20121128 TZCA Mbeya

I -~~ ·-r--'1 a.. .• . -..·!;._. IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: BWANA, J.A., MANDIA, J.A, And KAIJAGE, J.A.) CONS. CRIMINAL APPEAL NOs. 145 OF 2010 & 167 OF 2009 ~: :~~L~AM;~~~~: BO)·····················••·······························•······APPELLANTS 3. MOSES SOMBA 4. JANUARYJUAKALI , · VERSUS THE REPUBLIC ..........•.. ■■■ ••••••••••••••• I ••••••• ■■•■■■• I • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • RESPONDENT {Appeal from the decision of the Resident Magistrate's Court-with extended jurisdiction at Mbeya) (Awasi, PRM EXT.JURIS.} Dated the 6 th day of April, 2010 in Criminal Appeal Nos. 2, 5, 6 & 7 of 2008 ...••••••••............... JUDGMENT OF THE COURT 27th & 29 th November, 2012 . MANDIA, J.A.: JANUARY s/o JUAKALI, MSONDA s/o WITSON, MOSES s/o SOMBA and KAMILI s/o MWAULAMBO appeared in the District Court of CHUNYA at Chunya on a joint charge of Armed Robbery. The charge was laid under Section 285 and 286 of the Penal Code. After due trial, they were found guilty and convicted by the trial court which sentenced each of them to imprisonment for thirty years. They were aggrieved by both the conviction 1 ! ; .,, ....~/' .';; and sentence and preferred appeals to the High Court of Tanzania at Mbeya. They did not, however, prefer a joint appeal. KAMILI s/o MWAULAMBO, MSONDA s/o WITSON and MOSES s/o SOMBA preferred a joint appeal which was registered as Criminal Appeal No. 114 of 2007 while JANUARY s/o JUAKALI preferred a separate appeal, Criminal Appeal No. 109 of 2007. Both appeals were transferred to the Court of Resident Magistrate of Mbeya Region at Mbeya in separate transfer orders. Criminal Appeal No. 109 of 2007 was transferred to Mr. John H. K. Utamwa, Principal Resident Magistrate with Extended Jurisdiction and Criminal Appeal No. 114 of 2007 was transferred to Mr. S. J. Awasi, Principal Resident Magistrate with Extended Jurisdiction. Both appeals before the respective Principal Resident Magistrates were heard and each one dismissed in its entirety. In each of the respective appeals the appellants were aggrieved by the dismissal of their appeals, hence the separate appeals to this Court which we have just consolidated. In Criminal Appeal No. 145 of 2010 the three appellants filed three separate memoranda of appeal but the main point raised in the three memoranda is mistaken visual identification. Similarly, in Criminal Appeal 2 . I. No. 167 of 2009 the issue of note raised in the memorandum of appeal is mistaken visual identification. We will therefore discuss the memoranda and the issues raised therein together. When the consolidated appeal was called on for hearing the appellants appeared in person unrepresented. They had each nothing to add to the memoranda of appeal. The respondent Republic was represented by Ms. Catherine Gwaltu, learned State Attorney. Ms. Catherine Gwaltu, noted that the charges against the appellants were brought under ss. 285 and 286 of the Penal Code instead of s. 287A. She however submitted that this defect in the charge sheet did not prejudice the appellants, and is therefore curable under Section 388 of the Criminal Procedure Act, Chapter 20 R.E 2002 of the laws. We agree with the observation made by the learned State Attorney. We take note that Section 287A of the Penal Code created the offence of Armed Robbery and was added to the Penal Code by virtu_e of Written Laws (Miscellaneous Amendments) Act No. 2 of 2004. We however agree with the learned State Attorney that this defect has not occasioned any failure of justice since the appellants pleaded to the charge and _the trial was conducted following the 3 ,. law and procedure. The defect is therefore curable under section 388 of the Criminal Procedure Act, Chapter 20 R.E. 2002 of the laws. The evidence which led to the conviction and sentencing of the appellants showed that on 12/6/2007 between 11 a.m and 2 p.m. PW2 James s/o Budeba, a resident of Muheza Village in Chunya District was seated at Emmanuel Mahenge's grocery drinking beer. At 2 p.m January s/o Juakali, whom we will treat as the fourth appellant in the consolidated appeal, went over to where PW2 was seated and demanded beer from him. PW2 declined to offer beer to the fourth appellant. The fourth appellant then asked PW2 for a loan of shs. 200,000/= as seed capital for a business he was going to start. Again PWl turned down the request for a business loan from the fourth appellant. The fourth appellant then asked PW2 why he was denying him (fourth appellant) business capital after working for him (PWl) for two years. PWl replied that he was paying the fourth appellant his wages, implying that there was no obligation between the two. The fourth appellant then left the bar while telling PWl "we shall see." 4 ' i Events now moved to 9 p.m. on the late evening of 12/6/2007. PWl Mary d/o Singa, the wife of PW2 James s/o Budeba, was bathing her child inside her house. The room was illuminated by a pressure lamp. As PWl finished bathing the child she heard a gunshot and soon thereafter four persons entered her house. PWl identified the third accused in the trial court, who is the third appellant in this appeal, as the person who carried a firearm. She testified that other three appellants carried iron bars and clubs. PWl also testified that the appellants