20150220 TZHC Mwanza

IN THE HIGH CO~RT OF TANZANIA ~,~ .. AT MWANZA CRIMINAL APPEAL N0.117 OF 2014 ( Originating from Criminal case no.483/2013 at Tarime District Court) . MWIKWABE M_SAFIRI @SESAN ................... ~ ............ APPELLANT VERSUS TH·E REPUBLIC. ■ .1 ■ ■■■■■ •II! ■ m ■ ■ ••••• ■■■ ■ ■■ 11 ■■ 11 ■ •••• • ■ ••••·••• ■■■■■■■ RESPONDENT 11 11 JUDGMENT OF THE COURT 06/02/2015 & 20/02/2015 GWAE, J The above nameq appellant was charged and tried for an offence of armed robbery c/s.287 (A) of the penal code, cap, 16 of R.E 2002 as amended in Act no.4 of 2004.The trial court found the accused now appellant quilt as charged and proceeded sentencing him to a mandatory sentence of thirty years (30) years imprisonment. Aggrieyed by both conviction and sentence, the appellant referred to appeal to this court. The gist of the prosecution· evidence which led to quilt of the appellant was that a group of armed persons including the appellant, forcibly broke the house of one_ Ester w/o John @Gekaga situating at Kyoruba village _within Tarime District. and stol~ three cellular phones and 1 hard cash shs.2,O15,OOO/= all property of the said Ester and immediately before and after they (bandits) threatened the victim by using a gun and after such stealing there was an alarm Whf:reby people immediately gathered at the alarm, the appellant was mentioned at ·gather to have . . been ·identified by the victim (PWl) as well as her son (PW2) and the gather then made efforts to trace footprints from the scene up to the. appellant's residential house at Borega village where he was found in possession of police uniforms allegedly worn by him at the·scene of crime. The prosecutiOI) evidence was also to the effect that the appellant confessed the offence against him before a police officer (PW4). . . In his defence, at _the trial, the appellant denied to have committed the offence adding that he was neither found in possession of police uniform nor did he make any confession to any police officer. The evidence relied by the trial c::ourt to secure conviction was that of identification at the scene of crime, appellanrs described appearance, type of cloth worn by him, in particular and alleged his subsequent being in possession of police uniforms and retracted confession allegedly made by the accused/appellant. The appellant filed a petition of appeal containing 8 grounds of appeal which to my opinion· the same can be summed up into four, to wit: 1. That the trial court misdirected itself when holding that the cautioned statement was freely given or made by the appellant · 2. That the ·trial court .~rred in Law and fact by holding that. the .appellant. was properlyidentified. . 2 3. That the purported search at the appellant's house was invalid as there was no issued search warrant. 4. That the prosecution side had not proved its case beyond reasonabl~ doubts. During hearing of this appeal the appellant advocated himself and he insisted the court to bear with his grounds· of appeal adding that the prosecution was legally wrong for not listing down names of the intended witnesses·. The Republic was represented by one Mamti Sehewa who was assisted by Ms. Mwaseba, both t~e learned state attqrneys, Mr. Mamti .strongly supported both conviction and imposed sentence by submitting that the appellant was properly identified at the scene of crime and the identification evidence was corroborated by search where the appellant was found in poss~ssion of police uniforms adding that the cautioned statement was voluntarily made that is why the trial court admitted it after trial within trial having been conducted, Lastly, Mr. Mamti submitted that the case against the appellant was proved beyond reasonable doubts. . . Starting with the 1st ground of appeal, whether the properly admitted the alleged appellant's cautioned statement, The trial court conducted what · · it an inquiry -instead of calling it 'trial within trial, I think this due to the fact that it was not aware of new development of case law in this legal aspect (see Twaha Ali ands others·V.R, Criminal App~al, No.78 of 2004 - . CAT)When the appellant objected its tendering as an exhibit , the . .. . . prosecution· ,Pw4· ,D/CPL. Hamis complied with mandatory requirement Qf 3 .. . ··. law provided under S.27 (2) of the TEA by proving that the accused now appellant voluntarily made confession. After the trial court having . conducted the said inquiry and being satisfied that it was made by nobody else except the accused, the appellant's cautioned statem·ent was then admitted.I have no reason to default admission of the cautioned statement under S. 27 (1) TEA, as procedure and reason for its admission were given.Hence the trial court is found to have discharged its duty of ascertaining w~ether it was voluntarily made or not except its evaluation in its totality w·ith other p_ieces of evidence, the nature, and quality of the evidence of identification that led to the conviction of the appellants ought to be .diligently determined as authoritatively directed by the Court of Appeal in Thadey Rajabu @ Kokomiti and 2 Others V R criminal Appeal NO. 58 OF 2013. On the second ground of alleged identification of the appellant at the sce·ne of crime,During the .trial the prosecution attempted to satisfy the court that the appellant's identification was unmistaken however the trial court on its judgment correctly discarded the evidence of PWl for failure to have mentioned the appellant at the earliest opportunity as precisely _stated in the Case of Aburaham Daniel vs.Republic ,Criminal appeal no.6 Of 2007-CA-(unreported) and I wish to quote herein below· . ".. though in court the witness said tf!at he was able to . identify the assailant by moonlight he did not mention this fac~ in his statement to the police/ which .was made while the incident was still so fresh'~ 4 The trial court went further observing uncertainty as to distance between the assailants and victims as well as time taken in the commission of the banditry event. If truly the victims (_PWl &and PW2) and the appellant were familiar to each other it could follow tha_t there was no need of conducting parade of identification as was done in this case though not very cle·ar. following the appellant's denial to have_ known them before through his defence and even in the cautioned statement ( exhibit P2) Eg. 