20120706 TZCA Tanga

IN THE COURT OF APPEAL OF TANZANIA I I ATTANGA I (CORAM: RUTAKANGWA, J.A., KIMARO, J.A., Andi MANDIA, J.A.) I CRIMINAL APPEAU NO. 336 OF 2009 , I I . ALLY OMARY NYANGE ...........................·........................... ~ .............. APPELLANT ' . VERSUS I .- THE· REPUBLIC ..............................................................................RES PON DENT (Appeal from the judgment of the High Court of Tanzania at Tanga) (Mussa, J.) I I dated 31 st July, 2009 1 in 1 Criminal Appeal ~o. 42 of 2004 ............. !........ . I JUDGMENT OF. THE COURT 4th & 9th July, 2012 MANDIA, J.A.: The Appellant ALLY OMARY NYANGE l was charged 'with Armed Robbery contrary to section 285 of the Penal code.I The district Cou'rt of Tanga at Tanga I which conducted the trial found him guil~, convicted him a_nd sentenced him to I thirty years imprisonment. In addition to the sentence of imprisonment the trial ' court ordered the appellant to pay Tshs. S:00,000/= and Tshs. 300,000/= to two respective victims of the robbery as con1pensation for injµries suffered. The appellant was aggrieved by the conviction iand sentence as well as the order for compensation so he preferred an appeal to the High Court of Tanzania at Tanga. I • His appeal was dismissed in its entirety and this made the 'appellant prefer the I present appeal. ' I During the trial in the court of first:. instance it was 1n ' evidence that on I 23/9/1999 at 2 p.m. in the afternoon, PWl 1ruth Urassa, a Lo~m Officer employed I 1 by Pride Africa Limited, walked out of her office carrying a grey coloured brief I case (Exhibit PE 1) in which she had, put cash totalling Tshs. 1,408,600/= ·• (Exhibit PE 3). Ruth Urassa was on he~ way to the National Microfinance Bank (NMB) Madaraka Branch where she wak going to bank Exhibit PE3 using two bank pay-in slips which she tendered inl court as Exhibit PE2. To travel to the Bank, Ruth Urassa had called for taxicad number 179 which was parked outside her office waiting for her. As soon as Jhe got inside the taxicab two persons, each armed with a pistol, surrounded th~m and ordered her out of the taxicab. 1 ' One stood on the driver's side and one\ alongside the passenger's seat. Ruth Urassa ran out of the taxicab into her office. Looking out of the window she saw I four persons who pulled the driver of tlie taxicab outside. She said three of l those persons were black in colour an~ one was "fair white." Ruth Urassa 1 identified the appellant in court when testifying as the "fair white" person she I saw on the date of the robbery, and testified that he was ~he person who drove away in the taxicab. Taxicab Number 179 has registration number TZB 8139 and its driver was PW7 Andrea s/o George. Narrating the eJents of the day, PW7 testified that he was waiting to take his regular custome~ Ruth Urassa PW.1 to the bank when three persons pounced on him. He struggled with the persons who threw him I out of his taxicab to prevent them from driving off. The driver who was white in colour with a small face, ordered his coll~agues to shoot him (PW7). He was shot in the neck and chest and lost conscidusness. He spent two days at Bombo Hospital, was transferred to KCMC whkre he spent three months under treatment. In court he identified the apJellant as the man who was white in colour with a small face and that he is the lone who drove away the taxicab and ordered his colleagues to shoot him. 2 A security guard at the Pride Tanzania Limited officer, PW3 Ferdinand Kailamba narrated how he saw a person\ armed with a pistol opening the door of the taxicab in which Ruth Urassa (PWl) was, and how he jumped on that man in an attempt to disarm him. He testified that, he struggled with the armed man for four minutes, and stopped the struggle when he was hit by bullets on the left I hand, shoulder and neck. PW3 Ferdinand Kailemba identified the appellant in court as the tall, thin white man he saw \on the date of the robbery and the one who drove off in the taxicab. At the scene of the crime, there was also present PW2 John Makanta, another Loans Officer for Pride Tanzania. He testified that he heard bullets being fired outside and on going out he saw a thin tall youth with white complexion struggling to pull out the taxicab driver from the taxi with the security guard Ferdinand Kailemba helping. He saw the security guard and the driver being shot and the taxicab driving off with the: robbers inside it. He telephoned the police. Half an hour later the police went to his office and told him the bandits had been arrested. He went to the offi~e of the Regional Police Commander where he was shown one of the robbers and the bag of money with the cash intact. The rest of the prosecution evider)ce involves policemen PW4 B 9990 Station Sergeant Lameck, PWS 7802 DetJctive Corporal Omari and PW6 ASP Mrio. Of these, only the evidence of DetJctive Corporal Omari and ASP Mrio is 1 relevant. The evidence of Station Sergea nt Lameck is next to worthless as it I - contains mostly hearsay. Corporal Omari PWS testified that he was at Street No. 5 in Tanga with other ·police officers whe~ they heard the sound of gunshots. They followed the direction of the gunshot~ and saw a taxicab with registration 3 ,I I ! Ii i 11 number TZB 8135 being driver at high ~peed. They gave chase but apparently I' : abandoned the chase after seeing