20161028 TZCA Mwanza

·--·• ... - ......,,.-~- ·_ .. -:;:,·-. :, , -; ;._~·-··•s._ ·-- .···•-;:iH/~•,F;rAT MWANZA {CORAM: RUTAKANGWA, J.A':'[ MASSATI, J.~ •• And MUGASHA, J.A.) CRIMINAL APPEAL NO. 132 OF 2015 KURUBONE BAGIRIGV\1A &a OTHERS ................................ APPELLANTS ··._ :,: ·: ···._.: ·- ~-- . . ·::··.:::, .... _ t . ~ . . ... ·.• : {Appeal from the decision of the High Court of Tanzania at Mwanza) {Bukuku, J.) datedllth Day of March, 2015 in Criminal Appeals No.-129 and 130 of 2013 and 9 and 119 of 2014 JUDGMENT OF THE COURT . - _-. -:_:__:/_~r.f~r 26 . 28 .. . th . • th October ,· ·. ·I. 2oi6•· . .. ·_ The appellants"' were charged witfi two counts of armed robbery , . . .·contrary to section 287(A) and the third count of destroying evidence ' contrary to section 109 of the. Penal Code. -·--~ .:.: ;·...· .., .. _, ...,.. _ lt was alleged-Jn the first two counts that, on 25/11/2012 at 02.00hrs all. four,appellants (KURUBONE S/0 BAGIRIGWA, BAKARI S/0 _-.:< .! ~;;, ~-· ·+ .... 1 .tertAHIMQ/: DANIEL S/0. NGARAMA @ YOHANA and JOHN S/0 : NHADULA) acc6rnpanl'ed by another person (YUSUPH S/0 NASSORO) 1 • ,. -__ at Buseresere _villaiie within Chato District in the region of Geita, did steal ,. ..· .,.._:, ., .. ,. -. _,... ., _prbperties __ of_:_A~~>C: §{Q NZILUHILE @ MSASI and DANIEL s/ o --- ' - ' ' >: ::< :.\/jt'.';,,~ · - MARABA . . and 'ifnmediateJy'before such stealing they threatened them with .. - - -- .~'dom~stic wea·pons~;- i~- order to obtain the said properties. In respect of the -third .... - ..· ; ;·. -.- ·- ',: .. -- count, the appellants and the said YUSUPH .,, . -'~ '" •.. . ... . -· S/0 NASSORO, on the same date, time and place after stealing a motor _ _ _ -__ _ _ __-r.:> ·:- ,: _-:/;:</f"4:r . cycle, willfully, did remove its plate No. T.641 BED and numbered it with Reg. T.386 AUU with intent to prevent it from being used in evidence. - -_ The prosec.utiori pafad~c{ seven witnesses and four documentary exhibits - .---- -· -_.-_: s-~ . .:::tl" _- namely: a motor vehitl~ registration card (exhibit Pl), a Vehicle Inspection Report .(exhibif P2). ,.and the cautioned statements of the 2nd and 3rd appellants, (exhibits P4 and PS respectively. -:;~ - .. ·.. ·.~- .. · ~ .. ;: ;r1.:~.:_\<'"-;;;·~~.ii-r··--: . · _ . A_brief'ac:cbuntJ1.nderlying the conviction of the appellants is briefly as follows·: -On 25/11/2012 at 08.00h_rs, armed bandits broke into the house - - of PWl ALEX ·. .. ······--- .' NZILUHILE . --- and his wife COSTANCIA . CHARLES {PW2). ... . ·.:· The bandits ~ssaulted them and made away with an assortment of items namely, cash money- one Nokia mobile phone and a motor cycle make -SUNLG with reglstrattbn'number T 641 BED - T 386 AUU the properties of PWiand PW2, COSTANCIA CHARLES. PW1 clpims to have identified the :• . . . ., :;•;(.' ,O,;,_,.,;:•,~-,' .-... ~• ;:-• ... • .. ••~(:,;.,_ •••• •: /_":••~;)': ;_;'.,[-;,- 2 · PW2 Yefalled to have .identified the appellants as they knew them as •,c-,? __ ... - - residents ofBuseresere.'f>W7 also testified that, on the same date and time ... ~- - •. the armed ba_rictits ~- stormed into his house and took away an assortment of . . . items"induding,-8 gra~.S.. of gold, one Nokia mobile phone and cash money '• '·•· ~-_-,,. ·'"'"" ~- ·- · all withatotc:1! . . .. ~.. Vc,lfLJ_e.ofT~hs.. §60,000/=. PW2 also claimed to have identified .. . . . . . ·- .. ---• ;~-- ... , •·- the app~Hants b~c~Gse oftfi~'";;lar light and he knew them as residents of ··• of the appeU~r1ts_; . . . from Pw·1... ·. He claims to have arrested the appellants ~ .- ~~ ·.,.- , . ,. . , , . following th~ co~fession. statE;ment - -~•· .. of the 3rd appellant who mentioned the -· .. ·i st a:nd 4th ·appellants, ~nd they managed to recover the stolen motor cycle .with its number cha,!)ged in pqssession of the 5th accused who is not among . ~ .. - the appellc:1nts. ,c ._ .