philipo mbogoro vs eusebius kassian 2013 tzhc 2190 29 july 2013

AT SONGEA (PC) CRIMINAL APPEAL NO. 06 OF 2013 (Originating From Criminal Appeal No. 16 of 2008 of the District Court of Songea and Songea Urban Primary Court Criminal Case No. 175 of 2008) PHILIPO MBOGORO...........................APPELLANT VERSUS EUSEBIUS KASSIAN........ RESPONDENT JUDGMENT 15th-29™ JULY 2013 KWARIKO, J. The appellant herein and another one Justus Komba then second accused person stood before the trial Primary Court at Songea Urban with the offence of Robbery with Violence c/s 285 and 286 of the Penal Code. It was alleged bythe prosecutionthat the two had on the 9th dayof February 2008 at about 23.00 hours at Lusonga village within Songea District in Ruvuma Region did unlawfully usq^violence to steal Tshs. 8,000/= and mobile phone make NOKIA valued at shs. 94,000/= from one Eusebius Kassian. The appellant and another denied the charge and the prosecution Drought three witnesses to prove the same. l The evidence by the prosecution reveal that when the complainant Eusebius Kassian, PW1 was returning from walk at about 23.00 hours on the material night he was invaded by two thugs who fell him down and robbed him Tshs. 8,000/= and mobile phone valued shs. 94,000/= from his rear trouser pocket. He raised an alarm where his neighbor one Stephano Mlimila, PW2 responded to the scene with a torch and upon seeing him the thugs took to their heels. Thus, with the aid of the torch PW2 identified the thugs to be the appellant and another and more so since he knew them before as his village mates. PW1 also said he identified the appellant and another since they were village mates and knew them before. PW3, Magnus Komba also was informed about this incident and the identity of the thugs. Since PW1 was injured during the robbery he was sent to hospital for treatment vide a PF3 that was admitted in evidence during the trial. The appellant and another were arrested and arraigned before the court as thus, where they denied the charge. In their defence the appellant and another just distanced themselves with what had been said and alleged against them. At the end of the trial the court found that the prosecution case had been sufficiently proved against the appellant and another. They were found guilty, convicted and the appellant was sentenced to one hundred and eighty months imprisonment while the 2nd accused who was under the age of eighteen years was sentenced to corporal punishment of ten (10) strokes of the cane. The appellant herein was aggrieved by the trial court's decision hence appealed against the same in the district court. The appellant's appeal before the district court was dismissed hence this appeal. However, it is worth to mention that the proceedings before the district court had two legal irregularities which I have discovered. Firstly, the record before the district court shows that the appellant filed an appeal against the Republic who was not party to the proceedings in the trial court. Thus, the original complainant was not called to participate in the appeal before the district court and thus he was not heard. The Republic who was made the respondent was not either called to participate in the appeal. Thus, the district court erred in law to receive and entertain the appeal against a stranger, i.e. the Republic since he was not party to the proceedings at the trial. The Republic could have only been made one of the parties to the appeal had he shown interest that he wanted to appear and be heard [See Section 34 (l)(b)of the Magistrates' Courts Act Cap. 11 R.E. 2002]. Secondly, I found that the district court erred in law to decide the appellant's appeal without hearing the parties. The record again shows that after the appellant's appeal was received the appellate Magistrate fixed it for judgment without calling the appellant or the respondent for hearing. The appellant did not indicate in his petition of appeal that he did not wish to appear during the hearing of the appeal thus he ought to have been summoned to appear and be heard. This was an error on the part of the first appellate court. Having found that the first appellate court committed legal irregularities the issue that this court has asked itself is whether the irregularities have occasioned injustice to the parties. It is my considered opinion that the irregularities have not occasioned any injustice. As for the respondent since he was the winner in the district court though he did not appear to argue the appeal he was not prejudiced in any way. He has appeared before this court and opposed the appeal which I believe it is the same thing he would have said had he been called before the district court. In respect of the appellant I have found that whether or not he appeared to expound his grounds of appeal the outcome of the same would not have changed since even before this court he added nothing and did not explain his grounds of appeal. He just adopted the same. Since failure to give opportunity to the parties to be heard could lead to nullification of proceedings; and if this court follows that route it means it is the appellant who will suffer most since he will continue languishing in prison while the appeal before the district court is being entertained afresh. It is for the foregoing reason that I find that no injustice has occasioned by the first appellate court not hearing the parties. Thus, these two omissions can be cured by Section 37 (2) of the Magistrates' Courts Act Cap; 11 R.E. 2002 which provides thus; "No decision or order of a primary court or district court under this part shall be reversed or altered on appeal or revision on account o f any error, omission or irregularity in the complaintor any process or charge, in the proceedings before or during the hearing, or in such decision or order or an account of the improper admission or rejection of any evidence; unless such error omission or irregularity or improper admission or rejection of evidence has in fact occasioned a failure orjustice" Therefore, in terms of the cited provision of the law this court has in its discretion corrected the irregularities before the first appellate court (See also the case of ALLY RAJABU & 4 OTHERS V R, Criminal Appeal No. 43 of 2012, Court of Appeal of Tanzania at Arusha (unreported)). Now in this appeal the appellant has raised four grounds of appeal as follows: 1. That, the evidence in relation to identification at night was not water tight 2. That, he was not found in possession of stolen property. 3. That, his defence o f alibi was not considered by the trial court. 