charles mato isangala others vs republic 2015 tzca 174 28 may 2015

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: RUTAKANGWA. J.A.. MUSSA. J.A.. And JUMA, J.A.^ CRIMINAL APPEAL NO. 308 OF 2013 1. CHARLES MATO ISANGALA 2. MOSI MALIMA APPELLANTS 3. HAMIS RAMADHANI VERSUS THE REPUBLIC......................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Mchome, J.) dated the 20th day of December, 2005 in Criminal Appeal No. 212 of 2004 JUDGMENT OF THE COURT 26th May & 1st June, 2015 JUMA. J.A.: According to the particulars of the charge sheet laid before the trial District Court at Tarime, it took slightly more than thirty minutes from 6.00 p.m. to 6.30 p.m. on 5/5/2003 in the midst of the Lake Victoria, for the three appellants, CHARLES MATO ISANGALA, MOSI MALIMA and HAMIS RAMADHANI to use actual violence in order to steal four engine boats, nets and other fishing items from four different boats which were at the time fishing in the lake. For this, the appellants were charged with four counts of the offence of armed robbery contrary to sections 285 and 286 of the Penal Code, Cap. 16 as amended by Act No. 10 of 1989. The trial magistrate made a finding that the prosecution had proved all the four counts beyond reasonable doubt. He accordingly convicted the appellants and sentenced each one of them to serve thirty years in prison and twelve (12) strokes of the cane for each count. He ordered the sentences to run concurrently. The appellants manifested their grievance by appealing to the High Court of Tanzania at Mwanza in Criminal Appeal No. 212 of 2004. They did not succeed because, within a space of two pages, Mchome, J. dismissed their appeal. He found what he described as "ample evidence to support the conviction o f the appellants" In their supplementary memorandum of appeal to this Court, the appellants have loaded their grounds of appeal with submissions, and occasional supporting authorities. We were able to discern five distinct areas of complaints requiring the attention of the Court. Firstly, they question the way the first appellate Judge upheld their conviction on the basis of the visual identification evidence of three complainants, PW1, PW2 and PW3 and subsequent dock identification which was allowed without so much as requiring the complainants to have earlier furnished the description of their assailants. Secondly, the appellants raised concern over the way the doctrine of recent possession was applied to link them with exhibits PI, P2, and P3. They urged us to find that the recovery of the stolen boat engines and the way these engines were tendered and exhibited, infringed the 2 applicable legal procedures. Thirdly, the appellants maintained that in light of contradicting evidence of PW6 and PW7, the boat engines which were allegedly stolen were not positively identified in court as belonging to the complainants. Fourthly, the appellants contended that the two courts below failed to consider their defence. Lastly, the appellants contest the evidence of identification parade in circumstances where Police Form No. 186 was not exhibited in court to prove its conduct to justify the subsequent dock identification. When this appeal came up for hearing before us on 26th May, 2015 the third appellant, Hamis Ramadhani was absent. According to the information from the Officer in Charge of Butimba Prison, this third appellant passed away on 14/12/2013. Following his passing, we accordingly ordered the abatement of his appeal in terms of Rule 78(1) (a) of the Tanzania Court of Appeal Rules, 2009. The remaining first and second appellants, Charles Mato Isangala and Mosi Malima, represented themselves. Mr. Paschal Marungu, learned Senior State Attorney, appeared for the respondent Republic. The appellants preferred to let Mr. Marungu respond to their grounds of appeal. When he rose to address us, the learned Senior State Attorney took a position of supporting the appeal. He summarized the grounds of appeal into two main areas of complaints which the learned State Attorney proposed to submit on. First, the grounds of appeal contend that the first appellate Judge erred 3 when he relied on evidence of visual identification. Secondly, he reckons that the appellants through their grounds of appeal, believe that the learned Judge on first appeal erred to invoke the doctrine of recent possession. Beginning with the visual identification evidence of PW1, PW2 and PW3, Mr. Marungu submitted that these complainants had on one hand said that they were able to identify the appellants as their assailants during the armed robberies. The same complainants also testified on the fact that they