carried torches (flashlights) which were on inside the room, and insisted that the pressure lamp was still on. PWl went on to say that once inside the house the four intruders demanded money. She replied that she had no money and the four persons assaulted her. The four person then took her out of her house to a nearby house belonging to her co-wife where the husband PW2 James s/o Budeba was. There the four persons demanded money from PW1 James % Budeda while assaulting him. James Budeba gave the appellants sh. 780,000/= which he had hidden under a mattress. The four persons took the money and then went on to assault James Budeba in the ribs and on the head, causing him to bleed. PW2 James Budeba screamed, people came in and s ' I the robbers fled. As the robbers came both PW2 James Budeba and his wife, PW1 Mary Singa momentarily lost consciousness. The second wife PW3 Mindi d/o Lukelesha witnessed the assault on her husband PW2 James s/o Budeba and her co-wife PW1 Mary d/o Singa after the demand for money. She also testified that her husband gave the robbers money and the robbers fled after neighbours came. She identified the first accused in the trial court James Juakali as one of the robbers through a pressure lamp which lit her living room. PW4 Emmanuel Mahenge, the owner of the grocery where PW2 James Budeba was drinking beer, testified that on 12/6/2007 he saw the fourth appellant January s/o Juakali at his grocery. The fourth appellant demanded beer and a business loan of sh. 200,000/= from James Budeba. Both demands were rejected. In the evening he received information that PW2 James Budeba had been assaulted and robbed. Another neighbor PWS Luhende Ruzalia testified that he went to the house of PW2 James Budeba after hearing gunshots. There he found James Budeba and his wife unconscious. He found the pressure lamp on and took the wounded to 6 I ... hospital. On the following day those injured mentioned six people as robbers and they apprehended four of them. The four persons were taken to Galula Police Station on 15/6/2007 and handed over PW6 D6982 Corporal William. Corporal William testified that he visited the scene but did not find a spent cartridge though the complainants said a gun was fired. In their respective defences given under oath/affirmation each one of the four appellants denied any knowledge of the robbery and assault allegations. Each one of them testified that they were arrested on 14/6/2007 at times ranging from 1 p.m. in the afternoon to 9 p.m at night, taken to the local ward office where the allegations of robbery were first leveled against them. From there they were taken to the Police Station and subsequently to Court. The trial court found that the appellants were sufficiently identified through the pressure lamps in each of the two houses visited by the alleged robbers, adding that the appellants were neighbours well known to PW1 before. 7 Both learned Principal Resident Magistrates with Extended Jurisdiction who determined the respective appeals supported the finding of the trial court that there was sufficient lighting that scene to identify the appellants. Both therefore, dismissed the respective appeals. The appellants then preferred their respective appeals to this Court. Ms. Catherine Gwaltu, learned State Attorney, did not support the conviction and sentence by the trial court which were supported by the two first appellate courts. She argued that the identification at the scene was weak because the intensity of the illumination is not given. The learned State Attorney also argued that the victims lost consciousness momentarily, and when they regained consciousness they did not name their assaulters to the first person who joined them after the assault, PwS Luhende Ruzalia. The learned State Attorney also argued that the victims of the alleged robbery did not mention the alleged robbers to PW6 D6982 Corporal William before the date he received the report of robbery i.e. 15/6/2007. 8 After the argument by the learned State Attorney, each one of the appellants said they had nothing to add. As rightly pointed out by the learned State Attorney who argued the appeal on behalf of the respondent Republic, the core issue of this appeal is visual identification. In 1. EMMANUEL LUKA 2. JOSEPH FABIAN 3. HAKIZIMANA SEVERINE versus THE REPUBLIC, Criminal Appeal No. 325 of 2010, this court emphasized that in cases depending on visual identification, the guidelines laid down in WAZIRI AMANI vs.· R (1980) TLR 250, as further amplified in MATHEW STEPHEN @ LAURENCE v THE REPUBLIC, Criminal Appeal No. 16 of 2007 (unreported) should be applied objectively through the court bearing in mind the particular circumstances of each case in which the witnesses live or is subjected to as an ordinary person of his class. The question which begs the answer is. What objective situation exists in the case at hand? The answer is in the testimony of the victims of the alleged robbery, which shows that two houses were involved in the robbery, and each one of them was illuminated by a pressure lamp. The evidence on record also shows that none of the victims of the robbery gave evidence on the intensity of the 9 ' . l :f light coming from the pressure lamps' illuminating both houses. In HASHIM MWALIM & 7 OTHER versus THE REPUBLIC, Criminal Appeal No. 234 