•· -All the f9ura·ppellants were convicted on the count of armed robbery. .. . ·.• \,owever; the trial magistrate'dicf not specify if he had convicted them on ··- -;.·:,·-,·-,--, two counts of armed robbery. They were each sentenced to imprisonment · . to a term of 30 years. The 5th accused was convicted on the third count , , .. ,· . .• . . ··"' - '·'"" and given a sentence of. conditional discharge for one year under section ··. ·: .. 3.8(1) of the:Penal Code. '.The appellants'.unsuccessfully ar.i:>ealed to the High Court where the . - . 1~ ·.iJppe~I ~'~s dismissed. AltbougYt~the first appellate court initially made a 3 finding that the appellants were not properly identified at the scene of crime, later she:ch 9pged. herstance and found that the appellants were identified -·: , ... ,.· . at the scene of crime and-that;,the 2nd appellant's confession facilitated the . . recovery_._, o(the st:ble'ff .· ,· motor,cy~~~ .. __ .. ·. ,. . -. . 'Aggrieved;· the· appellanJs.,hav.e.,J)referred this appeal to the Court. . .: .._::,.,-; _ff':';'.~ ·Each appellant _fiJed his own Memorandum of Appeal with almost identical ·. grounds.' U~on· perusal of the Memoranda, we have found out that their complaints hinge onthree main grounds, namely: - "(1}. Tha~ (!]t;appellants were not properly identified at the scene ofaime. .. --···--:--- (?/ , That, the _cautioneli statements were wrongly acted upon to-coffvict the appellants. · (3). That,' they were not found in possession of the .--.·.-·,·-- stolen properties. " :· . . ·'· ~-- . -. ·-··:··. ~,-~_. . ,. ,. ·-· . ·: ·. -· ... · ..At the hec:ir;ing, the appeUants appeared in person. Ms. Martha Mwadenya, . ·. . .. . -· . - .,,,.;¥7=_!:-:;,::~---,.., ...:-~ . . learned Senior State Attor.ney, represented the respondent Republic. • •, ',;•: ,•,n;'_',:~ ,J · ·. ThEf app~llaqts opted·:~o:Jiiitially hear the submission of the learned .·. Seni6r Stat:e ......... -- ·•, . ,_ Att~(~~y;••f•,·~S. Mwadenya initially opposed the appeal. ·::•;. .. . . . . . .. How~ver, on probing by the Court, she conceded and supported the appeal '., .'_/:;):;;;:·/,:j ,,.·.-:,.,,,a -- on grounds' that/One; tfie"e~idence of visual identification of the appellants is. weak -~ becadse{Pwi·:a'icf . . . not state .- .- the nature of the light present at the . •'.. . . . scene which aided-him to properly identify the appellants while the· . therewas solar lighffhey.fell short of stating its intensity. Two, the available . . . ·... ,;.·!j_,~ .. ~ ........ ,~ .· . . .. , .: . ; :. ; ..... -~:·-.··:~--:.:i~~,,.- . . documentary evidence· is not sufficient to prove if the stolen· and found motor cycle belonged. to 'the"'·:complainant. Three, as the cautioned - · · · · -. •~·):•'.~~v::-':i·ir----··..,- statements were notread out after being admitted into the evidence, such . evidence 1as ·wror,gly acted°upon to convict the appellants . .·.. .:~--- '..-;~ ..r----•;'~.- The Court.. then .• $UD''motu raised another point, whether the appellants ' ~ere.convicted for the chargEt;:~O\Nhich they had pleaded as required by law. the learn~d · Senior State Attorney conceded by submitting that the · substituted charge was never read over to the appellants after the 6th accused was added, which was irregular. Since this is a point of law the lay appetlahts.had nothing.us~ful to add. When the-'actused: . ppear in court section 228(1) of the Criminal a 1 . . . : ; Procedure Act, .requires:•· "the substance of the charge shall be stated to the accused . . person ... b,y ..the court and he .shall be asked .::, :•, ' . .. , . •; . ., wheth~r.he admits or denies the truth of the charge." Section 228 of the Criminal Procedure Act, imposes a mandatory . fequiremer1tJ6-r a plea to be taken before proceeding with the hearing of 5 the case~ Failure to comply with that fundamental requirement of the law - -~-·-· · · ··· · ··. ::. ·.;:.:,:.