20111109 TZHC Dar es Salaam

I 1 ' . IN THE HIGH COURT OF TANZANIA (AT DAR ES SALAAM) CRIMINAL APPEAL NUMBER 142 of 2010 (Originating from District Court of Kibaha Criminal Case No. 180 of 2009-S.P. MWAISEJE-RM) SAID ABDALLAH NOMBO ..............................APPELLANT vs REPU BLIC .............................................................. RESPON DENT JUDGMENT Date of last Order: 07-11-2011 Date of Judgment: 09-11-2011 JUMA, J.: This is an appeal by SAID ABDALLAH NOMBO against the decision of the District Court of Kibaha in the original Criminal Case Number 180 of 2009 wherein the learned trial Resident Magistrate S.P. MWAISEJE-RM had found the Appellant guilty , .. of the offence of armed robbery contrary to sections 285 and 286 of the Penal Code and sentenced him to serve fifteen years th in prison. The particulars of the charge specified that on 11 day of July, 2009 at around 01:30 hours at Humwa Tandau area . in Kibaha the appellant stole TZS 38,000,000/= cash belonging to John Fasil Kavishe and immediately before stealing he 1 slashed Mr. Kavishe with a bush knife in order to obtain the money. Appellant preferred this appeal by lodging main petition and additional grounds of appeal. In summary, Appellant contends that he was denied the opportunity to defend and state his case thereby violating the right to be heard guaranteed by Article 13 (5) (a) of the Constitution. Appellant also contended that the offence of armed robbery under sections 285 and 286 of Penal Code was not proved beyond reasonable doubt. Another ground asserted that there was no evidence proving the act of stealing i.e. showing the Appellant had actually taken cash money totalling TZS 38,000,000/=. Appellant also included as his ground of appeal the fact that identification parade was not conducted at least to ascertain whether he was identified at the scene of the alleged crime. According to the Appellant, the learned trial magistrate erred in law by convicting the appellant on the basis of evidence of PWl, PW3 and PW4 who were witnesses of tender age. At the hearing of this appeal on 7th November 2011, the appellant appeared in person and basically relied on his grounds of appeal. 2 Appellant emphasized that the record of proceedings of the trial court do not reflect accurately what transpired on 22 nd September 2009. According to the Appellant it is not true that charge was read over, explained to him. That he was not asked to plead to that charge as suggested in the record of proceedings. Ms Veronica Matikila the learned State Attorney who represented the Respondent Republic wanted to set the records straight by noting that Appellant's plea was taken and he pleaded thereto as provided for by the law. The learned State Attorney referred this Court to pages of the record of proceedings where Appellant's plea was not only taken but a right to cross examine prosecution witnesses and calling his own witnesses was fully explained. From the submissions regarding the taking of plea, it is important to reflect back on what the law provides. The law on taking of pleas is provided for by sections 228 and 229 of the Criminal Procedure Act, Cap. 20 (CPA): 228.-(1) The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge. 3 229.-(1) If the accused person does not admit the truth of the charge, the prosecutor shall open the case against the accused person and shall call witnesses and adduce evidence in support of the charge The wording of section 228 (1) of the CPA are couched in mandatory terms with respect of taking of pleas. Court of Appeal of Tanzania in the case of THUWAV AKONAAV v REPUBLIC 1987 TLR 92 said as much: ...... It is mandatory for a plea to a new or altered charge to be taken from an accused person, as otherwise the trial becomes a nullity. We would refer to an old case which had dealt with this matter and which is still good law. The case is Cr. Appeal 220/56 Akbarali Damji v R. reported in 2 T.L.R. 137. The head note reads: The arraignment of an accused is not complete until he has pleaded. Where no plea is taken the trial is a nullity. The omission is not an irregularity which can be cured by section 346 of the Criminal Procedure Code. I took some few moments to revisit the record of proceedings to determine whether Appellant's plea was taken as required by the law. Upon my perusal of the records, the handwritten records of proceedings of the trial court show that on 22 July 2009 the charge was actually read over and 4 explained to the Appellant to which he pleaded "It is not true." The record further shows that an acronym "EPNG" was used implying that a plea of NOT GUILTY was entered. Again on 12 November 2009 record shows that the trial court conducted a preliminary hearing and the Appellant was first reminded the charge facing him; to which he pleaded the words "IT IS NOT TRUE." Once again, the court used the acronym "EPNG"- indicating a PLEA OF NOT GUILTY. It is obvious from the foregoing extracts of the hand-written record of trial proceedings that Appellant's plea was duly taken as law prescribes and he has no reason to complain as he did through his grounds of appeal. Responding to the suggestion that evidence of PWl, PW3 and PW4 was evidence of witnesses of tender age requiring a prior voire dire examination, Ms Matikila invited this Court to look at the ages of these witnesses when they took their witness stand. Record of proceedings; show that Salum John (PWl) was 15 years of age. John Fasil Kavishe (PW2) is described as an "Adult." Mary Kavishe (PW3) was 17 and Andrea John Kavishe is shown as an "Adult." According to the learned State Attorney, the above-mentioned PWl, PW2, PW3 and PW4 5 were not witnesses of tender age within the meaning provided for by section 127 of the Law of Evidence Act, 1967. From the submissions made on behalf of parties on the question of competence of witnesses to testify, the main issue for my deter_mination is whether PWl, PW2, PW3 and PW4 were witnesses of tender age. The answer is clearly provided for by the Law of Evidence Act, 1967 which provides- 127. -(lJ Every person shall be competent to testify unless the court considers that he LS incapable of understanding the questions put to him or of giving rational answers to those questions by reason of tender age, extreme old age, disease (whether of body or mind) or any other similar cause. (2) Where in any criminal cause or matter a child of tender age called as a witness does not, in the opinion of the court, understand the nature of an oath, his evidence may be received though not given upon oath or affirmation, if in the opinion of the court, which opinion shall be recorded in the proceedings, he is possessed of sufficient intelligence to justify the reception of his evidence, and understands the duty of speaking the truth. (3) ..... . (4) ..... . 