did not know the appellants both by name and appearance. Mr. Marungu wondered aloud how, the complainants could still manage to identify the appellants at the police station without so much as conducting an identification parade. He submitted that in so far as no identification parade was conducted, the claim that the complainants could still recognize the appellants at the police station is untenable. He in addition described as incorrect, the conclusion reached by the learned first appellate Judge that "th e ro b b e rs w ere a ls o id e n tifie d b y th e P W s a t a n id e n tific a tio n p a ra d e ." The learned Senior State Attorney reiterated that he was in full agreement with the appellants that from evidence on record, it cannot be said with certainty that the appellants were behind the incidents of armed robberies which took place on 5/5/2003. According to Mr. Marungu, the lasting impression from the record is that the appellants were for the first time identified when they stood in the dock. 4 Moving on to the next ground on the application of the doctrine of recent possession, Mr. Marungu submitted that the appellants could only have been correctly convicted if the conditions settled for the application of the doctrine are satisfied. With regard to the conditions for invocation of the doctrine of recent possession, he referred us to unreported decision of the Court in James Kisabo @ Merango & Another vs. R., Criminal Appeal No. 261 of 2006 which referred to another decision of the Court in Alhaji Ayub @ Msumari & Others Vs. R., Criminal Appeal No. 136 of 2009 (unreported) wherein four conditions for the application of the doctrine of recent possession were highlighted: "... b e fo re a c o u rt o f la w ca n re ly on th e d o c trin e o f re c e n t p o sse ssio n a s a b a s is o f c o n v ic tio n in a c rim in a l ca se , ...... I t m u s t p o s itiv e ly b e p ro ve d \ f ir s t th a t th e p ro p e rty w as fo u n d w ith th e su sp e c t; se c o n d ly , th a t th e p ro p e rty is p o s itiv e ly th e p ro p e rty o f th e c o m p la in a n t; th ird ly th a t th e p ro p e rty w a s s to le n fro m th e co m p la in a n t, a n d la s tly th a t th e p ro p e rty w a s re c e n tly s to le n fro m th e co m p la in a n t. In o rd e r to p ro v e p o sse ssio n th e re m u s t b e a c c e p ta b le e v id e n ce a s to se a rc h o f th e s u s p e c t a n d re c o v e ry o f th e a lle g e d ly s to le n p ro p e rty , a n d a n y d is c re d ite d e v id e n ce on th e sa m e c a n n o t s u ffic e , n o m a tte r fro m how m any w itn e sse s". 5 To support his position that the recently stolen boat engines cannot be said to have been found with the appellants, Mr. Marungu revisited the evidence of the arrest of the appellants by Detective Corporal Daud (PW7). PW7 testified on how on 17/5/2003 he and detective corporal Andrew were sent by the Regional Crimes Officer Mwanza to Kamanga Ferry shores in Sengerema District to follow up on an informer report about the boat engines that had earlier been stolen. Upon his arrival at Sengerema, PW7 in the company of several police officers saw, along the lake shores, three engines which were fixed on three boats. The three appellants who were nearby were arrested while mending their fishnets. The arrest was witnessed by three women who were in the company of the appellants, and by the wife of a ten-cell leader. The police then searched three nearby houses where they found another six boat engines. The wife of the ten-cell leader informed the police that those houses belonged to one Kishimba. Mr. Kishimba had rented them out to fishermen from Musoma. When they were arrested by PW7, the appellants claimed that they did not own the boat engines. Apart from a total of nine engine boats which PW7 took with him back to the Central Police Station in Mwanza, he brought along 11 fuel tanks and fuel pipes. Mr. Marungu submitted that under the circumstances of the arrest, their possession of the nine boat engines cannot be said to be certain. It is not clear if 6 the appellants owned the boats or were even the tenants in occupation of the houses which the police searched. Only Mr. Kishimba could help. The learned Senior State Attorney had another reason why he thought the appellants were in law not found in possession of the recovered boat engines. He referred us to the evidence of the complainants who identified in court the serial numbers of their stolen boat engines. Yet, upon his cross examination by the first accused, PW7 was definite that the boat engines he recovered from Sengerema had no serial numbers. Again, PW7 was not shown