20170822 TZCA Mwanza

(► . '.i): "'"i IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MlASIRI. l.A., LILA, l.A., And NDIKA, l.A.) CRIMINAL APPEAL NO. 322 OF 2014 . · ST 1. SAMWEL DICKSON ....... 111• ■••················································ 1 APPELLANT 2. MSAFIRI ATIENDE ABOUR ................................................ 2ND APPELLANT VERSUS THE REPUBLIC ........................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Mwanza) (De-Mello, l.) Dated 20th day of August, 2014 in Criminal Appeal No. 65 of 2012 JUDGMENT OF THE COURT 14th & 24 th August, 2017 MJASIRI, J.A.: <. An offence of armed robbery was alleged to have been committed by Samwel Dickson and Msafiri Atiende Abour, the appellants herein. The basis of their conviction is that they were identified by the prosecution witnesses who knew them well. According to the'--two courts below the identification of the two appellants was watertight. It was the prosecution case that on the 26 th day of April, 2006 at Rukuba Island within the rural District of Musoma in Mara Region, the appellants did steal one Suzuki boat engine, HP 15 valued at Tanzanian 1 Shillings One Million Five Hundred Thousand (Shs. 1,500,000/=) and a fuel line with a value of Tanzanian Shillings Sixty Thousand (Shs. 60,000/=) and that they used violence in order to obtain the said property by attacking PWl and cutting him with a machete. The incident took place in Lake Victoria, about 150 metres from the island. Aloyce Mkondani (PWl) and Magongwa Nchagwa (PW7) had laid down their fishing nets and when they were about to pull up the nets, a group of four (4) people appeared. They were in a rowing boat and they approached their boat. They started a conversation before they all jumped on their boat. According to PWl and PW7, there was moonlight, and they could clearly identify the first and second appellants who were among the four people. PW3, Dea Makunja testified that after hearing a cry for help from the lake, he went out to find out what was happening and while at the lakeshore, he saw the two appellants who were in the company of two other people, he did not know. They told him that they heard a cry for help and were going to the scene. PW3 also testified that the moon was bright. The appellants denied the charge. The prosecution called seven (7) witnesses, two of them being the victims who were robbed, that is PWl 2 and PW7. According to the prosecution witnesses, the two appellants were well known to them~. They were fishermen who lived in a nearby fishing village. The appellants are challenging a conviction of armed robbery contrary to section 287A of the Penal Code (Cap 16 R.E. 2002). Their appeal to the High Court was unsuccessful save for the substitution of their sentences from thirty five (35) years and ten (10) years to thirty (30) years with an addition of corporal punishment, that is twelve (12) strokes of the cane, hence this second appeal. The trial magistrate sentenced them to 35 years imprisonment for armed robbery and 10 years imprisonment for assault. They were also ordered to pay compensation. Each appellant presented a seven - point memorandum of appeal, with similar arguments. A joint supplementary memorandum of appeal was also presented by the appellants. The grounds of appeal are summarized as follows:- 1. The charge against the appellants was not proved as the owner of the boat engine was not called as a witness. 2. The particulars of the charge sheet varied with the testimony of witnesses. 3 3. Exhibit P2, (the medical report) was wrongly admitted in Court as the medical doctor was not called to testify. 4. The two Courts below failed to evaluate the evidence. 5. The appellants were not properly identified. The following supplementary grounds were presented by the appellant. 1. That the Preliminary Hearing (PH) was not enumerated. 2. The appellant was not properly addressed by the trial court before presenting their defence, which was contrary to the law. 3. There was non-compliance with the law for failure to call the owner of the engine. At the hearing of the appeal, the appellants appeared in person and were unrepresented and the respondent Republic had the services of Ms. Judith Nyaki, learned Senior State Attorney. The appellants opted for the Senior State Attorney to submit first. Ms. Nyaki supported the conviction and submitted that the appellants' appeal had no basis. 