opportunity is an all important assurance of his reliability in the.. same way as unexplained delay or failure to do so should put a prudent court to inquiry. " The courts below, unfortunately, were not "put to inquiry~' by these witnesses' failure to name the 1st appellant either to the police or to any other person. In our considered view, it is hardly necessary to belabour the legal position on the issue. The Court has already conclusively ruled that unexplained delay or total omission to name a known suspect renders the witness's visual identification evidence highly suspect and unreliable. Such evidence should not be used to ground a conviction unless it is corroborated by independent credible evidence, which we have found wanting here (MT 38350 PTE LEDMAN MAREGESI v. R, Criminal Appeal No. 93 of 1988, HAROD SEKACHE @ SALEHE KOMBA v R., Criminal Appeal No. 13 of 2007, ISSA BAKARI & FOUR OTHERS v. R., Criminal Appeal No. 121 of 2008, JAMES KISABO @ MIRANGO & ANOTHER v. R., Crjminal Appeal No. 216 of 2006, SAMWEL THOMAS v. R., Criminal Appeal No. 23 of 2011, (all unreported, etc). 19 ,, ~- . ~ ,!'.,.,;.·•' ~ t .... In JAMES KISABO @ MIRANGO (supra), the Court lucidly said:- "Contrary to the findings of the two courts below, we do not find any credible evidence on record, to prove that PW1 had mentioned or described any of the appellants to the police or to her neighbours that volunteered to testify. The two courts below should therefore have been more cautious and not wholesomely accept PW1 s evidence as credible especially on the question of identification, because, even in the most favourable of conditions there is no guarantee against untruthful evidence or mistaken identity. It was prudent for the two courts below to have looked for corroboration, before proceeding to found a conviction. On our part we are not prepared to accept that in the circumstances, the evidence of visual identification of the appellants was watertight'~ We fully subscribe to this reasoning. When this sound reasoning is applied to the evidence of PW1 Halid, PW4 Elizabeth and PWS Flora, it leads to only one irresistible conclusion. This is that these witnesses were not truthful in their assertions that they had recognised the 1st appellant among the robbers. The evidence of PW2 D/Cpl Mabula on the issue referred to earlier strengthens this conclusion. 20 The conclusion that the three witnesses might have been lying is further bolstered by these self contradictions and inconsistencies in their evidence. One, while under examination in chief PW1 Halid categorically stated that the robbers were three in number and he only identified the 1st appellant as he was well known to him. Although he never stated what aided him to identify the 1st appellant, he belied himself within the same breath when he claimed that he also saw the 2nd appellant, who was a stranger to him. Two, although PW1 Halid claimed that the bandits were only three, PW4 Elizabeth asserted that they were six and PWS Flora swore to have seen seven bandits. Three, while PW1 testified that all the three bandits were putting on hats, PW4 said that only two of them including the 1st appellants were putting on hats. On her part, PWS told the trial court that the 1st appellant had covered his face with a hood or "socks" as she put it. Four, PWl claimed in his evidence that in his car his only passengers were PW4 and PWS. On this he was belied by PW4 who stated that there was another male passenger who was unknown to her. The litany of discrepancies is long. But these ones, which were never alluded to at all by the two courts below, will bear us out in our findings that these three witnesses may not have been truthful in their evidence. 21 J' .... Their evidence therefore, needed corroboration before being acted upon. Such corroborative evidence is patently missing. In fine, we have shown that the case against the 1st appellant was built on the visual identification evidence of PW1 Halid, PW4 Elizabeth and PWS Flora. Admittedly, the two courts below rested the findings of guilty on their credibility. In our judgment without, we hope, showing any disrespect to anyone, this finding was flawed by the fact that the prosecution evidence was not subjected to any objective scrutiny or evaluation before it was taken to be wholly truthful by the courts below. As we have attempted to demonstrate, this evidence of recognition was totally unsatisfactory, as it was weakened by open lies, inconsistencies and self-contradictions. Standing alone, it could not safely found a conviction. It is for these reasons that we have found ourselves enjoined to hold that the 1st appellant's appeal has merit and should be allowed in its totality as we hereby do. All in all, we accordingly quash and set aside the findings of guilty on both counts in respect of both appellants. We also quash and set aside the sentences of imprisonment imposed on them without being formally 22 convicted. As going by the evidence on record, the appellants were not guilty of any offence we shall refrain from remitting the record to the trial court for the academic exercise of entering convictions (MAIKO C~ARLES v. R., Criminal Appeal No. 20 of 2008 (unreported)). The appellants are to be released forthwith from prison unless they are otherwise lawfully held. DATED at DAR ES SALAAM this 5th day of August, 2011. M.C.OTHMAN CHIEF JUSTICE E. M. K. RUTAKANGWA JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL I certify that this is a true copy of the original E. Y. MKWIZU DEPUTY REGISTRAR COURT OF APPEAL 23