joseph leonard manyota vs republic 2017 tzca 260 11 august 2017

,IN THE COURT OF APPEAL. OF TANZANIA , AT TABORA (CORAM: LUANDA. 3.A.. MMILLA, 3.A. And MWARIJA, 3.A J CRIMINAL APPEAL NO. 485 OF 2015 JOSEPH LEONARD MANYOTA.........................................................APPELLANT VERSUS THE REPUBLIC......................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania atTabora) (Mqonya, 3.) Dated the 13th day of April, 2015 in DC Criminal Appeal No. 214 of 2 0 i 4 JUDGMENT OF THE COURT 4th & 14* August, 2017 MMILLA, JA.: The appellant, Joseph Leonard Manyota, was charged before the District Court of Kahama with the offence of armed robbery contrary to section 287A of the Penal Code Cap. 16 of the Revised Edition, 2002. Upon conviction, he was sentenced to serve 30 years imprisonment term. His first appeal to the High Court of Tanzania at Tabora was unsuccessful, hence this appeal to the Court which is against .both, conviction and sentence. The brief-background facts of the case are- simple and straight:» forward. PW2 Athuman Omary is a motorcycle rider living in Kahama Township. By July, 2012, he was employed by Upendo Yuda (PW1) to ride for business her motor cycle Reg. No. T. 679 BXK (the m/c). _ ...... On 19.7.2012 at about 11:00 pm, PW2 was at Masai Club at Kahama Township. Around that time, while in possession of the said m/c, the appellant approached him and asked to be sent to Nyakato area. They negotiated the fare, after which he sent him to Nyakato as requested. On arrival there, he was directed to stop at a certain house and to wait for the appellant who purported that he was going to ask his wife to accompany him to Masai Club. PW2 agreed. After about 15 minutes, the appellant returned alone. He told PW2 that his wife refused to come with him. He directed PW2 to send him back to Masai Club. Unfortunately, as PW2 prepared himself to head back to Masai club, suddenly, the appellant attacked him with an iron bar and a machete, the weapons which he had concealed in his clothes. PW2 raised an alarm, but the appellant grabbed the m/c and hurriedly disappeared with it. A short moment later, PW2 contacted PW1 by phone, informing her of the robbery incident. Shortly afterwards, the two reported the matter at Kagongwa police station in Kahama .District. On arrival at the police station, they were informed of the recovery of one m/c in appellant's possession, and were invited to have a look at it. On seeing it, PW1 and PW2 identified the same to be the property of PW1. However, since PW2 had sustained injuries in the course of the robbery perpetrated against him, he was given a PF3 and allowed to proceed to the hospital for treatment. Meanwhile, the police proceeded to prepare charges, and subsequently charged the appellant with armed robbery as it were. In his defence, the appellant did not deny that he was arrested in connection with the said m/c, but he maintained that it was a mistake because he was a client of PW4 Mganga Saidi, the person who was in possession of the m/c. He contended that he hired PW4 to take him to Bukene. He testified that they were arrested by a certain ''traffic officer" because PW4 had no licence, which is why they were taken to police station. He denied to have committed the alleged robbery, and asserted that the allegations against him were invented for no apparent reasons. As already pointed out, after being aggrieved by the conviction entered by the trial court, and the subsequent dismissal of his first appeal to the High Court, the appellant has come to this Court. He filed a memorandum of appeal which raised seven grounds.- The grounds .may - paraphrased as follows:- 1. That the trial court erred in convicting him believing that he was found in possession of the m/c (Exhibit PI), and the first appellate court wrongly upheld that finding, which justified the invocation of the doctrine of recent possession. 2. That he was not correctly identified by PW2, the only prosecution eye witness. 3. That both courts below erred in believing that PW3 was a credible witness. 4. That the trial court wrongly believed, and the first appellate court erred in upholding, the lower court's finding that the m/c which was tended in court was recovered in appellant's possession, and that it was wrongly received as evidence in court because the chain of custody of the m/c was not observed. 5. That the trial court wrongly based the appellant's conviction on the weaknesses of his defence; and the first appellate court erred in-as-much.'as. it.-did not fault that lower court's - decision on that ground. 6. That the trial court wrongly ignored to consider the appellant's defence, and the first appellate court erred in not faulting the lower court on that ground. 