20140410 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA AT TABOKA (CORAM: MSOFFE. J.A.. KIMARO, J.A., And MJASIRI. J.A.^ CRIMINAL APPEAL Nos. 211 & 212 OF 2013 1. GIMBU MASELE 1 2. LUCAS MICHAEL J..................................................APPELLANTS VERSUS THE REPUBLIC ....................................... .................. RESPONDENT (Appeal from decision of the High Court of Tanzania at Tabora) (Sonqoro, J.^ dated 20th day of February, 2013 in Criminal Appeal No. 192 cf 203 of 2009 JUDGMENT OF THE COURT 10th & 11th March 2014 MSOFFE, J.A. PW2 Hollo Jata and PW l Machembe Mbuga are mother and son, respectively. At the material time they lived in different houses, about 20 paces away from each other, but within the same compound. In the night of 1/8/2005 at about 23.00 hours they were invaded by armed bandits, including the appellant?. The, bandits entered the house of PW l first before going to PW2. The bandits demanded money from PW1. He told them that his money was with PW2. So he walked out with them to the house of PW2 where the latter gave them a sum of shs. 600,000/= belonging to PW1. PW1 told the trial District Court of Maswa that the appellants were familiar to him prior to the date of incident and that he indentified them in his house with torchlight beamed from torches that the appellants possessed at the time, and at PWl's house where there was a wick lamp. PW2 tot> testified that she was familiar with the appellants before the date of incident and that she identified them with the aid of the wick lamp. The incident was reported to the village authorities and eventually to the police. According to PW3 Bubinza Sitta, the Hamlet Chairman, PW1 named the appellants to the assembled villagers who had gathered in response to an alarm(mwano) raised by the complainants. PW2 named the second appellant. At the police PW4 E 2544 D/C Emma took up the conduct of investigating the matter. In his testimony in court he said that PW1 and PW2 named the appellants to him as having participated in the crime in issue. It was essentially on the basis of the above prosecution evidence that the appellants were convicted of armed robbery and each sentenced to a term of imprisonment for thirty years^ Their, first appeal to the High Court was dismissed. Still aggrieved, they have preferred this second appeal. The appellants' memoranda of appeal have one complaint in common. That the evidence of identification in the case was not enough to warrant the conviction in issue. Admittedly, as correctly submitted by Mr.-Juma Masanja, learned State Attorney appearing on behalf of the respondent Republic, the prosecution case was to stand or fall on the crucial evidence of identification. On this, we are in agreement with Mr. Masanja that the prosecution evidence on this aspect justified the convicticpn in question. In this case, the torchlight and the wick lamp were probably not the best mode of identification on the fateful night but these were not the only evidence in the case. There was no dispute that PW1 and PW2 were familiar with the appellants. They knew them prior to the date of incident. They were fellow villagers. The incident took a fairly long period of time that is from the time the appellants went to the house of PW1 and then to PW2, up to the tiTne they left the scene. Going by the evidence on record, the sequence of events in this regard shows that there was enough time tbr PW1 and PW2 to identify the appellants properly. As if that was not enough, there was evidence by PW1 that as they left his house on their way £o PW2 •v- there was bright moonlight illuminating the area thereby allowing for correct identification of the appellants. Yet again, a correct appreciation of the evidence as a whoie will show that as they walked from PW l's house to PW2, and once they were inside the house of the latter, the witnesses stood at close range to the appellants. In fact, the evidence of PVV2 that she gave the money to the second appellant was another clear testimony to the fact that they stood at close range; otherwise that could not have happened if they had stood at a long distance apart. So, the evidence of identification on record taken as a whole shows that the appellants were duly identified by the prosecution witnesses. Admittedly, the often-cited case of Waziri Amani v. Republic [1980] TLR 250 is a landmark decision on visual identification but the factors mentioned in that case are not meant to be exhaustive in determining credible identification. Therefore, in the instant case further to the evidence of visual identification there were other factors that allowed for correct identification. There is another significant aspect of the case wgrth mentioning here. This is borne out by the evidence.of PW1 and.PW2-that they named the appellants to PW3 and PW4, respectively, at the earliest possible opportunity. PW3 and PW4 confirmed this aspect of the evidence by PW1 and PW2. As this Court observed in Marwa Wangiti Mwita and Another v. Republic [2002] TLR 39 at page 43, this was an all-important assurance of their reliability. The appeal has no merit. We hereby dismiss it. DATED at TABORA this 10tn day of March 2014. J. H. MSOFFE JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy of the original. O V . BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL.