20110504 TZHC Iringa

IN THE HIGH COURT OF TANZANIA _I AT IRINGA (DC) CRIMINAL-APPEAL NO. 28 OF 2010 ORIGINATING· FROM IRINGA D/COURT C.C. NO. 173/2009 EMILIO NGAILE ....................................................... APPELLANT VERSUS THE REPUBLIC ........................................................ RESPONDENT JUDGMENT MKUYE,J The appellant herein was before the District Court of Iringa at Iringa charged with the offence of armed robbery contrary to section 285 and 287 of the Penal Code. It was the prosecutions' case that on 16/4/2009 at about 14.00 hrs at Kitelewasi while one Nelson Mlula (PWS) was pasturing his father's (PWl) cows, there came a group of four robberers who invaded him with pangas. One among them threatened him with a panga and a sharp knife. PWS ran home, a distance of .(about five km away) for his safety. When he came back with his parents they found the robberers have gone and four heads of cattle were driven 1 away. PWS alleged to have identified the appellant and other robberers since they come closer to him and it was dLJring a day light. PWS's father, one Amon Mlula (PWl), testified to the effect that after receiving the information he raised alarm in distress whereby villagers turned up. They made a follow up by following the footsteps of cattle. They reached at Lundamatwe village where appellant resides. They saw a herd of cattle belonging to the appellant in which among them was one of his cows. Village leaders of Lundamatwe and Kitelewasi were called to witness. The matter was reported to Lugalo Police Station then the appellant was arraigned before the court. The appellant at the trial court denied that he robbed the herd of cattle. The trial court, however, convicted him and sentenced him to 30 years imprisonment. Aggrieved, he has appealed to this court while raising six grounds of appeal which after examining them the following emerge. One, the fact that he was arrested two days after the incident meant that PWS did not identify him properly. Two, no identification parade was conducted though PWS said he knew the appellant on the date of incident. Three, the trial magistrate erred in believing in evidence that appellant sought to apologize in the absence of documentary evidence. Four, the cow alleged to be found in the group of the appellants' herd of cattle was not properly identified. Five, that the alleged stolen cow was found where the appellants' child was grazing his cattle. 2 At the hearing of the appeal the appellant appeared in person while the respondent Republic was represented by Ms Kassana Maziku, learned state attorney who sought to support the appeal. The appeliant during the hearing of the appeal added nothing but preferred to hear first from the learned state attorney. Arguing in support of the appeal the learned state attorney while conceding to the appellant's ground stated that the appellants' late arrest raised doubt as to whether he was properly identified at the scene of crime or not. She also wondered why they had to trace the stolen herds of cattle by following the footsteps if the culprit was known and or properly identified. Her further argument was that PWS did not identify the appellant properly as he did not mention or describe him to PWl. She referred to this court the case of Bushiri Amiri V R (1992) TLR 65. The learned state attorney went further to argue with regard to identification parade that that need did not arise as PWS had told the court that he knew the appellant who stayed in a nearby village. The case of Hassan Kinenyera and Others V R (1992) TLR 106 was also cited in support. As regards to the recovered meat (Exh. P2) and the cattle (exh. P3) she argued the evidence of PW2 and PW3 in relation to the meat was doubtful as the said meat was not identified to be 3 from the stolen cattle. Also she submitted that the cow was not proved to belong to PW1 because no description was offered. As to the doctrine of recent possession she vehemently argued that it was not properly invoked against the appellant as the complainant (PW1) did not establish ownership of the cow by describing the identification marks. She cited the case of George Mingwe's case, and Ali Bakar and Another V R (1992) TLR 15 in support. The trial court in convicting the appellant, undoubtedly, based on the doctrine of recent possession in that one of the alleged stolen cow was found in the group of the appellants herds of cattle and he had failed to report about the intruding cow in his group of cattle. This fact led to the courts' inference that the appellant was the one who threatened PWS with a panga and knife and drove away the stolen cattle. Not only that but also his conviction was founded on the identification evidence by PWS who claimed to have identified the appellant because he knew him to stay in a neighbouring village and the incident took place in a broad day light and he mentioned him to PW1, his father. This evidence however, in my view is not watertight. It raises doubts as the learned state attorney correctly argued. One, if PWS had correctly identified and mentioned him to PW1, why then did it take more than two days to trace and arrest him 4 while he was in a neighbouring village? Also, if the appellant was properly identified why did PW1, PW2, PW3 and PW4 start tracing the stolen cattle by following the catties' footsteps instead of going straight to the appellants residents? I think, if the appellant was correctly identified, it was a matter of going straight to the appellants' village, report to the village authority and go straight to his residents without hestation. But surprisingly enough he was caught 2 days after the incident. Again, if I may follow up the identification evidence itself, I think it is wanting. Much as PWS claimed to have identified the appellant, he did not offer description of the appellant specifically so when he said he saw him during the day. In Bushiri Amiri's Case (Supra) it was stated: "The time witnesses ought to have given a detailed description of the appellant." · In this case this never happened. It was also in evidence that PWS was 16 years old when he was invaded by four robberer whom among them