the boat engines which the complainants- PW1, PW2 and PW3 tendered as exhibits. So, the boat engines which PW7 recovered could not be the same as the serial numbered boat engines exhibited as evidence against the appellants, Mr. Marungu surmised. He could help but wonder why, after he had prepared his search party well in advance of the visit to Sengerema, PW7 still failed to exhibit Search Order and Certificate of Seizures. Mr. Marungu also wondered why the wife of the local ten-cell leader ( Balozi) who witnessed the search and arrest of the appellants was not called to testify as an independent witness. The appellants, when called upon to respond, they had nothing to add. From the submissions on the grounds of appeal, it seems to us that this appeal turns on two salient matters. First, is on the way the two courts below re­ evaluated the evidence of visual identification at the scene of crime and dock 7 identification. Secondly, on the way the doctrine of recent possession was invoked to link the appellants to the engine boats which the police from Mwanza recovered in Sengerema district. It is, therefore, imperative that we consider these two issues. The settled rule on probity of evidence of visual identification which has been laid down, and consistently followed by the Court is that evidence of visual identification shall not be acted upon unless all possibilities of mistaken identity are eliminated and that the court concerned is satisfied that the visual identification evidence before it, is absolutely water tight: (see Chokera Mwita vs. R., Criminal Appeal No. 17 of 2010 (unreported) which referred to Waziri Amani v. Republic (1980) TLR 250 and several decisions of the Court which followed it). Ernest Odoyo (PW1) was the first victim of armed robbery. He narrated what transpired at 6.00 p.m. when he and another person by the name of Raidi, while fishing in their boat, were set upon by the bandits. Within the space of a quarter of an hour, the bandits had unfixed and stolen their boat engine together with their fishing nets. Riding on an apparent faster boat, the approaching bandits began firing shots into the air when they were within 40 metres of PW l's boat. A third shot was fired when the bandits were within ten metres from their target. Faced with so many flying bullets, PW1 and his colleague obeyed the 8 order to lie down on their boat. During his examination in chief, PW1 claimed to have identified all the three bandits: "...As I fe ll on the boat flo or I m anaged to identify the invaders. The 3rd accused fth e se c o n d a p p e lla n t h e re in 7 was the one who had the gun. The others struggled to untie our engine as h is fellow transferred som e nets we had in the boat to th eir b o at The sun had n o t se t and so there was enough light. A s I la y on the flo o r I had m y face up and so I very easily id en tified the three .... I rem ained in the lake till the follow ing m orning when we started tow ing fr o w in a l our boat tow ards the dry lan d ...." [Emphasis added]. But, upon being cross examined by Hamis Ramadhani (now deceased), PW1 modified his earlier assertion by stating that he identified only the bandit who carried a gun, that is, the second appellant herein: "... I id e n tifie d th e o n e w ith th e g u n b e fo re I la y d o w n ." This evidence of PW1 leaves begging the question whether this witness also managed to identify the first appellant and Hamis Ramadhani. Again, when he was cross examined by the first appellant herein, PW1 stated: "...I id en tified the others as one took o ff the engine and the other the nets. The second accused f 1st a p p e lla n t h e re in 7 was one o f 9 those I id entified from the m any a t Mwanza Police Station.,.. A fter identification we le ft them a t the police station. "[Emphasis added]. Jomanga Ndalawa (PW2) was the victim of the second incident of armed robbery which took place from 6.15 p.m., that is, fifteen minutes after the first incident. The identification evidence of PW2 states: "...I identified the four people. Three o f these are the accused in this court.... 