~::;_·_::i'+-~~~1~~.rff~-~~~~ . . .··. makes.the'proceedings,ilf~gal:i~l1d,,renders the trial a nullity. (See NAOCHE . ._ • - .. . .. ., ..... : - .. ;,.. ,_,\;::·.-r,.~:.·,-;" - OLE ~EBIL~ ,V~JtEPUBLIC (1993} TLR and ATHUMANI MKWELA AND · 2 OTHERS . VS :;REPUBLI(j:,,:.<<;riminal Appeal No. 173 of 2010 .. . .. . . .. . ..· : >; . '-•·;"'!' {,;f•V · cunreported); , · . . , : /, . . ... ·- .... , ~- However,· under-· sectiorr 23~f"' of the Criminal Procedure Act, it is . '•.···•··;- permissible to amend the charge.JNhenever . , .·. ··•v,·-· .. the charge is amended, in ... , :.. .. ~,.:...- ·terms of section 234 (2) (a) of the Criminal Procedure Act, the court is duty bound to take new pleas on the amended charge. It is mandatory for a plea to a new hr'altered charge to be taken from an accused person, failure to do se> renders a triaLa RUllity. (See THUWAY AKONNAY VS. REPUBLIC . . . . (1987} TLR 92) ..· ..., . , .. In"'AK:BARAL(:P4Mlf VS. REPUBLIC (2) TLR 137 the Court ·,.,.- ........... , C9tegorically statJcfthat, the a:rraignment of an accused is not complete until he has pleaded. \Yb.ere no plea is taken the trial is a nullity. The omission is not curable.· ·. In the n,atter , . under scrutiny, the record shows that the appellants were ,. .:·' '. .. . . . .arraigned andtheir pleas taken on 28/11/2012. On 3/12/2012, the charge was substituted to add the 6th accused person. The charge was read over ,_ ...... ,. to him alone and he wa~ r~guired to plead. The appellants were not required ,-· .... 6 ................ to pleadtothe·new charge. This was irregular because in the light of section 234(2} (a) ofthe Criminal Procedure Act and the THUWAY AKONNAY's ·.. case, once a' chafge·-,s amended~··' pr altered, the new altered charge. must be -:. ,. l .. -::,-~-- ·, . - . ..,.. •· - read over totl]e accused persofi'or:persons, who must be required to plead i th~reto, failure Which .renders t~e .tr,J9Jg1_ nullity. In the premises, it VfOuld be pro.,.per for the Court to invoke revisional 2002), t()n_ulHfy all the proceedings in the courts below and order a retrial. . .. . . However, a retrial wrll not be ordered for the purpose of enabling the . prosecution to fill up gap? in iTii ~yidence·at the first trial. A retrial should be - . . . ·.. -· . made where interests 6f justice so require. (See FATEHALI MANJI VS . .· 1HE REPUBLIC (1966) EA, 341). We have nbW'to consider if there is sufficient evidence to warrant ordering . : ... .- .. . .· .:-.:-,~,.>·•·"·~ a retrial. , As the alleged robbery -incident occurred at 02.00hrs midnight and since "· some witnesses recounted th~t there was solar power, it is imperative to determine if the appeltahtf were properly identified at the scene of crime. In CHOKERA MW-ITA VS. REPUBLIC, Criminal Appeal No. 17 of 2010 (unreported) tbe Court was confronted with a similar issue; the Court held: ' ' . , ', ''i. .,,,.,.,·.... ' '>··/:'.'«'::.•i.•,·:•:·'~ 7 "In so far as the latern lamp is concerned, neither PW1 . nor PW3.spoke of the intensity of its light, thus leaving unattended the issue of likelihood of mistaken identity. " ····TheCo'urt furtherhefdi . ., .. . . •·. ''In st,ort, the law on visual identification is well settled. . ·. . .,. ·-- .. Before relying 011:1-rthe Court should not act on such evidence dn1ess all the possibilities ofmistaken identity are eliminated and that the Court is satisfied that the evidence before it is absolutely water tight .. " In ISSA S/O :MGARA.@f.