20130410 TZHC Dodoma

IN THE HIGH CO.RUT OF TANZANIA . AT DODOMA (DC) CRIMINAL APPEAL NO. 104 OF 2011 C/F 37 OF 2012. (APPELLATE JURISDICTION) ")- (Original Criminal Case No. 122 of 2010 of- Dodoma District Court at Dodoma) I • 1. MANENO MSAFIRI } 2. CATHBERT MNG'ONG'O ....... ~············: ~_PPELLANTS 3. AMOS MATHAYO , _ f .,). _ VERSUS THE REPUBLIC . .-..................................... RESPONDENT JUDGMENT .,.' 13/3/2013 ~ 10/4/2013 KWARIKO,J. The_ facts of this case which brought about this appeal reveal . .. . ·- that_ one A.ZIZI GEMBE' P.W l was a credit officer with a financial entity , .. · known as• BRAC which had its offices at ChamWino area within Dodoma Municipality during the material time o~ f3/3/2010. Whilst in there at about 8.00 am three armed thugs invaded the office and waylaid PW 1 and forced him to take them to th~ Manager's office after they robbed him Shs. 4,000/=. Before PW 1 wa:s forced to lead •! • to the Manager's office o·ne JOEL MSAMBILI PW3 ~- watchman was taken along. At the Manager's offi~e the thugs; ordered PW 1 to open table drawers and they ordered them to li~e~own while they - ;_ escaped and on the way robbed another officer MARY ELITUMAINI. The incident took ·about ten minutes. .',,' •fc· 1 ....PW 1 was· emphatic that during the robbeh? .he marked the description of Jhe thugs who had no masks andhtJbt the one who . i., t:.7~ .., had bald head carried a Machete, one had a ~nire and one who ,. had rasta hair carried a gun. The incident was ·reported to police ,\ ' and descriptions of the thugs were given and they were accordingly arrested various dates. On 3/ 4/20 l O PW 1 was called: to police where on an identification parade that was . conduqt~d by;C. lnsp·eElor . - t ~ CHAUSIKU MASASI, PW7 the appellants herein were.identified. PWl .; :1, said that the 1st appellant herein was the bal~ 'tleaded, the 2nd ~ : appellant oarried the knife and the 3rd appellant ··w_as the rastaman ,. who had trfe gun. ' ·>, After the arrest of the appellants by No. F. ?341 DC THOMAS,· PW2 among others, their interrogation was done':k:lrd they are said ,:J tt:.._. 1 to have admitted the allegations and their cautidn t~ :Matements were written. After all these formalities have been complet~,d the appellants and one ALLY., MOHAMED then 4th · accused w~rJ· taken to court ·:. ,, 2 ·, -J- ... - ... where jointly and together faced thr~e counts ,ol Armed Robbery c/s 285 and 287 A of the Penal Code Cap. 16 of the Laws R. E. 2002 as amended qy Act No. 4 of 2004. The appellants iherein and ALL y MOHAMED . denied the charge and during ,. the trr~I a sketch plan . map of the scene of crime, the 2nd appellant's ¢duHon statement, the 1st appellant's caution statement, the 3rd apr:9ellant's caution ' statE;z.ment, Identification parade Register and ·the 4th accused's .,; caution statement were admitted in court as exhibits P1,P2,P3,P4 .• and P5 respectively. ....... ,,.. ~~ -· t1 Before the close of the prosecution case the <appellant herein was recorded to have escaped from custody' 1~;ence the . case proceeded in his absence. During his defence the 2nd appellant said was arrested on 25/3/2010 together with his )::olleagues who were found playing cards. That his colleagues bribeg the police and were releas~d. He was beaten to confess and;was treated in :·(J. hospital on 29/3/2010. "l On his part the 3rd appellant said was arrested on27/3/2010 in -f: Dar es Salaam, was beaten and brought to_ Dodoma where on ) .. 29/3/2010 was taken to hospital for treatment. Thaf they were both broad cast on TBC Television on 01/4/2010 before identification parade was conducted on 03/4/2010 hence tt1EF same was not _, :,!'·.-:: legal. 3 .. In its judgment the trial court acquitted tben · 4th accused person. Whereas in convicting the appellants . . herei.r;i the court found , .,_•. that they were sufficiently identified by PW l who ;hd9 ... ample tim-e to .