'I don't know PW1-in his defence statement · 'safari ya kwenda kyoruba kwenye mjt huo mji simfahamu mwenyewe. kwani mimi ni mgeni'-in the alleged appellant's confession However it from the record that the PW2 mentioned the appellant at gather but it is quite doubtful as mistaken identity as he just told the gather · t~at the assailant whom he identified is tall without further qualification if truly he knew him before the occurrence,here below is the evidence adduced by PW2 when cross examined "I told people who gathered that the one is Stoleis you. While I look at the evidence of _pW3, Sigirwa Mwita, I really find inconsistency and _contradiction between PWl and Pw2 as who mentioned the appellant at the gather? The PW2 is found testifying that it was the PWl who told the alarm respondents that it was the appellant who was · id_enti_fied while the PWI denied to have mentioned the appellant both at 5 the gather and police station. For clarity I wish to quotepart of the testimonies before the trial court. Pw1, the last person to go away was the accused Xx by court. I·did not say {sic} his name after incident,Idid not tell his naine to anybody, I went to police I did not state the name of the accused Pw3... she told she has ·been invaded by one she identified him{sic} called Mwikabe Sesan Contradictions offered by these prosecution witnesses to my view seriously vitiate the trial court finding as to alleged unmistaken identity of. the appellant at the scene of crime, The prosecution evidence ought to be consistent in regard to whether the appellant was unmistakably identified and subsequently mentioned or immediately named by either victim(s) or eye witnesses. In JARIBU ABDALLAH V · R., (2003) TLR 271-Court of. Appeal· of Tanzania correctly arid authoritatively held that: "in matters of identification, it is not enough merely to look at · factors favouring accurate identification. _ Equally important is the credibility of the witnesses. Though _favourable · conditions might appear to be ideal.," Now coming the ground no.3, the appellant's complaints is that the search · _ · was conducted by unauthorized persons without_ search warrant, The . 6 prosecution submitted though the search warrant was issued but the same J was conducted under supervision of person in authority that street chairperson. Search in criminal cases is ordinarily performed by using valid search warrant issued by the relevant authority, however there exceptional . . circumstances where search can be conducted without pre requisite search warrant (see.42 of CPA) In our appeal, the appellant was undoubtedly arrested by private persons . . whq traced the footprints from the scene up to his residential building, in law, Private persons may arrest with or without warrant of arrest pursuant to section -16 of the CPA, Issue whether those private persons are allowed . . to search and seiz~~ £20. Any police officer or other person authorized to make an arrest may break out of any place in order to...purpose of making an arrest, S.43.-(1} not relevant (2) not relevant {3} Where any person in or at out such building or such . place is reasonab/ysuspected of concealing about his person or any article for which searchshould be or is being made, such person may be searched. If that personis a woman, the provisions of section 26 shall be complied with 7 According to the provisions of the Criminal procedure Act if the same are looked in their totality together with the prosecution version of the offence of robbery and the way the appellant came to be arrested that i_s people who gathered at the alarm· closely followed the foot prints which ultimately led them to the appellant1s house and according to the prosecution evidence he was found him therei_n, The gather had therefore reasonable suspicion to arrest and conduct petty and necessary search, ·The appellant's assertion that the persons who searched him had authority in particular has no legal basis however I_ have failed to know whether the allegedly impounded police uniforms were seized and produced in court as exhibit, I say this for very obvious reason that nowhere in the proceedings that the said police uniforms allegediy worn by the appellant on material date were produced and admi~ed as exhibit. With all due respect with the trial court both handwritten and typed proceedings, I have never seen any where either prosecution sought production- of the alleged uniform or court to have inadvertently received without a prayer by the prosecution nor any written document evidencing _ that the accused was found in possession of the said articles except oral evidence by the witnesses, so to speak, this a very serious ordinarily unexpected omission on the part of prosecution as well as the trial court 'if it were true that the appellant was seen at the scene of crime wearing police uniforms and his a·lleged subsequent possession of the same . clothes.I know and aware that the prosecution cannot be compelled to call · its witnesses (See, Vidole ~akugwa and another v, R _Crimin_al appeal _no.7/ of 1995 Court of Appeal at Myvanza) n~r- is required to produce a certain 8 .. document (see section 39 of CPA), This position was correctly stressed in ) the most and recent decision of the court of Appeal in Bernard Masumbuko and· 2 others, Criminal Appe~I no213/ 2007- [ unreported] "if the prosecution fails to tender material evidence in its possession; that will be to its detriment and an advantage to the defence. I am a_lso aware that failure· by the prosecution to produce only goes to the weight of evidence and _not ad_missibility of the testimony" (see the decision of this court in Julius Bille_ v R (1981) TLR 333), Thus seriousness and. diligence;:ire vital in prosecution in order. to have its · evidence considered credible where it deserves so instead of creating vacuums. Worse still in the proceedings the cautioned statement was admitted as exhibit P2 but when I careful perused the record, at the top of the admitted cautioned statement it is marked exh.pL Before dealing with-the 4th ground of appeal, I think it is necessary to comment on whether the omission by the prosecution to list down its witnesses was fatal or prejudicial to appellant, In practice a list of prosecution witnesses is given during· PH. Pursuant to. section 192 of CPA, Failure by the Court to properly hold or no t9 hold at all,a ·preliminary hearing does not necessarily vitiate the trial if the accused . person was not prejud\ced (see case .of ·MsemaK~el_i V.R (19.97) TLR 9 ~ _) 33. It is my view therefore conducting a preliminary hearing is a necessary prerequisite in criminal trial; it is not discretionary, (see Bernard Masumbuko( supra} Presently, looking at the wording of the provisions of Sec.192.of CPA do not provide for requirement of naming witnesses, In our case the prosecution merely stated it would bring four witnesse·s but facts were read over and explained as shown in the record and the appellant was afforded time to sign thereof. I think the omission did not cause injustice or unfair hearing to the_ appellant . Looking now at the evidence _adduced by the pro~ecution during trial,. I · think the trial court had a duty to closely and carefully look at the evidence on record in totality and not in isolation, As noted that the prosecution witnesses contradicted themselves as to whether the appellant was immediately named by the _identifying witnesses (PWl &PW2) to the gather -. -. including PW3,the evidence ought to objectively be evaluated and be treated as a whole.In the case of Shabani Amiri V. R Criminal Appeal no.18/ 2007 Court of Appeal at Arusha·stated that and I quote: ''We have carefully and dispassionately scanned the entire evidence on record. We have found the prosecution case _to be flawed by inconsistencies and contradictions which go to the extent of . impeaching the credibility of t_he ·three key prosecution . witnesses'~ . 10 It is further observed that what was ailegedly stated by the appellant in the ) cautioned statement (exh.Pl) is to a certain degree different for instance, familiarity between the identifying persons and one allegedly identified (appellant),alleged to have · a gun during the banditry act for easy understanding part of the cautioned statement is here below quoted. "Mji huo simfahamu mwenyewe~.Mwenzetu mmojaa itwaye John yeye a/ikuwa na bunduki yaaina gani ila alikuwa nayo/ aliyeingia ncjani ni Chacha na m/mi nilibaki nje hatukujua hao wenzetu wamechukua shilingi ngapi kwani sisi tulibaki nje' In this piece of evidence when carefu! read it together wi~h that of PWl and PW2, in regard to the following,· who was armed? Who entered the invaded house?Whether the identifying witnesses knew the appellant before? the cautioned statement though said to have been made freely put the same differs greatly in some of. vital things as to alleged unmistaken identification, slight differences do not always affect credibility unlike in this present appeal, worse enough this kind of cautioned statement · (alleged confession) ought to be . adequately corroborated for instance being found in possession of alleged worn police uniforms which were unfortunately not produced in court, this legal position was emphasized in case of Maselo Mwita and another, Criminal Appeal· no.63/2005 - CAT Mwanza where the cautioned statement (Exhibit P3) was retracted and the court held that corroboratio.n in the peculiar. circumstances ofcase was n_eeded, as to my view, the ca~e in this particular appeal. 11 ~-=----.-·-------· Be as it may, I am satisfied that the trial court did not properly direct its mind to the above aspects of the nature and quality of the evidence of identification of the appellant and that of cautioned statement on which the conviction was based. Had it evaluated so it would not have come to that . . conclusion. So, I find that the appellant was not satisfactorily identified; it therefore leads to the inevitable conclusion that the prosecution case was not proved beyond reasonable doubt. The _appeal is therefore anowed, The convictio_n is consequently, quashed and the sentence is hereby set aside. The appellant is to be released from prison forthwith unless he is held for some other lawful cause.- Court: Right of appeal explained Gwae,J 20/02/2015 12 20/2/2015 ,.,) Coram: Hon. Gwae, J Appellant: Respondent: C/C: Misungwi Court. Matter is for delivery of judgment. Parties: We are prepared to receive the .appeal result Court: Judgment delivered in the presence parties as indicated in_ the a Coram above Gwae,J 20/2/2015 Order: Parties are to be supplied with copies of judgment today are ready collection without court fees as per S.313 of CPA Gwae,J 20/2/2015