~HUKA VS REPUBLIC, Criminal Appeal No. 37 ·. . ···. : . ; . ···•of 2005(un.reported5, the Court said that it is not sufficient for the witnesses to make b 9 re assertions that ''there was light". The Court held: ''It is our settledminds/we believe that it is not sufficient to make bare assertions that }l-,e;e ;;;;; J~hi"at the scene of the crime. It is common knowledge that lamps bfi th~yelectric bulbs, fluorescent tubes, hurricane lainps, wick lamps, lanterns etc. give out light with varying intensities. Definitely/Wghi from a wick lamp cannot be compared with light from a ··•·····- •· pressure lamp or fluorescent tube. Hence the overriding need to give in sufficient. d<;tails.. ·._·:.o.n.. ·......'the ' ; ,~-· intensity of the light and the size of the area · ·:: illuminated " .This requirement.was -. ,, 'U'nd~rscored by the Court in SAID CHALLY SCAN IA ;·, ... ' .. ,-.--:·: •·- \fS,R.EPUBL.tc;crimina(·Appeal No. 69 of 2005 (unreported). 8 ·:···' .. ·-··" In the present matter PWl, PW2 and PW7 were all at the scene of the crime. However, PWl who' claims- to h~ive identified the appellants, his evidence . ' :.·;. ,· , ...~-.. - ' did,nofstate tie nature of -light which aided him in the proper identification : •• •c•••: .:.:. •. ••j~ ..: ...:•••:--••: • ••• • •: '"; • •.. ~:•;,~•'' •'"." ··· qf the. appellants. PW2 and PW7, who all stated that there was solar light, fell short of s,t_ating the intensity of such light. In the ' light of.what the Court.. ,..:"·....said CHOKERA MWITA VS. . .,._ REPUBLIC (supra)·and ISSJfS/O_J\~GARA @ SHUKA VS REPUBLIC .--· ·.-.:_ ···"··.' ·••,!" . • • •.. ·•·· ·. . (supra) . . . in· the case at hand, s~nce the intensity of solar light was not ., --~=···- ...,.· .. explained, the. possibilities of mistaken identity were not eliminated. It was not enough for the witnesses to merely say that, they knew the appellants who are residents o{s~{~~;;~, ~ith~~t;tating as to how they managed to identify the appellarits at the scene of the crime. This is because it is trite law; even in''recognition cases, mistaken identity is possible. (See ISSA S/0 MGARA @ SHUl<A VS REPUBLIC (supra). ·· In a nutshell: th~ evidence of PWl, PW2 and PW7 on visual identification ofthe appellants does not rule out the possibilities of mistaken identity which is unsafe to base a conviction. ·. • The appellants' :co'mpfaTnt pQ,.the improper reliance of the cautioned •-· "statenierits~of-Oaniel Ngaravva.,(3 rd appellant). and Bakari Ibrahim (2 nd ., . , 9 appellant), is well founded. This was irregular as conceded by the learned ,,.,. ~--.,. - :. . ··· .. ,. ·-·~:_,_:·:.,.:'.""·.,..·:· ~~-; .·., ......~.:_::'"'::'·.~~/:;' __ .. - . Senior State Attorn,ey. --· --- . . ... ,.--·· It is s~t:tled··1awthat_wben~¥e.r: a confession statement is intended to •,G~q,~:•~ ,--. -.v••-···· , • ~- be introdUC(:!d iii evldence,. itmusf-oe initially cleared for admission and then actually admitted b~fore it can be read out. (See WALII ABDALLAH ~-. ··: -:. . • .;,, .. ,. •,<' ·KIBUTWA AND TWO OTHER$, ;~~>¥PUBLIC, Criminal Appeal No. 181 of 2006 (unreport~d}.IrYLACK s/o KILINGANI VS. REPUBLIC, Criminal Appeal No. 405 :of 20'15 (unreported), the Court categorically held that .-. ·•·· ..,..·,_- _-_ - failure to read the ·c:"c,~t~hts'btt:h; cautioned statements of accused persons . ·- . -·. .. -- -·: .. :,. ·.: ;. . - . -Ji;,;-/"'"'•'·- . after being admitted is fatal. This is•because although the record shows that, the statements wen:! admitted'~·w.itfJout objection, both the maker and their . . .. ' . -- :. :· .--.~·:-. -~-... : . : .''.•:;f;..--:·.::...... .:'p : cb-accuseds had inherent right to know the contents of those statements if · they were to eff~ctively . ._, cros$_examine on them. We have to emphasise this . -, ·'· - .. because the right to adversarial proceedings which is one of the elements .. ' •:":·r,·--··... - of fair headng within Article 13 (6) (a) of our Constitution means that each party to a trial . be . it criminal -.-;::··~. ' or civil; must in principle have the opportunity . - ,..,_ ~-"! - .• . 1·.-·--·-:·:. to have k.