• m_ark their descriptions during the robbery and theJdentification at the parade which was legally and properly cond~cted. The trial court thus did not act on the appellants' confes.sion statements to , { I convict the appellants since there was other direct evidence hence · did ;o+ ·decide on the voluntariness of the sa&ie there being· ,:;' objections in resp$ct of the same. Therefore, the appellants were convicted 06 t~e 1st count an~ acquitted on the 2nd and 3rd counts since the complainants ther_ein MARY.ELITUMAINI and IDPHONCE MASUDI, victims ·otthe robbery did not turn up to testify. Hence the appellants were ~e'.rtenced to thirty •. ~ -A-~! (30) years imprisonment 'I with twelve ( 12) strokes oCthe -, ~:,ri cane each. That was on ,.16/5/2011. i '\ The 1st appellant· who was convicted dnc5 sentenced in absentia was cirrested and brought to the trial co&rt .. r·v on 13/7/2012. The l st appellant was given opportunity of bJirt~ heard on his reasons for absence and whether had probable at#fence on merits. The court found that the l st appellant presented no sufficient reasons for his absence hence was not heard on probable qefence on merit. He thus was ordered to serve his sentence f;rom the date of L .:~\~ ,.. apprehension. · , :~:i· ,,,. 4 The appellants were aggrieved by the trial ~ourt's. decision , .. hence filed this consolidated appeal whereas the 1st appellant has his grounds of appeal and the 2rld and 3rd appell9nts have separate grounds of appeal. Though, th~ grounds of cornplaints in the two memoranda of appeal are the same save. for only one ground in respect of the 1 st appellant. In both memoranda bf appeal about seven grounds of Appeal have been raised but orii\1 five gro~nds of complaints .... ' have been clear, they are as follows: d 1. That, the trial court erred in law and in fact to convict the appellants on insufficient evidence of idenJification. 2. That, the trial court erred in law and fa·ct.~,.,: to convict the \,_ appellants basing on the evidence of co-ac.'9:used. 3. That, the trial court erred in law and in f'acit to act on the complainants' uncorroborated evidence ... . . 4. Thqt, the trial court erred in law and in fact}o act on illegal caution caution statements. 5. That, the trial court erred in law and in fact to convict the 1st appellant in absentia without fol/owingi legal procedure hence denying him his constitutional r:ight of being heard . . \•,' ~ '··. When the appeal was called for hearing;/ the appellants } ·. ff adopted their grounds of appeal and wailed to hear the ~-i'1~~ respondent's stance. Mr. Sarara learned State Attorney appeared Ji. 5 on behalf of the respondent Republic ·and in his submission did not make the.appellants' life easy since he opposed tt,Jir appeal. ... t' . "',. Responding to the first ground of appeal Mr. Sarara submitted that the evidence in respect of the appellants' identification was . sufficient. He said that PWl had enough time to 1mark the thugs' appearance that is why he described them in detoll and was, not in .. ~i, d; .. fear since he even managed to describe the attire 9f the thugs and the incident took place in a day light about 8.00 ~aci1. And that the evidence of PW3 was not considered as complained ,,. by the ) appellants. ·. ..,i · As for the complaint that the appellants were b:roadcast on the : :::::.-; Television . before identification parade was conddcted ~ :' Mr. Sarara ; said the sar?)e had not been. proved by the appMJ1ants. That, the identificati6n parade was procedurally conduct~d: ., \ and according to PW7 there were four rastamen on the line as.iopposed . to a complaint that there was only one of them. Mr. $ar~ara referred this court to the cases of MWANGO MANAA (1936] 3 EAfA 29 which was . . ). quoted with approval in the case of S. MUSOKE V~ [l,958] EA 715 and • '-!;. .f K. MARANGE VR (1983] TLR Tss· in respect of the iSS:U@i of identification . -;- EH parade. That, the requirements for identification parade enunciated . 't, in the cited cases had been complied in the insta~t case. As for this first appellate court which has . d~ty to revisit the evidence at the trial, it has found that althougq, PW 1 said had ;.....i, --~·· i ;~· ~ ;,1 6 .,, ~ ... ,,, ·~ '. enough time to mark the, thugs whic~ led him 'to _:iJ~ntify them in an identification parade, his alleged identification -in~ the considered view of this court creates doubt. This is so-because PW 1 said he was in the said office together with PW3 and both had b~en hambushed and waylaid by the thugs. b_ut= PW3 said did not m~rk anybody and ,, .., was not called to the identification parade for tho} purpose. The trial '~ . ..1:\ ' court was not told that PW3 was less intelligent to r,park descriptions ,t; of Jhe, thugs in order to point out them later.