6 , , l \. (5) For the purposes of subsections (2), (3) and (4), the expression "child of tender age" means a child (whose apparent age is not more than fourteen years. Upon my reading of subsection (5) of section 127 of the Law of Evidence Act, 1967 I cannot but agree with the learned State Attorney in her submission that PWl, PW2, PW3 and PW4 were not witnesses of te'nder age. They were all above fourteen years of age and did not require any voire dire examination by the trial court to determine their ability to understand the questions that were to be put to him or their ability to give rational answers to questions put out to them. The foregoing was so much the learned State Attorney opposed the grounds of appeal. Otherwise Ms Matikila did not support the conviction of the Appellant because the evidence, including that of PWl, PW2, PW3 and PW4 did not prove the guilt of the Appellant beyond reasonable doubt. According to the learned State Attorney, pages 6 and 8 of the record of proceedings show that both PWl (Salum John) and his father PW2 (John Fasil Kavishe) saw the Appellant for the first time earlier that day when he came looking for oranges to buy. And they later visually identified him at the scene of 7 v -U ·, -t' ~ crime because there was moonlight shining· that night. The learned State Attorney contended that this sort of visual identification is doubtful and insufficient to place the Appellant at the scene of alleged armed robbery. The learned State Attorney rightly pointed out that it is not clear how the moonlight could assist visual identification inside a house where the offence was committed. The evidence of PWl and PW2 in the opinion of the learned State Attorney did not go far enough as to describe the Appellant's physical appearance. Ms Matikila submitted that the Court of Appeal in the case of Raymond Francis V Republic 1994 TLR 100 (CA) had an occasion to deal with the issue of visual identification similar to the present appeal before me. The Court of Appeal emphasised the importance of ensuring that there is a correct identification in a criminal case that hinge on visual identification of an offender. The Court of Appeal restated the law that where; an offence is committed at night, courts are particularly enjoined to be satisfied that the conditions are favourable for a correct identification of the offender. With that assurance of correct identification lacking in the evidence of the trial court, Ms 8 Matikila concluded that the case against the Appellant was not proved beyond reasonable doubt. As correctly stated by the learned State Attorney; the criminal case that was levelled against the Appellant solely hinged on the visual identification of the appellant by the PWl and PW2. The presence of the Appellant at the scene of armed robbery that night needed to be proved• beyond reasonable doubt before even looking at the ingredients of the offence of armed robbery. The first issue which the learned trial magistrate drew for determination by the trial court was whether there was an armed robbery and who participated in that robbery. The learned trial magistrate dealt with the question of visual identification by relying on evidence of PWl and PW2 by stating that even before the crime was committed, the Appellant had been seen at the scene of crime pretending to buy oranges. With due respect, in view of the importance of visual identification to place the Appellant at the scene of armed robbery, learned trial magistrate should have given more attention to the issue of identification. It was not correct on the 9 V part of the trial magistrate to conclude from evidence that the Appellant was properly identified at the scene of crime without elaborating how he was actually identified. As correctly pointed out by Ms Matikila, the law governing evidence of visual identification is now well settled by the Court of Appeal of Tanzania. The conclusion reached by the trial court is not in line the settled position of law regarding the evidence of visual identification. In the case of Raymond Francis V Republic 1994 (supra) and also in the case of Said Chaly Scania v R, Criminal Appeal No. 69 of 2005, Court of Appeal of Tanzania is categorical that visual identification at night is by any standard an unfavourable circumstances requiring evidence which leaves no doubt that identification is correct and reliable. In Said Chaly Scania v R (supra), the Court of Appeal held: "We think that where a witness is testifying identifying another person in unfavorable circumstances like during the night, he must give clear evidence which leaves no doubt that the identification is correct and reliable. To do so, he will need to mention all the aids , to unmistaken identification like proximity to the person being identified, the source of light, its intensity, the length of time the person being identified was within view and also whether the person is familiar or a stranger. 10 In the present appeal before me, the learned trial magistrate did not take time to warn himself of potential dangers of relying on evidence that moonlight was sufficient to enable correct and credible identification of the Appellant by the witnesses. The learned magistrate did not evaluate the evidence on the factors which assisted with the identification of the Appellant at the scene of armed robbery. There is no evidence on the intensity of the moonlight, the length of time the Appellant was within the visual view of the witnesses. I hereby find and hold that the visual identification evidence leveled against the Appellant did not meet the re·quirements laid down by the Court of Appeal of Tanzania. For the above reasons, I hereby allow the appeal, consequent upon which the conviction is quashed and the sentence of 15 years imprisonment is set aside. The motorcycle with chassis Number LBRSP JB 52 89 37 721 SANLAG and the motorcycle card which the trial magistrate had ordered to be handed over to the complainant shall all be returned to Appellant herein. Otherwise. the appellant is accordingly set at liberty. 11 ~ I.H. Juma, JUDGE 09-11-2011 Delivered in presence of Appellant in person and Ms Veronica Matikila, State Attorney (for Respondent). -L I.H. Juma JUDGE 09-11-2011 12