7. That the first appellate court erred in not faulting the trial court for having found that the prosecution proved the case against the appellant beyond reasonable doubts while it was not. Before us the appellant appeared in person and was not represented, whereas the respondent Republic enjoyed the services of Mr. Iddi Mgeni, learned State Attorney. At the commencement of hearing, the appellant elected for the Republic to submit first. Mr. Iddi Mgeni signified at the outset that he was opposing the appeal. His submission was short but well focused. He proposed to argue together the first and fourth grounds of appeal. To begin with, Mr. Mgeni submitted that the evidence of PW3 No. D 9267 CpI. Hamad and PW4 Mganga Saidi —clearly established how the appellant was arrested while in.possession of the m/c which was stolen during the robbery, at the place at which the police had laid the trap. He contended that because he was found in possession of that m/c only the second day after the robbery, the doctrine of recent possession was properly invoked. Mr. Mgeni illustrated that PW3, who was then an acting OCS, received information from the chairman of the group of Motorcycle riders of Kagongwa area one Ally, that there was a stranger (the appellant) who approached him and asked him to accept a contract to ride the appellant's m/c to Mwamala area at a fee of T.shs 60,000/=. However, Ally told PW3 that he was suspicious because the appellant had no ready cash to pay him; hence that perhaps it was not a genuine offer. Mr. Mgeni added that upon that information, PW3 directed Ally to accept the offer, assuring him that he was going to intercept them at Isagehe area. Since he was pressed with other matters, Ally assigned the job to PW4 and disclosed to him his conversation with PW3. PW4 took up the job and carried the appellant and purported to head to Mwamala area. Meanwhile, PW3 went ahead and laid a police trap at Isagehe area. He subsequently intercepted PW4 and ,the-appellant .at that area and managed to apprehend the culprit and seized Exhibit PI. Mr. Mgeni submitted similarly that PW1, the owner of the said m/c, identified the m/c to be her property. He also relied on the evidence of PW2, the person in whose hands the said m/c was robbed. This witness too identified the m/c as the property which was stolen during the incident. On the basis of this evidence, Mr. Mgeni submitted that there was strong evidence to prove that the stolen property belonged ..to PW1, and therefore that the doctrine of recent possession was properly invoked. He cited to us the case of Makoye Samwel @ Kashinje and 4 Others v. Republic, Criminal Appeal No. 32 of 2014, CAT (unreported), a case in which the situation under which the doctrine of recent possession may be invoked were re-stated. Mr. Mgeni admitted that though it was improper for the said m/c to have been tendered in court by PW1 instead of PW3 who had apprehended it, or PW5 No. D 7268 D/SSgt Severine who was the investigator of this case on account that it was not shown how it got into her possession. He was quick to add however, that the appellant clearly saw it at the time <--- PWl-tendered -the same in court but did not object The learned State Attorney argued that the appellant did not cross examine PW1 when he was given the opportunity to do so. He therefore pressed the court to dismiss the first and fourth grounds. Coming to the second ground touching on the question of identification, Mr. Mgeni submitted that the appellant was correctly identified for three reasons; one that, he was not a stranger to PW2 who had testified in court that the day of the incident was the third time to be hired by the appellant; two that at the time he approached him for hire he identified him with the aid of electricity light; and three that, he was with the appellant for a considerable time, right from Masai Club where he hired him up to Nyakato area, the place where he had to wait him for about 15 minutes. Mr. Mgeni added that once again, the appellant did not cross examine this witness on these facts. He referred us to the case of Emmanuel Sang'uda @ Sulukuka and Another v. Republic, Criminal Appeal No. 422B of 2013, CAT (unreported). For these reasons, he urged the Court to dismiss this ground. As regards the complaint in the third ground alleging that the evidence of PW3 was not credible, Mr. Mgeni argued that the evidence of that 8 witness was direct, evidence/ credible and reliable. Likewise, ha.urged.the -. Court to dismiss this ground. Mr. Mgeni proceeded to address the fifth ground which allege that the trial court wrongly based the appellant's conviction on the weaknesses of his defence; hence that the first appellate court erred in as much as it did not fault that lower court's decision on the point. He submitted that the two lower courts analysed the evidence in the case as a whole, and that it was not true that any miscarriage of justice was occasioned. On the seventh ground, Mr. Mgeni submitted that the prosecution proved the case against the appellant beyond reasonable doubt. He made reference to evidence on how the appellant hired PW2 and subsequently robbed him of the m/c; how he was arrested by PW3 with that property; and also how PW1 identified it to be her property. He asked the Court to find as well that this ground is devoid of merit and consequently dismiss the appeal. On his part, the appellant was very brief. He submitted that both lower courts ought to have found that PW4 was the culprit behind the alleged robbery because he was the ono who was found in possession of the m/c. He urged the Court to allow the appeal. Having carefully gone through the paraphrased grounds of appeal and the submissions of both, Mr. Mgeni and the appellant, we desire to begin the discussion with the second ground of appeal touching on the question of identification. It is beyond doubt that the charged incident in our present case took place at night time, around 11:00 pm. Also, it is inevitable that the appellant's conviction was partly founded on the visual evidence of PW2, the victim of that crime and the only prosecution's eye witness. The law is settled that evidence of visual identification is of the weakest