threatened him with a panga and sharp knife, the fact that led him to run away for his life. Yet he claimed to have identified the appellant as he come closer to him. He did not, however, explain the distance to which he observed him. Neither did he explain the time he had the accused under observation. (See Amani Waziri's case (supra). What is vividly depected is that the situation was 5 horrific, thus he had to the away. I think, generally, the conditions for identification were unfavorable. With regard to the appellants' complaint regarding identification parade I think the learned state attorney rightly explained that where the witness claims to have known the culprit before the incident, the need for identification parade is unnecessary. This position was clearly stated in Hassan Kinenyera's case (Supra). It was stated at page 106 that: " the identification parade is useless if the persons put on the parade to be identified are known to the person who is to make the identification." Since the PWS had in his evidence claimed to have known the appellant before, conducting identification parade would have been superfluous. Coming now to the identification of the me·at and stolen cattle, it is the appellants' argument that it was not properly identified and that even the alleged recovered cattle was found in the group of this cattle grazed by his child. Basically this argument was conceded by the learned state attorney in that the meat (Exh. P2) was not proved to be from among the PWl's stolen cattle. She referred this court to the case of George Mingwe's case (supra) where it was held: "Identification of stolen properly by colour alone is the weakest sort of evidence, and the accused 6 ought not to have been convicted on such evidence". In the instant case, in relation to meat, there was no evidence whatsoever that tried to prove that the same was from PWl 's cattle. There is no thread of evidence which tried to link the meat with the stolen cattle as no description of the cattle was given and none of the catties' remains like the skin, head etc. were recovered and/or tendered in court. Indeed the possibility that the meat was from somewhere also or different cattle from PWl's cattle cannot be overruled. But again the cow/cattle as shown in the still picture (Exh. P3), the manner it was recovered and come to be identified to belong to PWl is not satisfactory. PWl told the court that as they reached the place called Kibali, they found a group of cattle belonging to the appellant. In the group the cattle belonging to him was found. The herdsman flee away. They drove the group of cattle to the village office. Then the village leaders for Kitelewasi (PWl's village) and Lundamatwe (the appellants village) came to witnesses and then they reported to the Police Station. Both the appellant and the learned state attorney are up in arms and quite correctly in my considered view, that the said cattle was not properly identified. The learned state attorney argued that no description of identification marks was given before recovery. Indeed, my objective perusal in the court record has not revealed on how exactly the alleged recovered cattle was identified and for that matter how PWl's ownership was proved. I have seen no 7 description by PW1 of the alleged stolen cattle which was given by him before its recovery. There is no evidence of even identification by colour which is the weakest kind of identification of a stolen property. Yet the doctrine of recent possession as explained earlier on was relied upon in convicting the appellant. In order for the doctrine of recent possession to be invoked it is a condition precedent that the stolen properly must be property identified. There a chain of authorities on the application of the doctrine of recent possession. In George Mingwes case (supra) it was held: "the applicability of the doctrine of recent possession depends on the type of the property being identified." Again in Ally Bakari & Pili Bakari V R (1992) TLR 10 it was held: "as PW2 could not with certainly show that the sewing machine (Exh. P3) belonged to him the doctrine of recent possession could not be applied in this case." Clearly, the application of the doctrine of recent possession depends on the type of stolen property and establishment of the ownership. The type of stolen property would assist to ascertain as to whether such property could easily or within a short period 8 t' exchange hands or not. But it is very crucial to establish ownership. In the instant case the stolen property was a cow. It was recovered after two days. I think, this aspect does not raise eye brows as it was such a property which could not change hands quickly. However, the issue is whether it was well established to belong to PW1? As already explained earlier, the cattle (Exh. P3) was allegedly found in the appellant's group of cattle. The whole group was driven to the village office. Then the photograph of the lone cattle was taken. In evidence it is not indicated how PW1 come to identify it. PW1 never gave a description of his cow before recovery. No explanation of colour, size or other marks was given. It is not shown in the court record how PW1 proved the said cow to belong to him and not someone else. On the other hand, it seems the identification based on the photograph tendered in court as (Exh. P3). But even the photograph itself does not show that the cow was recovered in the appellant's group of cattle as it was snaped alone. In other words the photograph alone was not sufficient to establish ownership. With this said, I hasten to say, I agree with both the appellant and the learned state attorney that the doctrine of recent possession was not properly invoked as the prosecution failed to establish with certainly the ownership of the alleged stolen cattle by PW1. 9 As a result, I allow the appeal, quash the conviction and set aside the sentence imposed against him. I also order that he be released from custody forthwith unless held for other lawful reasons. Coram: Hon.R.K.Mkuye,J Appellant: Present For Respondent: Ms K. Maziku State Attorney for Republic C/C: Mr. Charles ~'\11-<:-.j --Q_. R.K.MKUYE JUDGE 4/5/2011 10