20151001 TZHC Dar es Salaam

,, . l ., .w_ . .-i ·• IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 8 OF 2015 (From Temeke District Court Criminal Case No. 644 of 2010 Hon. Mbonamasabo, RM) 1. FRANK JOHN LIMBAGA @ LAMPARD ............. . 1 sr APPELLANT 2. ODOMAL PETER MKINGA @ NGOSHA ........... . 2ND APPELLANT VERSUS .. '• THE REPUBLIC ................................................... . RESPONDENT. Last order: 31 st August, 2015 '_ --Date ofJ.udgmeJJt:____ 1~_Qg:QQ~i_ 2015 JUDGMENT FELESHI, J. In the District Court of Temeke at Temeke, the appellant and nine (9) others, that is, Mrisho Hamis, Abel Kilwa Mbata, Herry Mussa Tindwa, Frank John Limbanga @ Lampard, Peter Ernest Kitosi, Geofrey Isdory Nyasio, Odomal Peter Mkinga @ Ngosha, Peter Alen Mayo, Said Shaban Mpangile @ Side boy and Godfrey Ezekiel Kikambaka were all charged as 1st to 10th accused persons respectively, with three count. The counts are: on~, Conspiracy to commit the offence of armed robbery: contrary to sections 384 and 385 of the Penal Code, [CAP. 16 R.E, 2002] against all the accused, that is, the 1st to 10th accused persons; two, Armed robbery: contrary to section 287A of the Penal Code (supra); three, Gang rape: contrary to section 130(1) & (2) of the Penal Code (supra) against the 4th to 10th accused persons. Page 1 of 9 r- In the charge of armed robbery, it was alleged that, on 11th day of March, 2010 at around- 03:00 hrs at Chamazi Temeke District-within Dar es -- - -- ·-- ~ Salaam City, the 4th to 10th accused persons stole one motor vehicle make Toyota Land Cruiser (silver colour) with Registration No. T 862 AZN with chassis number KZJ 950099181 valued at Tshs. 28,000,000/=. Ot_her stolen properties by the accused persons were, 1 piece of television make Samsung valued at Tshs. 800,000/=, 1 piece of Computer make Hitachi valued at Tshs. 450,obot=, 1 piece of mobile phone make blackberry valued at Tshs. 1,000,000/=, 1 piece of mobile phone make ------ Samsung valued at Tsns~OO~0O0t=---;- 2-pieces-of-silver-eMain-valueci-at-·- - - _ Tshs. 200,000/=, 2 pieces of gold chain valued at Tshs. 31,140,000/= all being properties of Rosemary Shija Kasuka. Furthermore, immediately before stealing, they used a machete, a piece of iron bar and axe to threaten. It was also alleged, on the same date and place, the 4th and 10th accused persons had carnal knowledge of Rosemary Shija Kasuka without ' her consent. On evidence, it was also testified by PW4 (AGNES EZEKIEL!) a house girl in PW2's house (Rosemary Shija Kasuka) that on the fateful date •.t' she was also raped by the culprits. All the accused persons pleaded not guilty and were tried.Wwhereas the 4th and 7th accused persons (1st and 2nd appellants respectively) were convicted of the two counts of conspiracy and armed robbery and sentenced to 30 years imprisonment the rest were all acquitted. Aggrieved, the appellants preferred this appeal on 9 grounds namely:- Page 2 of 9 ,;-' 1. That, the trial Magistrate erred both in law and in fact by convicting both _appellants in a case where the prosecution failed to prove their guilty beyond reasonable doubts as charged. 2. That, the trial Magistrate erred both in law and in fact by taking into account the incredible and un procedural visual identification evidence of PW2 against 1 st appellant as one of basis for conviction. 3. That, the trial Resident Magistrate erred both in law and in fact by not assessing the contradictory and conflicting evidence of PW2 and PW3 as to when and to whom the parade was conducted against. 4. That, the. trial Resident Magistrate grossly failed himself in law and in fact by applying a double standard principle in convicting the 1st appellant basing on evidence of similar nature of PW2. 5. That, the Resident Magistrate erred both in law and in fact by -. admitting and considering a repudiated cautioned statement tendered -- - - - - - - by. PWS aga_i11st the 1st appellant marked Exhibit "P4" through inquiry and finger prints examination report tendered-by PW3-of the. inquiry________ _ was admitted un procedural and unfairly against the appellant, neither did PWS the author of the alleged statement read it over to its alleged maker before the Court. 6. That, trial Resident Magistrate erred both in law and in fact by convicting the 2nd appellant based on a repudiated Cautioned Statement of the 1st appellant without any justified corroborated prosecution evidence contrary to the mandatory provisions of the Tanzania Evidence Act, [CAP. 6 R.E, 2002]. 7. That, the trial Magistrate erred both in law and in fact by convicting the 2nd appellant in a case where the prosecution failed to lead investigatory evidence as to how he was apprehended in connection with the crime at hand. , ·1 8. That, the trial Magistrate erred both in law and in fact by convicting both appellants for the offence of conspiracy where the prosecution failed to lead tangible evidence to suggest that they conveyed to plan to act unlawfully by unlawfully means. 