kind and almost unreliable. As such, this type of evidence should only be relied upon when all possibilities of mistaken identity are eliminated and the court is satisfied that the evidence before it is absolutely watertight. This observation was made in the case of Waziri Amani v. Republic (1980) T.L.R. 250 at page 252. Apart from that observation, the Court restated the principles to be taken into account when deliberating whether or not to rely on such evidence. It was stated that before relying on such evidence, the courts should put into .consideration such factors as thn time the witness had the accused under observation; the distance at which the witness had the accused under observation; if there was any light, then the source and intensity of such light; and also whether the witness knew the accused before. See also the cases of Raymond Francis v. Republic [1994] T.L.R. 100, Augusto Mahiyo v. Republic, [1993] T.L.R. Of course, we are aware that the stated guidelines were never meant to be exhaustive or conclusive. At the end of it all, therefore, each case has to be decided on its own set of facts. In the instant case, PW2 was the only eye witness. He was emphatic that he correctly identified the appellant. Both lower courts were satisfied that he competently and correctly identified the appellant, and they appraised him as a credible witness. We hasten to say that we agree with both lower courts that PW2 competently and correctly identified the appellant as the person who perpetrated the charged crime for the following reasons: one that, the appellant was not a stranger to PW2 because the date on which he turned against PW2 was the third time to have been hired by the appellant; two that, he was with the appellant for a considerable time, starting at Masai li . Club where the appellant,.hired.him ,up.,to.Nyakato.area, at which.he,, remembered to have waited for him for about 15 minutes. Three that, after he was hired at Masai Club, PW2 took the appellant to Nyakato area where he was made wait for him outside his house for about 15 minutes; four that, there was electricity light around that area with the aid of which he clearly saw properly and recognized him; and five that, the appellant did not dispute all these facts by cross examining PW2. On the basis of that, we are satisfied that PW2 correctly identified the appellant. Consequently, the second ground of appeal lacks merit, we therefore dismiss it. Next for discussion are the first and fourth grounds. To begin with, we agree with Mr. Mgeni that the manner in which the m/c which is central in this case was recovered connected the appellant with the charged offence. In reaching the finding that the appellant was proven to have been found in possession of that m/c, the lower courts relied on the evidence of PW3 and PW4, which they said was cogent, credible and reliable. With great respect, we agree with them. »-As already pointed out, PW3 was linked to this incident by. one Ally, the chairman of the group of Motorcycle riders of Kagongwa area who told him about the person who had asked him to send his motor cycle to Mwamala area at a fee, the suspicions he held against the stranger, hence the report he made to him. Upon that information, PW3 informed Ally that he was going to lay a trap at Isagehe area and asked him to go ahead. As already pointed out, the said Ally assigned the job to PW4 Mganga Said who, with proper instruction from Ally, took up the job. It was then that PW4 picked the appellant land left for Mwamala area. As it were, PW3 intercepted PW4 and the appellant at Isagehe area. PW3 testified in court that the appellant attempted to run away, but they gave a chase and arrested him, along with the m/c. We would like to seize this opportunity to address the point that contrary to the appellant's claims, like the lower courts found, PW3 was a credible witness. We are saying so because his was direct evidence and was straight forward. The appellant did not advance any hints why PW3 could have decided to fabricate a case against a stranger. The evidence of PW3 was corroborated in material particulars by that of PW4. This witness had testified that with instruction from Ally, he met the 13 appellant-who -had the m/c. After being handed ..over,,the:m/c.,by the,,, appellant, they left for Mwamala area. He added that they were intercepted by PW3 at Isagehe area, and that the appellant attempted to run away but they managed to apprehend him. As far as apprehension of the appellant and recovery of Exhibit PI is concerned, we find and hold that the evidence of these two witnesses was very clear, strong and credible, therefore reliable. We have no scintilla of doubt that the appellant was found in possession of the said m/c. We wish to add here that on the basis of the evidence of PW1 and PW2, the lower courts found that the m/c which was seized from the appellant was not his property, particularly so when it was apparent that he did not claim ownership. To the contrary, it was found to be the property of PW1 because she had advanced sufficient evidence to prove that it was her property. As already covered above, on arrival at the police station, she identified the m/c to be her property. During her testimony in court, she tendered a receipt which was issued by Godfrey Baraka Mponzi from whom she bought the m/c (Exhibit P3), the Registration card which was still in the name of the said Godfrey Baraka Mponzi (Exhibit P2), and the m/c Itself (Exhibit-P3)i 