4 ,... In relation to the first and second supplementary grounds of appeal, she argued that these are new grounds of appeal which were not raised in the first appeal in the High Court. According to her, because of the failure· to do so, the appellants cannot now come up with new grounds. On the third supplementary ground, she stated that this was similar to ground No. 1 of the appellant's main grounds of appeal. In relation to the argument raised on the first ground of appeal, that the owner of the boat engine was not called to testify, Ms. Nyaki's short answer to this was that PWl and PW7 were the ones who were in possession of the engine, and were the ones who were robbed. The appellants used force in order to obtain the engine. PWl was attacked with a machete, and was injured on the head, neck and left arm and the culprits left with the boat engine and the fuel line. With regard to ground No. 2, on the variation of the charge sheet with the evidence, she submitted that there were no variations at all. The witnesses made reference to Suzuki engine. The trial magistrate corrected the error on the original record by substituting Yamaha with Suzuki. The trial magistrate made reference to Suzuki HP 15, throughout the judgment. 5 The reference to Yamaha on the record was a mere typing error. PW7 who was with PW1 at the scene also made reference to Suzuki HP 15. In relation to ground No. 3, on the wrong admission of the PF.3 (Exhibit P.2), that is, the medical· report relating to the injuries suffered by PW1, the learned Senior State Attorney readily conceded that the requirements under Section 240 (3) of the Criminal Procedure Act, Cap 20 R.E. 2002 (the CPA), were are not met, as the appellants were not advised on their rights to have a doctor called. In relation to grounds No. 4, 6 and 7 Ms. Nyaki submitted that the basis of the appellants' conviction was the fact that the appellants were identified by fellow fishermen who knew them well and who mentioned their names. According to PW1 and PW7, they could clearly see the appellants because the moon was bright. They also had a conversation with the appellants and could recognize their voices. PW3, also testified that he met the two appellants on the date of the incident and there was moonlight. According to him, they were familiar to him and not strangers. He even knew where they worked. She made reference to the case of Anuary Nungu and Another vs Republic, Criminal Appeal No. 109 of 2006 (unreported). 6 On ground No. 5, Ms. Nyaki submitted that the appellants were named by the witnesses at the earliest opportunity. The fact that Samwel Mwita, who was among the people who came to assist PWl and PW7 when they called out for help was not called to testify did not in any way affect the testimonies of PWl and PW7. She brought to the attention of the Court section 143 of the Evidence Act [Cap. 6 R.E. 2002] (the Evidence Act), which provides that no number of witnesses is required to be called by the prosecution. In reply, the first appellant reiterated on the contradictions in relation to the type of engine stolen. He also complained of the injustice suffered for failure by the. prosecution to call Samwel Mwita. In relation to the testimony of PW3, the first appellant stated that PW3 met them as good citizens and not robbers. Both appellants argued that PWl and PW7 were accosted by four (4) people and not them, and that they were not involved in the robbery. The second appellant also complained that Amina Juma, the lady they were said to be working for at the fishing camp, was not called as a witness. He also made reference to Samwel Mwita, who was supposed to be an important witness and who needed to testify. He also argued that 7 failure to call the owner of the engine, signified that the case was not proved. The second appellant also submitted that there were contradictions in respect of the date of the incident. After a careful analysis of the evidence on record, and the submissions made by counsel and the appellants, it is evident from the record that the basis of the conviction of the two appellants was the evidence of identification. The crucial issues for consideration in this appeal are as follows:- 1. Whether or not the appellants were properly identified. 2. Whether or not the conviction of the appellants was against the weight of the evidence on record. We shall commence with the first ground of appeal raised by the appellants, that is, that the charge against the appellants was not proved as the owner of the engine was not called as a witness. It is clear from the record that the parties who were out fishing on a boat were PWl and PW7. The boat engine was taken from them. The boat engine and the fuel line were in their custody. The issue to be determined is whether or not the prosecution failed to call essential witnesses. The law is clear that there is 8 no particular number of witnesses required for a proof of any fact. (Section 143 of the Evidence Act). In Azizi Abdalla vs Republic (1991) TLR 71 at page 72, it was stated thus:- "The general and well know rule is that the prosecutor