9. That, the trial Court erred both in law and in fact by convicting the appellants in a case which was poorly investigated and prosecuted. The hearing of the appeal was conducted orally whereas the appellants appeared in person while the Respondent/Republic was represented by Mr. Tawale learned State Attorney. Addressing the grounds of appeal, both Page 3 of 9 I ... - the 1st and 2nd appellants prayed for the grounds of appeal to form integral part of their submissions with prayer for their appeal to be allowed. On his part, Mr. Tawale learned State Attorney argued for the 1st and 2nd grounds of appeal that, PW2 (the victim) identified the appellants through enough light in her room in which the 1st appellant get hold of her so that she could be raped by his fellows. Besides, PW2 identified the 2nd appellant as he was the one who ordered surrender of the key for her motor vehicle. -- -- --He- -cited -t:he-Gase--of -WAZIRI _Af!'_A_f~H- ~~---~~~~BLIC [1980] T.L.R 250 where the Court of Appeal of Tanzania held that, visual identification is the weakest and unreliable piece of evidence unsafe to be relied upon by Court unless all possibilities of unmistaken identity are eliminated. Besides, Mr. Tawale leaned State Attorney submitted that, the conditions in PW2's room were sufficient was a proper identification through enough light, short distance and that the incident lasted for more than thirty (30) minutes. In respect of the 3rd ground of appeal, Mr. Tawale learned State Attorney submitted that, though true that the testimony by PW2 was that Identification Parade was conducted on 07/04/2010 while that of PW3 was that the said Identification Parade was conducted on 07/04/2011, he argued that, such a difference cannot be construed fatal for that was a minor discrepancy which did not go into the root of the case. Regarding the 5th ground of appeal, the learned State Attorney submitted that, 1st appellant's Cautioned Statement was recorded by PWS Page 4 of 9 where he confessed. He added that, an inquiry was conducted after the 1st appellant repudiated his Cautioned Statement and hence, admitted. Besides, the prosecution led evidence to the effect that, the Cautioned Statement was authored by the very 1st appellant. As to the 6th ground, Mr. Tawale submitted that, the Cautioned Statement was as such tested vide an inquiry by the trial Magistrate that the same was secured voluntarily. Mr. Tawale learned State Attorney cited the case of TWAHA ALLY vs. REPUBLIC, Criminal Appeal No. 78 of 2004 where the Court of Appeal of Janzania underscored that:- "Where an objection is raised in connection to the confession on inquiry must be conducted before that independence is admitted". Besides, the Cautioned Statement of the 1st appellant was corroborated by the evidence of PW2 who testified to have properly identified both the appellants on the fateful date. He cited the case of TUWAMOI vs. UGANDA [1967] E.A. 84 where the East African Court of Appeal held that:- "The connection should not solely base on the confession of the accused unless it is corroborated by other evidence". Regarding the 7th ground of appeal, the learned State Attorney submitted that, the evidence of PWl shows how the 2nd appellant was arrested in connection with the offence he was finally charged with in which, the 2nd appellant had the motor vehicle at Sinza Africa Sana area where the motor vehicle had a different plate number, that is, T. 932 AKD while the number printed on the motor vehicle window read T. 862 AZN. Page Sof 9 Due to the differences and for the purposes of implicating the 2nd appellant with the charged offence, the arresting officers had to wait until the 2nd appellant got inside the motor vehicle to pick a bottle of water and effect the arrest. As to the 8th ground, Mr. Tawale submitted that, the offence of conspiracy died consequently after proof of the major offences. In respect of the 9th ground of appeal, the learned State Attorney submitted that, the prosecution evidence was water tight to earn a safe conviction against ------ -.---tbe ___app_ell~nts beyond reasonable doubts as held in the case of - - - - ------ CHRISTIAN KALE & ANOTHER vs. REPUBU:C-Il99-ir-T~a:-.