'Her-evidence on the point was corroborated by PW2, from whom the said m/c was stolen Mr. Mgeni submitted as well that given the fact that the appellant was found in possession of the m/c, he had no doubt that the doctrine of recent possession was properly applied in this case. With great respect, we do not share that view for reasons we endeavor to assign. We wish to point out that the doctrine of recent possession refers to possession of property that has been recently stolen. The doctrine is simply . part of the principles of circumstantial evidence. It applies only to offences of handling stolen goods and is relevant to proving the mens rea of the offence. See the cases of R. v. Abramovich [1914 -15] All ER 204 and Makoye Samwel @ Kashinje and 4 Others v. Republic (supra). In this latter case, while relying on the previous case of Mwita Wambura v. Republic, Criminal Appeal No. 56 Of 1992, the Court stated that:- "1. The stolen property must be found with the suspect; 2. The stolen property must be positively identified to be that o f the complainant; *'■3. -The property' must be recently stolen-from the complainant and; 4. The property stolen must constitute the subject o f the . _ charge." In the instant case, there is direct evidence from PW2 that the appellant was the one who robbed the m/c from him. There is also direct evidence from PW3.and PW4 that following the police trap which.was. staged .at Isagehe, the stolen m/c was seized from the appellant. We are firm that the evidence of PW2, PW3 and PW4 relating to recovery of the m/c was not circumstantial evidence, hence that the doctrine of recent possession was improperly invoked. That notwithstanding however, on the strength of the direct evidence pointed out above, we find that the first ground is devoid of merit. We accordingly dismiss it. There was a complaint as well that it was improper for PW1 to have tendered the m/c as evidence in court instead of either PW3 or PW5. Linked to this is the complaint that because it was not clear how the said motor vehicle fell in the hands of PW1 after it was taken to police by PW3 upon solrliuj II Irom llw oppHlant, the I.id lli.it Its custody •dubiously shitted to I'VVI on),ills lh.il Iho chain ol custody ol th.it exhibit was broken. It was contended that p/lm.i fade, It ought not to have been received as evidence In couit. Alter carefully considering the appellant's concern, we once again agree with Mr. Mgeni that the said m/c was rightly received as evidence in court. Wo will explain. In the first place, we go along with Mr. Mgeni's submission that apart from the fact that the appellant did not object to its being tendered in court as evidence; he also did not cross examine this witness on the point. That Implied that he had no complaint whatsoever. As we said in the case of Emmanuel Sang'udn @ Sulukukn and Another v. Republic (supra), failure to cross examine at all or on a particular point is tantamount to an acceptance of the evidence as accurate, unless testimony of the witness is Incredible or there has been clear prior notice of intention to impeach the relevant testimony - See also the case of Hussein Bakari Kadogoo v. Republic, Criminal Appeal No. 54 of 2006, CAT (unreported). V«e similarly-wish to point out that -though PW1 was the owner of the .. m/c, and thus competent to tender it as evidence in court, we abhor the manner the m/c was handed back to her. There ought to have been a transparent way on how that handing over was done, an aspect which would be in spirit with the demands of the doctrine of chain of custody, that is, the chronological documentation or paper trail, showing the paper trail custody, control, transfer, analysis, and disposition of evidence. The reason why evidence of this nature must be handled in a scrupulously careful manner is to prevent possibilities of tempering with it, possibilities of contaminating it, or fraudulently planted evidence. This is in the interests of justice. It is important to point out however, that notwithstanding what we have just stated, it is not every time that when the chain of custody is broken, then the relevant item cannot be produced and accepted by the court as evidence, regardless of its nature. We are certain that this cannot be the cases say, where the potential evidence is not in the danger of being destroyed, or polluted, and/or in any way tempered with. Where the circumstances may reasonably show the absence of such dangers, the court can safely receive such evidence despite the fact that the chain of cystody->may have been broken. Of course, this.rWill -depend on the prevailing circumstances in every particular case. In the present case, the appellant was there when by mistake though, PW1 tendered it in court. He did not object. Surely, had PW1 tendered a different m/c, the appellant would have objected, but he did not. Besides, when he was given chance to cross examine PW1, the record shows that he declined. ... For these reasons, we are satisfied that though the.chain. of .custody o f . the m/c was broken, no injustice was occasioned to the appellant. In any case this piece of evidence is not material to the case under consideration, we may disregard it. Thus, the first and fourth grounds of appeal are dismissed. We now come to the third ground in which the appellant contests the credibility of PW3. Luckily, we have briefly covered this in the course of discussing the first and fourth grounds. We would like to expand a little bit