1st accused Kham is Ram adhani FH am is R a m a d h a n il had the gun, while the 2nd and 3rd accused F firs t a n d se c o n d a p p e lla n ts 7struggled to take aw ay the engine. I t was n o t y e t dark because the sun had n ot se t when they ordered us to s it down with our hands up I took that tim e to m ark th eir faces..." [Emphasis added]. Whilst being cross examined by Hamis Ramadhani, PW2 stated: "To Mwanza I went to identify the engine and the robbers. There were about ten people in the police cells and out o f them I identified these three accused persons. I had not gone to identify names. I had known th eir faces only and n ot th eir nam es." 10 The third incident of armed robbery involved Juma Mashimba (PW3) which took place twenty five minutes after the first two incidents. The identification evidence of this witness states: "... Two youths boarded into m y boat from that invading boat and cam e to take up m y engine together with the rem aining 18 nets. A ll th is tim e I s till sa t a t where I had been ordered to se a t They took aw ay the engine together with its fu e l gallon and fu e l pipe.... I also rem em ber going to Mwanza where I id en tified three o f the robbers from a group o f ten people. These are the accuseds in court today. The fourth is n o t seen here, I also identified m y engine. I had very easily identified those fou r robbers on the m aterial day because the sun had n ot y e t s e t..." The trial magistrate (A.L.M. Mallya-SDM) evaluated the visual identification evidence of PW1, PW2 and PW3 in the following way: "The first issue to deal with here is that o f identification o f the accused persons. I t was between 6.00 and 6.30 p.m . and according to prosecution evidence the sun had n ot set. There was no darkness then. There was the tim e used to unlock/untie the engines from where they had been fitted, ferrying them in the robb ers' boat, and the fa ct that those robbed d id n ot have their li faces covered. I t is therefore m y considered opinion that those being robbed had enough tim e to identify the robbers. .... The robberies took place on 5/5/03 and about twelve days later the robbers were arrested and identified a t Mwanza Police Station. They had been identified in court and they have n ot queried this. The tim e taken from when the robbery was com m itted to the tim e the accused's were arrested and identified by those robbed, coupled with the fa ct that robbery was com m itted a t broad daylight have m ade me believe that the identification was properly m ade." It seems to us that the generalized observation by the trial magistrate that "It was between 6.00 and 6.30 p.m. and according to prosecution evidence the sun had not s e t does not lend any assurance that the trial magistrate eliminated all possibilities of mistaken identity before relying on the identification evidence of PW1, PW2 and PW3. The duty of the first appellate court when faced with evidence of visual identification was restated in 1. Sokoine Range @ Chacha, 2. Nyamanga Range @ Chacha vs. The Republic, Criminal Appeal No. 198 of 2010 (unreported). The Court underscored that the first appellate court is obliged without fail, to subject "the entire evidence to an objective scrutiny and arrive at his own findings of fact." In the instant appeal before us, the first appellate 12 judge did not subject the identifying evidence of PW1, PW2 and PW3 to that objective re-hearing and re-evaluation the Court emphasized in 1. Sokoine Range @ Chacha, 2. Nyamanga Range @ Chacha vs. The Republic (supra). In fact, Mchome, J. on first appeal restricted his scrutiny to the evidence of PW3, generally describing this witness as amongst the prosecution witnesses who identified the three appellants at the scene of crime. But, looked at closely, the evidence of PW3 alludes to visual identification in a mere generalized, and it seems to us unhelpful, for the elimination of all possibilities of mistaken identity: "...These are the accuseds in court today. The fourth is not seen here, I also identified m y engine. I h a d v e ry e a s ily id e n tifie d th o se fo u r ro b b e rs on th e m a te ria ! d a y b e ca u se th e su n h a d n o t v e ts e t... "[Emphasis added]. In our own assessment of the evidence on record, we do not think that all possibilities of mistaken identity were eliminated to make the identification of the three appellants at the scene of crime absolutely water tight. In Masolwa Sindano and Gerald Sindano vs. R, Criminal Appeal No. 235 of 2011 (unreported) this Court discouraged the identifying witnesses from making general statements when identifying the offenders at the scenes of crime. For purposes of the instant appeal, the general and sweeping statements like " the sun had n ot set!' by the trial court; or " The robbers were iden tified b y the victim s, PW1, 2 and 3 as it was a t around 6.00 p.m . and there was enough 13 lig h t" by the first appellate court; do not in themselves eliminate the possibility of the witnesses mistaking the appellants. We as a result hold that the appellants were not positively identified at the scene of crime. In the result, Mr. Marungu is fully entitled to conclude that