of 2006 (unreported): we emphasized the need for witnesses to spell out the type of lamps and the intensity of light each generated. None of the two courts below commented on the obvious need to show how much light each of the two pressure lamps in each of l the two houses generated. We have also noted that the victims of the I alleged robbery PW1 Mary Singa, Pw2i James Budeba and PW3 Mindi Lukelesha testified that the alleged robbers used torches (flashlights) which they used as illumination. Both the trial court and the respective appellate I I courts found this fact established. If this is so, we ask the same question ' which this Court asked in the Hashim Mwalimu case (supra), that is, why I were torches used if, as is claimed, the light from the pressure lamps was good enough to see? This aspect was ;not considered by the two courts below. Also, as we have held in MOHAMED MUSERO v. REPUBLIC (1993) TLR 290, torchlight is not effective in identifying the one who is flashing it. If the alleged robbers used flashlights to illuminate the room the focus of the torchlight would be on the 9bjects they want to be illuminated. j They would not go round shining the torch lights on themselves in order to I I 10 I ' t be seen by their victims! Again this is another factor which both courts below did not consider. Another fact which both courts below failed to consider is the evidence of PWS Luhende Ruzalia which partly goes thus:- "He told me he was invaded by thugs and robbed sh 780,000/- and was badly beaten. I found a pressure lamp still on after telling me what had happened to him he became unconscious and never talk. Also his second wife was badly injured and unable to talk. After that we took them to Namkukwe Dispensary for treatment. They remained at Dispensary for two days. On the L1d day they mentioned 6 people who participated to rob them and managed to arrest these 4 accused but the rest two escaped and absconded .... " The above extract of evidence shows that the victim PW2 James s/o s·udeba only mentioned to PWS Luhende Ruzalia that he was robbed, but 11 I ,o he did not mention those who robbed him. It was not until the second day, ' i presumably 13/6/2007, that the victim mentioned six people, four of whom are the appellants. Even then, it took until 14/6/2007 for the appellants to i be arrested by fellow villagers as they shqwed in their respective defences. If the first appellant is a fellow villager, and there is no evidence that he fled after the incident, why did it take up to 14/6/2007 for him and the rest I of the appellants to be apprehended? The trial court and the appellate courts did not also consider the defence ,evidence that the appellants were apprehended while in their respective homes on the same day 14/6/2007 between 1 p.m. and 9 p.m. in the same village where the victims live. ' What happened between 12/6/2007 and, 14/6/2007? This Court has held in MOHAMED SELEMAN MARWA vs. THE REPUBLIC, Criminal Appeal No. 26 of 2010, a decision which quoted with approval the earlier decision of WANGITI MARWA MWITA & OTHERS vs. THE REPUBLIC, Criminal Appeal No. 6 of 1995 (unreported) that failure to name a suspect at the earliest possible opportunity casts doubt on the credibility of a witness. This is a second appeal. As we said earlier, the appeal centres on the I issue of visual identification. In 1. GWANDU FAUSTINE 2. DANIEL 12 ' , '' WEMA vs THE REPUBLIC, Criminal Appeal No. 174 of 2005, we held that the issue on whether the appellants were properly identified is a matter of fact. We note that the two courts below made concurrent findings of fact that the appellants were properly identified. We are minded of the position in law that a second appellate court wiU only interfere with a concurrent finding of fact only where there are misdirections or non-directions, misapprehension of the evidence or violation of some principle of law which result in miscarriage of justice. A few of the decisions of this Court illustrate the point:- 1. PDD v JAFFARI MFAUME KAWAWA (1981) RLR 149 2. SALUM MHANDO v R (1993) TLR 170 3. ZAK.ARIA JOHN AND ANOTHER v R, Criminal Appeal No. 9 of 1998 4. PDD vs NORBERT MBUNDA, Criminal Appeal No. 108 of 2004. 5. AMRATLAL DAMODAR MALTASER t/a ZANZIBAR SILK STORES vs JARIWALA t/a ZANZIBAR HOTEL (1980) T.LR. 31. We have shown the failure of both courts below to appreciate the need to show the intensity of illuminating light, how they failed to 13 appreciate the purpose and focus of torchlight _where is other lighting claimed to be sufficient for illumination, and the failure of victims of an I alleged crime to name their alleged assailant at the earliest possible opportunity. Given these circumstances we are in agreement that the i findings of the lower courts cannot be justified in law, and the conviction and sentences cannot be allowed to stand. We therefore quash the I conviction entered against each one of the four appellants, and set aside the sentences imposed upon them as well as the orders for compensation. The appellants are to be released from Fustody forthwith unless they are 1 held on some other lawful cause. DATED at MBEYA this 28th day of November, 2012. 1 S. J. BWANA JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL S. S. KAIJAGE JUSTICE OF APPEAL (P. . "ampikya) SENIOR DEPUTY REGISTRAR COURT OF APPEAL 14 :i I