·: And the alleged ,d IDPHONCE MASUDI who is said to have been in the company~pf ) :· PW 1 l and identified the thugs at the parade was not _cqlled to testify to :: ,,.{ · corroborate and _ give credence to PWl 's evidence.'!\ ..•-.!+ ' -:~~; .,,,, s ,i:· i,: ;)) Furth'~ir;;w~-is ~;uri-. has considered the oppEfl{onts:'\:eemplaint.... ·, that the appellants were broadcast on Televisid_h on 0 1/ 4/2010 before identification parade was conducted on 03( 4/2010. It is my considered~ opinion that this complaint rings a tru,'.thj in it since it has . . not been J::ontroverted by the prosecution. The,·. appellants first ... ,',., complained about this issue when PW 4 testi_pi~&:1 and no any substantial explanation was given by this witn~ss.: ~fart from denial that she did not display the appellants on the Telev(~ion for this case. . r This reply meant that the appellants were displ9yed on Television ~•u· and PW7 did not say it was for which case: The:1 court therefore , ;, ~. agrees with the appellants that in the absence of any other .. t; '.1.~'· evidence on the contrary they were broadca~t ~Jon Television in t•:,, ·,••T.. respect of this case. . If that is the case then there'vJas ~r possibility that the witnesses saw the appellants before the identificibtion parade. 7 · The court is fortified in it.s finding by the absence of PW7's ,; i· evidence to show what were the appellants' cb~ments after the . . .'.~i{ identification p0rade. PW4 ought to have npted what the . . . appellants said after the parade exercise was completed. This is one of the requirements of a valid identification parade as enumerated ·in the cited case of MWANGO MANAA VR [suprd]. In that case .... ' ·about thirteen ( 13) Instructions for Identification P0rade had been . \: ;_j " listed. The said requirement was said thus; 1 · S "At the termin~tion of the parade or dLfri'lflg the parade ask the ace used if he is satisfjeql that . the parade is being conducted in: 9 fair manner and make a note of his reply". 1 J. ·'"•c ·-~ •-..-:· Therefore, had PW7 complied with theid. .i~quirement the ' ~ fL appellants: would have said. something in· re~pe,c:ttJ of them being i ;~ ' broadcasfon the Television before that d9y. •i Also, the witnesses that stood in the line together with the ~- ,;~ appellants during the identification parade ougl').t .)to have testified ~ - ;;; 1 to give credence to the whole exercise to prove th ©t there were no ,. ,r\J any complaints from the appellants. This is so becczuse PW 4 did not say if she had informed the appellants of their right to have their Advocates, family members or friends present duVing the exercise {see MWANGO MANAA VR [supra]. 8 , ' t;~, Therefore, the identification parade was 06\t. conducted in accordance with legal procedure as the tri'al cepurt held and it follows that the identification of the appellants . · had not been proved. The first ground is thus resolved in the posifive. , :{ " . In the . second ground of appeal the court bgrees .with Mr. Sarara learned/State Attorney that the same i~ basel~ss because the trial court did not regard the evidence of co-d\ccused when it convicted · the d-ppellants. In fact the appellonts' confession . k statements though admitted in court but the sa0~ were not used dtJainst the appellants. This ground is thus rejecteq. < . -'.',•i;,\•;:,·:.:'.:.:_.t;"~.:.: . As for the third ground of complaint that th~r~ ought to have f~· . been corroborative evidence from independent yvifnesses the court is of the ct>pinion that it is not every case thaf 9n independent ~ i t:S' witness is wanting. In this case the complainants aid not say they had raised alarms during the robbery to attractJdftention of other people and thus there is no possibility that any qt~· er people apart 1 from the office members were aware of the incident. . :,.~ Since the ,:·,..