is- under a prima facie duty to call those witnesses who, from their connection with transaction in question, are able to testify material facts~ If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution. // · However, the prosecution has discretion to call the witnesses they require for the proof of any fact. In Yohanis Msigwa vs Republic (1990) TLR 148, it was stated as follows:- •~s provided under section 143 of the Evidence Act, no particular number of witnesses is required for 9 the proof of any fact. What is important is the witness's opportunity to see what he/she claimed to have seen, and his/her credibility. " See Separatus Theonest @ Alex vs Republic, Criminal Appeal No. 138 of 2005; Lubelejea Mavina and Another vs Republic, Criminal Appeal No. 172 of 2006 (both unreported) and Adel Muhammed el Dabbah vs Attorney General for Palestine (1944) A.C. 156. In Adel Muhammed (supra) it was states thus:- "It must be taken as established law that the prosecution enjoys discretion whether to call any witness they require to attend, but that discretion is not unfettered. The first principle which limits that discretion is that it must be exercised to promote a fair trial. " In the circumstances of this case, failure to call the alleged owner of the engine, Samwel Mwita and Amina Juma did not affect the prosecution case because the witnesses who testified sufficiently proved the charge against the appellants. 10 In relation to ground No. 2 on the variance of the charge sheet with the testimony of the witnesses, we would like to state that there is no such variance. This complaint is related to the model of the stolen engine. In the typed record of appeal the boat engine has sometimes been referred to as Yamaha instead of Suzuki. However, as stated by the learned Senior State Attorney upon perusal of the original record, the trial Magistrate made a correction in the proceedings replacing Yamaha with Suzuki Engine, and throughout the judgment, reference is made to Suzuki and not Yamaha Engine. The typed proceedings do not reflect this correction. The other variance relates to the date of the incident. Some witnesses indicated that the incident took place on April 26, 2006 and some indicated that it was April 25, 2006. It is clearly indicated in the record that the incident occurred on April 25, 2006 after midnight. The contradictions were therefore minor and did not go to the root of the matter. See Dickson Elia Nsamba Shapwata and Another vs Republic, Criminal Appeal No. 92 of 2007 (unreported). In relation to ground No. 3, on the non-compliance with section 240 of the CPA, that is, failure to advise the appellants of their rights to have the Doctor called, this complaint needs not detain us. Ms. Nyaki readily 11 conceded to the non-compliance, hence the medical report, Exhibit P2 is expunged from the record. On the grounds of appeal raised by the appellants in the supplementary memorandum of appeal, we entirely agree with the learned Senior. State Attorney that these grounds were not raised in the High Court and cannot be raised now. As ground No. 2 raises a legal issue, we would like to address it. Looking at page 32 of the record, the options selected by the appellants clearly indicate that they were advised of their rights by the trial magistrate. Both appellants stated as follows:- ''I will defend myself under oath and I have no witnesses to call. " However, the direction to the accused persons in terms of section 231 (1) of the CPA before presenting their defence should be clearly recorded, in order to avoid any complaints of non-compliance. We will now proceed to address grounds Nos. 4 and 5 of appeal which are pivotal to the determination and decision of this appeal. We shall commence with the testimonies of PWl and PW7. According to them both appellants were well known to them. - They were 12 • fellow fishermen. They worked in a nearby fishing camp. The identification of the appellants was also by way of recognition. PWl and PW7 were consistent in their testimonies. They saw a canoe approaching them. It stopped near their boat, a conversation occurred, and subsequently four men (including the appellants) jumped into their boat. PWl was cut with a machete. While PWl was being attacked PW7 sneaked away to hide under the boat. PWl stated with clarity that he saw the first and second appellants jump on the boat together with the two unknown people. While the two of them were busy attacking PWl with a machete, the others were busy removing the engine. The appellants were not strangers to PWl and PW7 and, they could clearly see them as there was moonlight. The identification of the appellants by PWl and PW7 was identification by recognition which in law has been found to be more reliable than