4. That, the prosecution case was not proved beyond reasonable doubt During the hearing of the appeal the appellant did not add anything useful as he only adopted his grounds of appeal. On the other hand the respondent resisted this appeal and submitted that during the robbery he identified the appellant and 2nd accused since they were his neighbours and thus the trial court rightly convicted them. Consequent to the foregoing, this court is supposed to decide the issue whether this appeal has merit. I will deal with the grounds of appeal in their chronological order. As regards the 1st ground of appeal the appellant complains that there was no proof that the complainant was properly placed to identify the thugs at night. Whereas the respondent maintained that he identified the thugs to be the appellant and the 2nd accused since he knew them before. Since the conviction of the appellant solely based on the evidence of identification at the scene I have considered whether the conditions were favourable for proper visual identification at night. In the case of WAZIRI AMANI V R [1980] TLR 250 the Court of Appeal of Tanzania enunciated criterion to be considered for proper visual identification as follows: (i) The time the witness had the accused under observation. (ii) The distance at which the witness observed the accused. (Hi) The conditions in which such observation occurred, for instance whether it was day or night time, whether there was good or poor lighting at the scene. (iv) Whether the witness knew or had seen the accused before or not. When the foregoing considered and fitted in our present case it is found that only one criteria was explained by the complainant which is that he knew the appellant and 2nd accused before. Thus, the complainant did not say what was the source of light at the scene tohelp him see and identify the thugs since the incident occurred atnight at about 23.00 hours. He did not even hint if there was moonlight or some other kind of light to enable him identify his attackers. Even if the appellant and his colleague was known to the complainant before he could not have ruled out that they were his attackers without seeing and identifying them. This could only have been possible if he said there was any light to enable him see and identify the thugs at the scene of crime. It is my considered opinion that even if the attackers were complainants brothers or any close relatives, he could not have said he identified them without any source of light to that effect (See OMARI HASSAN KIPARA VR. Criminal Appeal No. 80 of 2012 Court of Appeal of Tanzania at Dodoma, (unreported)). The complainant also did not explain the time he had the thugs under observation. Thus, failure to prove conditions for proper identification the respondent cannot be heard to say that he properly identified the thugs to be the appellant or any other person. As for PW2 who said he came to the scene to answer the alarm he did not explain the distance between him and the thugs which could have helped him properly see and identify the thugs. He did not also explain the intensity of the torch light and as did PW1, he did not explain the appearance of the thugs. Generally, the conditions for proper identification was not met in this case. Thus the trial court ought to have considered the conditions for proper identification in order to eliminate possibilities of mistaken identity before it embarked to convict. The first appellate court also fell into the trap that since the complainant and PW2 said they knew the appellant and another before then it was enough evidence to convict. That was legally wrong as I have indicated herein (see also the case of NUNG'UNIKO GIDULE VR, Criminal Appeal No. 223 of 2008, Court of Appeal of Tanzania at Iringa, (unreported)). In this case the Court of Appeal said that; "The law on the evidence of visual identification is settled. This evidence is one of the weakest kind and should only be relied upon when all possibilities of mistaken identity are eliminated and the court is satisfied that the evidence before it is absolutely water tight" Therefore, going with the above quotation this court is satisfied that the trial court did not warn itself on the evidence of visual identification it had at its disposal before it proceeded to convict the appellant. This applies to the first appellate court which had the duty to analyse the evidence but did not do so before it rejected the appeal. Thus, it is evident that the identification of the appellant by PW1 and PW2 was not water tight in the circumstances and the two courts below erred in law and fact to rely on it. The first ground of appeal thus succeeds. In the second ground the appellant is complaining that the trial court erred in law and fact to convict him while he was not found in possession of stolen property. I think this ground of appeal is devoid of merit since there is no evidence which said that the appellant was found in possession of stolen property. The trial court also did not say the appellant was found in possession of any stolen property when it convicted him. I reject this ground of appeal. Further, the appellant is complaining in the third ground of appeal that the trial court erred in law when it convicted him without considering his defence of alibi. I think that this complaint is misplaced. This is so because the appellant did not raise the defence of alibi at any time during the trial as required under section 194 (4) of the Criminal Procedure Act Cap. 20 R.E. 2002. Not even during his defence did the appellant raise such defence. In his defence the appellant was very brief. He only said that he knew nothing of all that had been said. In Swahili he said; "Sijui lolote juu ya hayo aliyoeleza". Therefore, it is out of place when the appellant now complains that he had raised a defence of alibi that the trial court failed to consider. This ground of appeal thus fails. Before I wind up the appellant's grounds of appeal I would like to talk about one thing that the appellant did not mention in his grounds of appeal but it is legally worth discussing. During the trial the court received the complainant's PF3 as evidence though it was not given a name. It was the complainant who tendered that exhibit. This was contrary to the law since the same ought to have been tendered by its author after the law under section 240 (3) of the Criminal Procedure Act (supra) had been complied with. This law obliges a trial magistrate to inform an accused about his right to have the medical officer who authored any medical report to be availed in court for examination or cross-examination. And the medical officer is the proper person to explain and tender the medical report which is a PF3 in this case. Thus, the PF3 which was received in court contrary to the law is bad evidence and it is hereby expunged from the record. Lastly, this court agrees with the appellant's last ground of appeal that the prosecution case was not proved beyond reasonable doubt against him. Reasons for this holding have been shown in the preceding discussion. Therefore, this appeal is allowed, conviction quashed and sentence of one hundred and eighty months imprisonment is set aside. The order of compensation is also set aside. Consequently, it is hereby ordered that the appellant be released from prison with immediate effect unless his continued incarceration is related to other lawful cause. Order accordingly. JUDGE 29/ 7/2013 DELIVERED AT SONGEA 29/ 7/2013 Appellant: Present Respondent: Present C/C: Ms. Harriet. JUDGE 29/ 7/2013