that tpose in the taxica? were armed. Instead they sought help from the 999 police. i, The witness prod:eeded to give a lot of evidence not connected with the chargJ',, Finally he ende~I up saying:- 1 I' I II I! ''.5o we came back to Mabanda ya Papa; and one i' ; informer showed us at the house where the briefcase 1 , ! I with the money was kept am arrival we met one lady 1 1 I who told us that the brie~case was throwni there by these bandits and he kept tit there with herl At that [ ' time we took the brief oase and this aacused I to 1 ', I Chumbageni Police Station:· where this charge was i; ' instituted against the accused I person as he I stands charged." Further on, PWS is on record as saying:- 1 1 "That lady informed me thJt these bandits beat this 1 I briefcase on earth so that to bpen to get the money but I, ' 1 they failed. " \1 1 I' I On his part PW6 ASP Mrio, the pfficer in-charge I CID Tanga District, , I testified that on receiving information ?f the robbery tjver the radio from I I Corporal Omari (PWS) he rushed to Mabanda ya Papa wjth other policemen. There he found taxicab number 179 which had been invdlved in an accident. i' I ASP Mrio testified on how he shot the a;ppellant in the leg when he tried to escape, but he did not tell the court, the ci~cumstances leadihg to the appellant's I I arrest. He also testified that one informe'r told them the brief case containing I i I I 4 I the money was hidden inside the store of a house and he went there and recovered the brief case. On his part the appellant contended while defending himself that on 23/9/1999 he was at Mikanjuni area. He had just arrived from Dar es Salaam I and was looking for the house of his relative who resides at Msambweni area. ' As he made effort to trace his relative's house he saw fqur persons appearing from his left side running. A police vehicle came armmd chasing the four unnamed persons and firing at the four men. The app~llant alleged that he I feared for his life and ran to hide in a nearby house. One policeman came, beat him up and told him to show where his colleagues were. Hie told them he knew nothing of colleagues. He was joined to another group, of policeman which I included the QC CID Mrio. The police kept forcing him to confess to the robbery I which he denied, and at one point the QC CID shot him in t~e leg. He was taken to the Police Station and charged. The appellant, who is represented by Mr. Dominic Kashumbugu, learned advocate, lodged a memorandum of appeal containing three grounds which the learned advocate argued generally. The first ground cent~es on identification, I the second ground on improper tendering of a cautioned sta~ement and the third ground is a summary-that the lower courts failed to evaluate the evidence on record properly. While arguing the appeal, Mr. Dominic Ka'.shumbugu seems to I have abandoned the second and third grounds because he only I concentrated on the first ground on identification and then rested his case. 5 On the other side the respondent Republic was rep,resented by Mr. Victor Kahangwa, learned Principal State Attorney. The thread of argument by Mr. Dominic Kashumbugu is that the trial court I and the first appellate court erred in founding the convicti.on of the appellant on identification which was not positive. He argued that the ~vidence of PW1, PW2, i PW3, and PW7 is based on visual identification which has ,been held by case law I to be the weakest kind of evidence. He further argu~s that though it was I daytime, the circumstances of identification were weak. All the witnesses did not describe the attire of the appellant. Apart from saying the robber was a whitish thin man with a small face no further description was made on the identity of the robber. Mr. Dominic Kashumbugu also argued that the doubts on identification would have been cleared through an identification parade,, which was not held. I I There was therefore no corroborating evidence on the eviqence of identification given by the prosecution witnesses, Mr. Dominic Kashumbugu argues. I I I I On his part, Mr. Victor Kahangwa, learned Princ,ipal State Attorney, supported the conviction and sentence and ancillary orders made by the two I courts below. Mr. Kahangwa argues that the witnesses at t~e scene of the crime PW1 Ruth Urassa, PW2 John Makanta, PW3 Ferdinand Kailamba and PW7 I I Andrea George identified the appellant positively. He argl!eS that PW1 looked through the window after she ran away from the taxicab, pw2 saw a tall, thin I youth, PWS arrested the appellant at the scene and PW6 shot the appellant as he was trying to escape. It is the argument of Mr. Kahadgwa, that since the appellant was arrested after a chase soon after the incident there was no need I 1 for an identification parade, following Silandu Abdalla v. R, Criminal Appeal , No.122 of 2008 (unreported). He distinguished the principle on identification as 6 laid down by the case Waziri Amani v.: R, (1980) T.L.R. 250 on the ground that the Waziri Amani case (supra) is abdut identification at night, not during daytime as in the present case. As we pointed out earlier, Mr. Dqminic Kashumbugu argued only ground one of the memorandum of appeal and left ground two in abeyance. The second I ground is based on a cautioned statement which was discounted by the appellate High Court which may be the reason Why Mr. Dominic