the visual identification evidence has not linked the appellants to the armed robberies of 5/5/2003. He is also correct in submitting that it is quite possible that the appellants were for the first time identified by the complainants when they appeared in court. The record also bears out the learned Senior State Attorney in faulting the conclusion reached by first appellate Judge that appellants were identified at an identification parade. No such identification parade was conducted. Next, we move on to consider the submissions on the application of the doctrine of recent possession. With due respect, Mr. Marungu has correctly relied upon the conditions guiding when to invoke the doctrine as laid down in many decisions of the Court, including the two unreported decisions in James Kisabo @ Merango & Another vs. R. and Alhaji Ayub @ Msumari & Others Vs. R. (supra) which the learned Senior State Attorney referred to us. He has, to our satisfaction, addressed the two salient conditions at the centre of the doctrine of recent possession as to whether, the appellants were found in possession of the boat engines at Sengerema; and whether those engines which had serial numbers, were properties of the complainants. 14 We agree with Mr. Marungu that lack of evidence tending to prove either actual or constructive possession by the appellants of the nine boat engines which PW7 recovered from Sengerema, makes it impossible for this Court on second appeal to conclude that the appellants were found in possession for the doctrine of recent possession to apply. Possibility that the appellants were in possession of the engines that were stolen during the armed robbery is further diminished when the evidence of the complainants who identified the stolen engines in court, is compared with the evidence of PW7 who recovered the alleged stolen engines. The complainant PW1 identified the stolen engine (exhibit PI) in court by its serial numbers and distinct identifying marks: "In the police store we were shown .. m any engines about nine in total ou t o f which I identified the one stolen from me which had s e r ia l n u m b e rs 1 0 1 1 0 9 6 -1 5 H P . M v e m p lo y e r h a d a re c e ip t to th a t e n g in e a n d h e sh o w e d it up . I f I see that engine today I m ay id en tify it The e n g in e b e a rs fig u re s 1 5 to g e th e r w ith s e r ia l n u m b e rs. I also wrote the nam e "Ja c k s o n " on it (w itness show s up h is identifying m arks on an engine) I pray to tender the sa id engine as exh ib it "[Emphasis added]. On his part, PW2 was also definite that the engine that was stolen from his boat (Exhibit P2) had serial numbers: "...Later I g o t reports that the stolen engine had been recovered a t Mwanza. I w ent to Mwanza to id en tify the robbers who were then a t Mwanza Police Station ....... There were m any engines there too but from them I identified the one stolen from me. I t s s e r ia l n u m b e rs w ere 1 0 0 3 6 3 4 Yam aha 9 .9 H P. The e n g in e a ls o b e a rs th e n am e "Is a a k " o n th e f a il (sic). I p ray to tender this engine as exhibit. "[Emphasis added]. The third complainant (PW3) similarly identified the stolen by its serial numbers which he tendered as Exhibit P3: "...My stolen engine had s e r ia l n u m b e rs 0 5 1 2 2 2 -9 9 H P . I h a v e a re c e ip t fo r th is e n g in e ......Later we came to hear that som e boat engines had been recovered a t Mwanza. O ne o f u s tra v e lle d to M w a n za w ith a lis t o f a ll th e s to le n b o a t e n g in e s. .... I f I see m y engine today I m ay id entify it. I p ray to tender the engine, its fu e l tank and fu e l pipe as exhibits. [Emphasis added]. But, the irony is the nine boat engines which PW7 recovered from Sengerema had no serial numbers. This evidence came out from PW7 under cross examination. PW7 was not given the chance to comment on the engines with serial numbers which the three complainants exhibited in court. In the absence of proof that the appellants were found in possession of boat engines that were exhibited as evidence against them, it is not possible to apply the doctrine of recent possession. In the final analysis we are satisfied that this appeal has merit. We accordingly quash the convictions of the appellants and set aside their sentences. The appellants shall be released forthwith unless they are held for other lawful cause. The appeal is hereby allowed. DATED at MWANZA this 28th day of May, 2015. E.M.K. RUTAKANGWA JUSTICE OF APPEAL K.M. MUSSA JUSTICE OF APPEAL I.H. JUMA JUSTICE OF APPEAL I certify that this is a true copy of the original. Z.A DEPUTY REGISTRAR COURT OF APPEAL 17