-R--302--w-her:e--tbe _______ ~ Court of Appeal of Tanzania held that:- "An accused ought to be convicted on the strength of the prosecution case". In rejoinder, both the appellants reiterated their submissions in chief and urged this Court to allow their appeal. After considering the respective submissions by the appellants on one hand and the learned State Attorney for the Respondent/Republic on the other hand, the following are the deliberations of this Court in disposal of the appeal at hand. From what has been availed above per the Court record, the pieces of evidence capable of finding conviction against the appellants ( accused persons) are the testimonies by PW2 (the victim of armed robbery and rape) and PW4 (the victim of rape) who were eye witnesses on one hand and the Cautioned Statement by the 1st appellant (4th accused) which was also the basis of conviction in the trial Court. Page 6 of 9 .. Starting with the testimonies by PW2 & PW4, these witnesses essentially proved beyond reasonable doubt that the charged offences were perpetrated at PW2's home on the fateful night. They were there and were the ones who suffered from the terrible invasion and subsequent robberies and rape. PW2's ably identified the 1st appellant being amongst her assailants. She deposed at page 14 and 15 of the typed proceedings: " ... I identify (sic) 6 th accused person Geofrey Isidory and 4 th accused Frank John Lampard. I then gave my statement. I remember these two accused, the 4 th accused hold (sic) me so as I can be raped ... I _ _identifi.ed t;h9s_e _fiye_p!i!rson~ t_here were enough light on my room" And when cross-examined by the 1st appellant he replied at page 15: "You were 5 in my room. I did not know you before. I was called for identification parade after you (sic) arrest in different dates. I remember I identified you on parade of 30/4/10. I identified you as I saw you at the scene ... " It was PW2 evidence that the incidents happened inside their bedrooms and that electric lights were on. Her evidence on rape was corroborated by PW7 and her PF 3. Though the trial magistrate did not clearly make findings of that corroborating evidence the court did however state at page 26 that- "in general what I find (my findings) in this case, the only PW2 was raped". Based on that piece of evidence and PW2's testimony on how she identified the 1st appellant in her room where the assailants spent a considerable time to fulfil their evil missions against the victims as illustrated above, I squarely subscribe to Mr.Tawale's submissions that the decision of the Court of Appeal in the case of Waziri Amani (supra) is authoritative and applicable in the case at hand. I thus have no reason to interfere with the trial magistrate's assessment on the Page 7 of 9 .. credibility he attached to PW.2 and PW.4 and also basing on that evidence , to holding the 1st appellant liable for the offences. - - There-is evidence ·by PWS that the-1s.t appellant freely and v0luntarily - gave his Cautioned Statement confessing to have participated in the offence of armed robbery together with the 2nd appellant and others who were acquitted. The inquiry by the trial court and further evidence tendered confirmed the Cautioned Statement to be nothing but the writings of the 1st appellant. I am fully contented that that evidence - - -=-- - corroboratestne-evidem:e-aoduced ·by-PW2, PW4 and PW-5 -and just:ifies-the- ~ ~-- decision by the trial court to convict and sentence both appellants. The reliance by the trial court on the 1st appellant's confession in my view was well within sections 27(1) and 29 of the Evidence Act, [CAP. 6 R.E, 2002]. This Court (Hon. Katiti, J, as he then was) once held in the case of losephat Somisha Maziku v. Republic [1992] T.L.R 227 (HC) that: "(i) While it is trite law that the condition precedent for the admissibility of a confession is its voluntariness, a confession is not automatically inadmissible simply because it resulted from threats or promise, it is inadmissible only if the inducement or threat was of such a nature as was likely to cause an untrue admission of guilt"[emphasis added] My reading against the 1st appellant's repudiated confession reveals that except for the allegations of rape, the rest contents in the statement offers a true account of what happened at the scene and are compatible to PW2's testimony in as far the conspiracy and commission of armed robbery offences is concerned. The same could even have earned a conviction in terms of the decision made by the Court of Appeal of Tanzania in the case Page 8 of9 of HATIBU GANDHI & OTHERS vs. REPUBLIC [1996] T.L.R-12 where it was held that:- "(vi) A conviction on a retracted uncorroborated confession is competent if the court warns itself of the danger of acting upon such a confession and is fully satisfied that such confession cannot but be true. "(vii) A retracted uncorroborated confession, if truthful, can corroborate other evidence against the confessor". In view of the above, having considered the evidence as a whole, I subscribe to Mr. Frank Tawale that the appeal by the appellants lacks merits in la~ and is hereby dismissed. The conviction and sentence __ ---- -- ~ _entered-13y--Ute--t:ri~l--€ottrt-are--he-rebruphela -and-the-sentence-shafl- be served concurrently. It is so ordered. DATED at DAR ES SALAAM this 1st day of October, 2015. \ Page 9 of 9