that apart from his allegation that he stopped them at the place where the trap was laid so that he could talk to PW4 in relation to traffic matters, the •-appellant did not shade much.light on why ha held the notion that PW3 was not a credible witness. Like we said earlier, we are confident, like the lower courts found, that “ PW3 was a credible witness. We are saying so because there is no point why he could have decided to fabricate a case against a person he did not know. Apart from that, we have already shown how Ally contacted him, the person who assigned the job to PW4; how he intercepted the appellant and PW4 at Isagehe; and how the appellant reacted upon being stopped. He said the appellant attempted to run away but they gave a chase and apprehended him. We pose here to say that usually, an innocent person is not expected to run away when a police officer stops him. The act of running away by appellant, who had posed as a passenger, implied that he had a guilty conscious mind. We have also covered above that the evidence of PW3 was perfectly corroborated by that of PW4, another stranger to the appellant who had nothing to gain in concocting a case against the appellant. We are mindful that the evidence of PW3 and PW4 was free of any contradictions. Thus, the allegation that PW3 was not a credible witness is baseless. The third ground is likewise dismissed. • >We'now-begin'to discuss the fifth and sixth.grounds..together.for convenience sake. While the fifth ground allege that his conviction was based on the weaknesses of his defence, and blames the first appellate court for failure to fault the trial court's decision on that basis, the sixth ground alleges that his defence was ignored. Certainly these grounds are interrelated. We have carefully gone through the judgments of both lower courts; we noted that the mistakes both lower courts did was their failure to directly mention that they were considering his defence or rather that very little was done to reflect that they considered it. Given such a situation, the question becomes; this being a second appeal, what is the duty of the Court? It is opportune to restate here that on a second appeal, the Court is only entitled to deal with questions of law. However, this approach rests on the premise that the findings of facts are based on a correct appreciation of the evidence. If both courts completely misapprehend the substance, nature, and quality of evidence, resulting in an unfair conviction, this Court must in the interests of justice, interfere. See the case of Snlum Muhando v.- Republic [1993] T.L.R. 170 where it-was-* held: "Where there are misdirections and non-directions on the evidence, a court o f second appeal is entitled to look at the relevant evidence and make its own findings o f fact." See also the case of The Director of Public Prosecutions v. Jaffari Mfaume Kawawa (1981) T.L.R. 149 In our present case, the complaint that the appellant's defence was not considered by both courts below warrants our interference. We are therefore set to analyze the appellant's defence and weigh the same against that of the prosecution witnesses in relation to matter at hand. The appellant's defence was very short. He testified that he was wrongly linked to this offence since he was PW4's client, the person who was riding the subject m/c., and that PW4 had asked him to pay T.shs 10,000/= being the fare from Kagongwa to Mwamala. He had testified that he was shocked to find that he was associated with the offence of robbery by a traffic police (PW3) who stopped them. He contended that the PW3 and his colleagues fabricated -this--case against him for no apparent reasons. As already seen, the appellant's argument that he was a mere passenger of PW4 does not appeal when the evidence of PW3 and PW4 is weighed against his defence. To repeat what we have said, PW3 had testified that upon information he received from Ally about a person who intended to hire someone to ride his m/c to Mwamala on account of the fact that his leg sustained injuries; and basing on the suspicions Ally had confided; he directed that they should cooperate with him. He told him that he was going to arrange a police trap at Isagehe. Since Ally had other matters to attend, he assigned the job to PW4 with all the details regarding the instructions of PW3. At the end, he intercepted them. Though the appellant attempted to run, they gave a chase and arrested him. His evidence was clearly corroborated by that of PW4. On the face of such evidence, we are satisfied that his defence was untenable. We are unable to reach a different conclusion. Thus the fifth and sixth grounds lack merit. We accordingly dismiss them. Last bul not least is'the seventh ground which alleges generally that- the prosecution did not prove the case against him. We wish to say that for all what we have discussed herein, particularly the analysis we have endeavored to do in respect of the evidence of all the prosecution witnesses, and the reasons why we uphold such evidence, we have done enough to render this ground as well baseless. Consequently, we dismiss it. For reasons we have assigned, we find that the appeal as a whole is devoid of merit. Consequently, we dismiss it in its entirety. DATED at TABORA this 11th day of August, 2017. B. M. LUANDA JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL A. G. MWARIJA JUSTICE OF APPEAL I certify that this is a true copy of the original. SENIOR DEPUTY REGISTRAR COURT OF APPEAL