Kashumbugu did not • I argue it. All in all, we are left with ground one to grapple with. Mr. Dominic Kashumbugu argues that evidence of pd,sitive identification is wanting while Mr. I Victor Kahangwa argues that the evidence of PWl, PW2 PW3 and PW7 positively I identifies the appellant at the scene. Th~ trial court held at page 106, this:- \ 'The appellant was implicated by Ruth, Andrea, I Ferdinand and John, all of Vi(hom had visual memories ' of him being at the centre of-the day-time robbery. " I We are confronted with a situatidn that two courts below have made ' concurrent findings of fact that the robbe'ry took place during daytime, and that the visual identification of witnesses to the daytime robbery left no room for I doubt. It is a settled principle of law that where courts below make concurrent I findings of fact a second appellate court should not interfere with the concurrent I findings as made by courts below - see The Director of Public Prosecutions J vs Jafari Mfaume Kawawa (1981) TLR 149. Where however the findings of I the courts below are based on misapprehension of the evidence leading to wrong i conclusions of fact and therefore to misqarriage of justice, a second appellate I court is entitled to interfere, take the pos!tion of the trial court and assess the I evidence so as to arrive as a proper finding - see the Jafari Mfaume case ·1 (supra) and also Auzebia Nyenzi v. R~public, Criminal Appeal No. 336 of I 2008 see also Salim Mhanda v.R. (1993) !TLR 170. 7 We have said earlier that the case for the prosecution is based on the visual identification of the appellant. The record shows that PWl saw two bandits when sat inside the taxicab ready to go to the bank. When guns were I pointed at her and she ran back to her bffice, she saw four bandits through the I window. According to PWl, three of th~ bandits were black, and one was "fair l white" and is the appellant. On dress, ·pw1 said "they were dressed in normal men dressing. " On his part PW2 saw a "tall thin youth with white complexion. '' PW3 saw a "tall thin white man. " All tHe witnesses who saw the white man at the scene agree that the man escaped \n the taxicab. All of them admit that I there was no identification parade held to identify the person described as tall, ! thin and white. All the prosecution witnesses are in agreement that the alleged I I robbers got away with the briefcase containing the money which was supposed 1 to be banked that day. PWl and PW2 agreed that the briefcase containing the \ money was recovered by the police with the I money intact and they identified the briefcase at the office of the Regional Polite Commander. Two witnesses, both police officers testified on the recovery of the I briefcase. These are PWS Det. Cpl. Omari and PW6 ASP Mrio. Detective Corporal Omari testified that an old lady\ at Mabanda ya papa gave them the I briefcase which was allegedly thrown at her by the fleeing bandits. This old lady is not named, and was not called as a wit~ess. More so the unidentified old lady I did not link the appellant with the briefcase. On his part ASP Mrio PW6 testified that the briefcase was recovered from thJ store of a house which was pointed I out by an informer. No attempt has beeh made to link the appellant with the I recovery of the briefcase. Both courts below did not consider this point of recovery of the briefcase. They also did lnot consider the fact that the police 8 • officers who testified were not in hot pursuit of the appellant. They arrived at I the scene only to find an abandoned briefcase in a house whose owners they I 1 have shielded from the court process • The two courts below did not also I consider the appellant's defence that he I was caught in the crossfire between armed bandits and the police, and that he had just arrived in Tanga from Dar es \ Salaam. Given the circumstances of this case where there are unnamed actors, who the police did not disclose, whci are linked with the recovery of the I briefcase, the appellant's story remained\to be disproved. Failure to consider the non-disclosure of those involved in kee;ping the briefcase and then handing it anonymously to the Police, and failurJ to give a specific description of the \ appellant apart from the wi~nesses seeing a "white thin man," and failure to hold I an identification parade all are factors against positive identification of the l appellant. The circumstances of the arrest of the appellant do not show that the I police were in active pursuit and never lost sight of the appellant. l The circumstances also show that the subject matter of the crime, the briefcase, was recovered through perso~ or persons whose identity the police have hidden. In these circumstances it ~as a misdirection for the lower courts I to hold that the identity of the appellant was proven beyond doubt. I This I misdirection has led to a situation of possible miscarriage of justice. We feel we are entitled to intervene in such a situati~n. The conviction entered cannot be 1 allowed to stand. We therefore quash the conviction, set aside the sentence and 1 I I the orders for compensation. The appell,ant should be released from custody unless he is held on some other lawful cau~e. 9 \ DATED at TANGA this 6th day of:July, 2012. E.M.K. RUTAKANGWA JUSTICE OF APPEAL N.P. KIMARO 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 I I 10 i