-" .. matter was reported to the Police who came to testify, I am satisfied that, that was enough. This complaint is thus dismissed . ··-...:: . , 9 {{ '· The fourth ground of complaint relates to the appellants' \. ~~ caution statements. This· COL!rt agrees with the learned ·state Attorney that the confession statements were no1 :6sed against the appellants when the-trial court convicted them. Though, I agree with t_he appellants that the· court erred in law when it:( admitted these statements in evidence while they had been:· 9:bjected by the appellants. The trial court ought to have inquired the admissibility of -..~v these statements after the appellants had objected the same. This • • .~ -le was not done and it was illegal that they were recei,y ed in evidence. . r - :cj The app_~llants',c:aution statements were thus not ;good evidence t~! "tt and they are hereby scrapped from the evidence. This. ground of . ' . ·+,.· . complaint thus succ~eds in that extent as shown. :· ., I i. t Lastly, the 1st appellant complains that h'e:twas convicted without bein~ pfforded opportunity of being he,orfi. That, the trial court did nqt explain which provision was useqj ·in that respect . j . . . between sections 226 and 227 of the Criminal Proc~tJure Act Cap. 20 , >;); • R.E. 2002 [The Act]. Also, the trial court did not mak~ effort to secure his attendance be-fore he was convicted in abse~tia. ·, · Mr. Sarara learned State Attorney contended that the courf: did not err to i -:-~ convict the 1st appellant interms of section 226 ang . .,. 227 of the Act . ........ And since he had escaped form lawful custody:".... h'~ should not be ·.· heard to complain. Thi~ court is of the opinion that although the J[ial court did not rule out to indicate why it proceeded in ·the 9~:s.ence of the 1st appellant after he was reported had escaped fron') lawful custody, but I do not think. that the 1st appellant was ever prejudiced. This is so because it was on 24/2/2011 that the ·1 st· a'ppellant was reported . ' absent and the case was adjourned to 25/3/20 lJ when the last prosecution witness testified in his absen~e. It is my i::onsidered view 1~, :_:: /r that fhe court waited the 1st appellant for_ a sufficient time ta~ing into ~ . . ?:,~s ~ account that , there were co-accused languishing in remand Y;. custody and it could not be ascertained when the 1st appellant would have been arrested. Therefore, it is not true t~,at the trial court hurriedly convicted the 1st appellant in absentia. I, ~· ::.;· r '( :::: ..:J And whether the 1st appellant was given . op~_brtunity ·./'.,., of being j ,i heard in relation of his absence and if he had probgble defence on ' ; merit; The • trial court did find that the 1st ap~ellant had not ~ ;; -, ·•1 advanced sufficient reason for his absence hence did not afford him C • ~ opportunity to present his defence. The court noted that the said procedure was done interms of section 226(2) & {3)/of - the Act. That ..... was the legally required procedure and no ab>{) law had been .,_)_( contravened. Section 227 of the Act was not ?PP:lit:1able in this case as it relates to the accused who absents himself, after the close of prosecution case [See FWEDA MWANAJOMA 8; ANOTHER VR, .I_ • Criminal Appeal No. 174 of 2008, Court of Appeci_l of Tanzania at Dodoma [unreported]. I therefore reject this cornplaint for being ~. r./ baseless. 11 Consequently, I find that the prosecution casl at the trial was •J. not proved to the standard required in law. I therefore allow the I• :,, .:.· y appellants' appeal, ·quash the conviction and s.et aside the n sentence. The appellants are ordered to be released from custody unless otherwise lawfully-held. Order accordingly. ,j _ ;_··-- · , , ·- \ ... '.,, -,-..-~.,.- .. -_,_.::;::..:> (M. A. ARIKO) JUDGE 10/4/2013 Date :10/4/2013 Coram: Hon. M.A. KWARIKO, J 1st Appellant- Absent •• 2nd Appellarlt - Present 3rd Appellant- Present For Respondent- Mr. Wambali State Attorney .. C/C: Ms. Komba ... :., ,_· ··:·· :::·· :·:; ·: ~ ·.-··;_-.... .., Mr. Wambali : The matter is for judgment. We are ready and -the 1st Appellant is absent as he is reported to be in Morogoro where, he has another case. 12 Court: Judgment delivered in court in the presenc~··, gf ,.,.., the 2nd and 3rd Appellants and Mr. Wambali learned State /2:Horney for the Respondent, Republic. Ms. Komba court clerk present. JUDGE 10/4/2013 Court: Right of Appeal fully explained. Yt l 13