omari shaban nassoro vs republic 2014 tzhc 2078 2 may 2014

IN THE HIGH COURT OF TANZANIA AT TANGA CRIMINAL APPEAL NO. 18 OF 2012 [Originating from Tanga District Court Criminal C a s e No. 11 I of 2008] OMARI SHABANI NASSORO............................................................ APPELLANT t . VERSUS " THE REPUBLIC.................. •••„•."•.................................... ; ................. RESPONDENT 4 JUDGMENT U. MSUYA, J. The appellant Omari Shabani Nassoro and three others namely Bakari Iddi M b w ana/t Athman Abdi @ white and ally Said @ Tyson who were acquitted, was found guilty and convicted for the offence of Armed Robbery contrary to section 287 A of the Penal Code C a p . 16 of the Laws as am ended by Act No. 4 of 2004. He was sentenced . to a term of 30 years imprisonment, li was a well ordered, that Tshs. 3,265,000/= which according to the evidence of PW4 they seized, i from the Appellant together with phone m ake NOKIA Model be returned to the ow ner‘PW1 Rashid Charles M ochiwa. Dissatisfied with the decision the appellant preferred an ap p eal. The memorandum of appeal is comprising of nine grounds which can be condensed into the following grounds:- 1. That the appellant'w as not properly identified at the 'scene *of ft * t HU , Crime and the identification parade. y \ - i c-. 2. That the e v id e n c e d PW4 regarding the cash m oney and the mobile phone was not sufficient to prove that the appellant * committed the offence. 3. That certificate o'f seizure was not tendered in court as exhibit. 4. That the prosecution failed to bring the witness from the shop where the appellant alleged to have brought the phone. In the hearing of the A ppeal the-appellant ap p eared in person while the Ms Msilangi Learned State Attorney represented the Respondent Republic. In the course of the hearing the appellant asked the court to adopt his memorandum of ap p eal and written submissions. • ■*' * ♦ , In response, the Learned State Attorney supported the a p p e a l^ for the following reasons:- 2 One that there was contradiction between the testimony ot. PW4 E. 2751 Dcpl Abernego and PW5 Amini on the dates they went to Kigangala guest house where they arrested the appellant. While PW4 said they wet there on 23/8/2007 after he w as assigned a ca se file to investigate, PW5 testified that the police officers went to the guest house on the 21/8/2007. The other contradiction was jn the testimony of PWJVPW4 'and PW5 on the evid ence relating tp the phone tendered'in court as exhibit regarding its idqntifjcgtion mark inserted on the battery of the phone. PW1, the victim testified that the phone was marked by his technician by a word. "YAMKfWA” PW4 stated that the phone they seized from the accu sed was written on the battery “ R.C MOSHIWa" and PW5 testified that the phone was written “MOKIWA” so she argued that these contradiction apparent. In the testimonies witnesses w eakened the prosecution case. The other discrepancy she raised was on identification parade. That according to the testimony of PW6 Asp. Fusi he supervised the identification p arad e and that the PW1, PW2 and PW3 identified the appellant and other accu se d persons who were acquitted but PW1 the victim, PW2 and PW3 did not mention anywhere in their testimony that they identified the appellant in the identification p arad e. - - So she said that the evidence of PW5 about the co n d u c t'p fy » * *<'•" identification p arad e and the issue of the witnesses ‘identifying the 3 accused persons acquitted and the appellant in the parade is incredible. * The other reason for not supporting the conviction is that PW1 who was the principle witness was not cross exam ined. Emphasizing on the im portance of cross - examination she referred the court the case of MAIKO CHARLES V. R. Criminal Appeal No. 20 of 2008 (CA 4 » unreported), where it,was said:- l'’ ■ s; 4 ~ * t *. 'We understand that cross-examination in a n y trial. Is v K ’ J * the only crucible through which truth c a n b e extracted from a witness i So she prayed the court to allow the ap p eal as the appellant was not given a right to cross-examination PW1. As regards of whether the error is curable or not she said it is not curable under section 388 of the Criminal Procedure A ct C a p . 20. Before considering the submissions of the Appellant and the Respondent, I think it is im portant, to see the reasons for the conviction. In convicting the appellant the trial magistrate said that as regards the stolen money Tshs. 3,610,000/= and the cellular make NOKIA phone which was seized when PW4 searched the appellant at Kw ahangala guest house the evidence of PWV, PW2, PW3, P^W^ and PW5 did tally and it was direct.' He said. “ Nowhere, the a c c u s e d d en ied to own that ca sh m o n e y which was 3,265,000/ rather that to admit it. But what about that ' mobile ph o ne NOKIA, M o d e l 6300 V * which h ad n a m e of the complaint behin d its battery? This shows that, the 1st a c c u s e d was a m o n g the person who in v a d ed PW1 a n d stole s o m e m o n e y and his i mobile p h o n e m a k e NOKIA M o d e l 6300" 4 I 1 Therefore from thd ab o ve the 'Appellant was convicte.d' b ecause of the NOKIA phone. The issue now is whether" the evidence of the prosecution proved the ca se against the accu se d beyond all reasonable doubt. Besides the fact that the appellant was not adequately identified at the scene of crime, the fact that there was discrepancies in the testimony of the witnesses as correctly observed by the Learned State Attorney,- there is a very crucial issue which is raised by the Learned State Attorney. The issue is relating to the failure of the Appellant to be given an opportunity to cross-examinePWl Rashid Charles, Daudi Mokiwa. The Appellant was therefore unable to discredit the testimony and he was the key witness to the -prosecution, as he was convicted because of the phone alleged to belong the PW1, despite it s discrepancy or contradiction mark on the battery. 5 Referring to the c a s e of REANTUS M A SY V.R Criminal A p p e a l no. 244 of 2011, where the only complaint to the effect that the Learned Trial Magistrate did not give to the appellant an opportunity to cross- examine PW3 in that ca se , the Court of Appeal started that this was a denied of his rights to a fair trial and the proceedings were rendered a nullity. r ^ , The case referred to above in similar to this as it the key-witness who was not cross-examined. 4’ • Failure to give an appellant right tor cross - examination is as - 1 well contrary to section 147 (1) and (2) of the Evidence A ct, C a p . 6 R. E. 2002. i Although in the ca se referred to an order foretrial was given, considering the nature of this court, the issue of the cross- examination was not the only one. - As started ab o ve he witnesses were not credible and there was no proper identification. For these reasons I allow the ap p eal, qua^h the conviction and set aside the sentence and order relating to the money and the mobile phone. The appellant is therefore released from prison, unless otherwise lawfully held 6 It is as well ordered that the money Tshs. 3,265, 000/= and the mobile phone m ake NOKIA MODEL 6300 be to the Appellant. 7 9 DATE: 2/5/2014 CORAM: U. MSUYA, J. APPELLANT: Present RESPONDENT: Mr. Mfinanga - State Attorney C/Clerk: Sarah ' 'r * \ *4 X Order: Judgm ent is delivered on the<2nd.d a y of May, 2014 in the presence of the Learned' Stat£ Attorney, Mr. Mfinanga and the Appellant in person. r ' :