~9wledge of and comment on all evidence adduced or observations - filed or made With a view-to influencing the court's decision. At pages 14 and 20 of the record, the cautioned statements of the 2nd and3 rd appellants were improperly admitted as exhibits P4 and PS into the evidence. However, they were not read out to the appellants. . As th~ cautioned··:.~tatern~nts:.:·we~e -.· . . .· .. -- improperly admitted into the evidence. · ·,, .-_ .-. ~ .... ,._... before the courtt!i~Y were wrongly acted upon by both the trial and first . ,.. - . . ,."..• ~C~ ·•: . ., appellate courts to convict the appellants. We accordingly, discard them from the record. ··As to whetherthe doctrine:offecent possession was properly invoked to establish that the appellant~ were found with the stolen motor cycle, in JOSEPH MKUMBWA AND ANOTHER VS. REPUBLIC, Criminal Appeal No. ... 94 .,. ... of 2007 (Linrep~rted) ·-·· which was followed by the case of ALEX ~. -•- JOSEPH KASHARANKOR.O vs:' REPUBLIC, Criminal Appeal No. 156 of. 2013 the C9urt was of a considered view that: ._ .'.'For ti]~ doctringpf ,sj"""\ •' • l,•:' ', , • • • • r__ecent possession to apply as a basis of conviction it •• •,,,_';NO .. must be positively proved that, First that the property was found in .- •!' ·: __ ., .. , ··-~- ' . possession of the 'susf}~c/. Second, that the property is positively the property of the complainant Third, that it was recently stolen from the _complainant and lastly, that the stolen thing in the possession of the accused constitute~ the subject of the charge against the accused. It · mustbe· the one: that wa; stdleh'coFbbtained during the commission of the offence charged~~ ..... - 11 In the present case, PWl who claimed to be the owner to the stolen · motor cycle did not mention any peculiar mark which made him to identify that the stolen and found motor cycle belonged to him. Instead, he tendered the Registration Card which bears the name _of the owner to be one .GORDIAN RICHARD MG EMA and which identified it by CHASSIS NUMBER LBRSPJB 527901521 and the make is SUNLG motor cycle. PWl further produced tffe sale agreement ( exhibit P2) which not only failed to mention the CHASSIS NUMBER or engine number but also indicates that· PWl purchased the motor cycle from one ERNEST MGEMA. The inspection report (exhi~it_ P3) which was prepared, after the recovery of the motor cycle, does. not state the CHASSIS NUMBER .or engine number of the motor cycle which was recovered and concludes that it had forged plate number. Apart from the Chassis Number not being stated in the sale agreement and ' ... '.:·,..,... even·the charge sheet, the•·previous owner is not the one stated in the .,• ·:.:··;·;.:'"" Registration Card which cast doubt as to who was the previous owner and actually sold the motor cycle to PWl. Besides, ERNEST MGEMA was not ~ ~ . called as a witness to clear the doubt. With the said shortfalls _ap~L in the absence of any peculiar marks on .. , .. ·,:··--· t' the stolen motor _cycle and the distinct engine or CHASSIS NUMBERS 12 which were not in the sale agreement, the motor cycle inspection report and the charge sheet, the prosecution miserably failed to prove if the recovered motor cycle found in possession of the appellants belonged to PW1 and was one of the properties robbed. These discrepancies are grave and the doctrine of recent possession was wrongly invoked to convict the appellants. In view of the deficient prosecution evidence, we do not find it worthy to order a retrial. Having invoked our revisional powers we quash the convictions and set aside the sentences and order the immediate release of the appellants· from-the prison unless they are otherwise lawfully held. DATED at MWANZA this 28th day of October, 2016 . .-.•···' E.M.K. RUTAKANGWA JUSTICE OF APPEAL . . .. , S.A. MASSATI · · ··t"":: JUSTICE OF APPEAL S.E.A. MUGASHA . JUSTICE OF APPEAL I certify that this is a true copy of the original. ~ : P.~IKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL .- , .. , ... .,· . . .:,·- 13 ! .