the identification of a mere stranger, as was held by the Court of Appeal of Kenya in the case of Anjonane vs Republic (1998) KLR 60. The law is settled that the evidence of visual identification should only be relied upon when all possibilities of mistaken identity are eliminated and that the Court is satisfied that the evidence before it is absolutely 13 • watertight. These principles are as set out in the celebrated case of Waziri Amani vs Republic (1980) TLR 250 and other subsequent decisions of this Court. See for instance the case of Anthony Kigodi vs Republic, Criminal Appeal No. 94 of 2005 (unreported); Raymond Francis vs Republic (1994) TLR 100; Shamir John vs Republic, Criminal Appeal No. 202 of 2001 (unreported) and Republic vs Turnbull (1976) 3 All ER 54. The issue of identification is very crucial. We need to establish whether the conditions were favourable for adequate and correct identification. See - Saidi Chally Scania vs Republic, Criminal Appeal No. 69 of 2005 (unreported). The conditions of identification in this case were favourable. Both PWl and PW7 knew the appellants well, they were fellow fishermen, and lived in nearby fishing villages. They even knew where the appellants worked. There was moonlight, on the night of the incident, this position was also given by PW2 and PW3. We are of the considered view that the standards set down in the case of Waziri Amani vs Republic (supra) have been met. See also Raymond Francis vs Republic and Shamir John vs Republic (supra) 14 . In Raymond Francis (supra) this Court stated as follows:- "It is elementary that in a criminal case where determination depends essentially on identification evidence on conditions favouring a correct identification is of the utmost importance. " In the instant case the suspects were named at the earliest opportunity possible. PW3, PW4, PWS and PW6 all testified that PWl and PW 7 named the appellants. In Thomas Mlambivu vs Republic, Criminal Appeal No. 134 of 2009 (unreported) the Court stated as follows:- ''Indeec/, the ability to name the appellant at the early opportunity was an all-important assurance of her reliability. " In Marwa Wangiti and Another vs Republic, Criminal Appeal No. 6 of 1995 (unreported) it was stated thus:- "The ability of a witness to name a suspect at the earliest opportunity is an all-important assurance of his reliability, in the same way as unexplained delay 15 • or complete failure to do so should put a prudent court to enquiry. .. " We are therefore, satisfied that the prosecution established to the standards required under the law that is was the appellants who attacked PWl and PW7 and who stole the boat engine as well as the fuel unit. We are of the considered view that the first appellate court properly evaluated the evidence and the appellants were convicted on the weight of the evidence on record. In relation to the sentence, we would wish to state that while the first appellate court rightly substituted the illegal sentence of thirty five (35) and ten (10) years imprisonment respectively, to thirty (30) years imprisonment since the appellants were only charged with the offence of armed robbery and not assault, it was not proper for the first appellate court to impose corporal punishment. Section 287A of the CPA provides for a mandatory minimum sentence of thirty (30) years imprisonment with or without corporal punishment. The appellants should therefore have been given a chance to address the Court on that, before corporal punishment was meted out. Section 373 (1) of the CPA provides that:- 16 ''In the case of any proceedings in a subordinate coure the record of which has been called for or which has been reported for orders or which otherwise comes to its knowledge/ the High Court may:- (a) In the case of conviction exercise any of its powers conferred on it as a court of appeal by section 366/ 368 and 369 and may enhance the sentence. (b) (2) no order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence... " In the instant case the appellant was not given an opportunity to be heard by the High Court before imposing corporal punishment. Corporal punishment is not mandatory under section 287A of the CPA. We therefore by the powers vested in us under section 4 (2) of the Appellate Jurisdiction Act Cap 141, R.E. 2002, hereby set aside the sentence relating to corporal punishment. 17 • In the result, save for the revised sentence relating to corporal punishment, we find no merit in the appeal and we hereby dismiss it. Order accordingly. DATED at 'MWANZA this 22 nd day of August, 2017. S. MJASIRI JUSTICE OF APPEAL S. A. LILA JUSTICE OF APPEAL G.A.M. NDIKA JUSTICE OF APPEAL I certify that this is a true copy of the original. ~ B. R. NYAKI DEPUTY REGISTRAR COURT OF APPEAL 18