kipara hamisi misagaa bigi vs republic 2018 tzca 494 10 may 2018

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CRIMINAL APPEAL NO. 191 OF 2016 (CORAM: MBAROUK, 3.A., MWARIJA, J.A. And MWANGESI, J.A.) KIPARA HAMISI MISAGAA @ B IG I............................................ APPELLANT VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Kaduri, J,) dated the 15th day of November, 2015 in Criminal Appeal No. 12 of 2015 JUDGM EN T OF THE COURT 2nd & 10th May, 2018 MBAROUK, J.A.: In the Resident Magistrate's Court of Dar es Salaam at Kisutu, the appellant was charged with the offence of armed robbery contrary to section 287A of the Penal Code Cap. 16 of the Laws as amended by Act No. 4 of 2004. The trial Court convicted the appellant and sentenced him to serve thirty (30) years imprisonment. His appeal before the High Court was dismissed in its entirety. Hence this second appeal has been preferred by the appellant. Briefly stated the facts which transpired before the trial”court and led him to be convicted are as follows:- i It was alleged by the prosecution that, the appellant was once a co-worker as a barber with Salum Suleiman (PW2) at Black Sea Salon before he was dismissed for failure to remit the money earned to the owner of the Salon. Even after his dismissal, the appellant frequently used to visit the Salon and sometimes he was provided with small amount of money by his former colleagues or given the opportunity to cut hair to customers to assist him to get money for his upkeep. In his testimony, E. 7846 D/C Ernest (PW1) testified that he was an investigator and arresting police officer in this case. He further testified that he used to know the appellant as a barber who worked in various hair cutting salons in the city, one of them being Black Sea Salon at Kinondoni area and his name is Hamisi Kipara @ Bigi. He added that, on 18-11-2007 at 9.00 am he was assigned a Police case file relating to this case. In the file, he noted the name of a person he knew and noted the phone number of the complainant who was also known to him. He then called the complainant and arranged for a place to meet him. When they met, the complainant narrated as to how the robbery occurred and how the appellant threatened to cut him with a knife. He said, on 6-12-2007 managed to arrest the appellant near his residence at his girlfriend's house. Upon interrogation, the appellant denied any involvement in the alleged crime. PW1 further added that in his follow-up during the period of investigation, on 20-1-2008 he managed to discover and recover the stolen phone which he found mortgaged for a loan of 300 US Dollars from one Gilbert. At the trial Court PW1 tendered the said cell phone. The appellant did not object for it to be tendered, hence admitted as exhibit PI. 2 On his part, PW2 test in ed thatpon 16-11-2007 at 8.30 pm, the appellant visitea the salon at the time when the former's cellphone was being charged. Suddenly, the appellant grabbed the cell phone which was being charged and when he was about to leave the salon, PW2 tried to stop him, but the appellant took a knife from his waist and threatened PW2 with it. PW2 managed to get hold of the appellant but was pushed to the ground and the appellant fled away. PW2 and other co-workers tried to chase after him, but they could not make it due to darkness and they were scared since the appellant was armed with knife. On the other hand, Pastory Sylvester (PW3) testified that, he works with Relief Security Guards Ltd. at Mwananyamala 'B' near Black Sea salon. He further testified that on 16-11-2007 at around 8.30 pm after he signed off from his duty he went at the said salon for his hair cut. While at the salon, he saw the appellant entering the salon, suddenly, he picked the cellphone which was there charging. He said, PW2 tried to stop the appellant from taking the handset but he was unable to hold him back, because he took out a knife from his waist and threatened PW2 and pushed him. The appellant then took to his heels leaving PW2 falling on the floor. PW3 and others tried to chase the appellant but failed to arrest him. He then did not make any follow up until he was called to testify at the trial Court. When cross-examined, PW3 said that, he could not have mistaken the appellant with someone else as he is familiar to him and had no reason to lie against him. He added that the appellant was commonly known as Mr. "BIGI". 3 Thereafter,-un 6-i2-k007 PW2 got information that the appellant was at a certain place, he therefore reported the matter at the police Station and they promptly responded by going to the place and surrounded the house. The appellant came out of the house holding a stick and maasai knife commonly known as "sime". He resisted the arrest and threatened to slash who ever tried to arrest him. The appellant ran and took refuge in a nearby toilet still holding the "sime" and stones ready to use them against whoever approached him. The police then ordered him to surrender and he complied. He was arrested and handcuffed. At the trial court, PW2 identified the cellphone tendered as Exhibit PI and produced its corresponding charger, cables, a CD and a Manual booklet with accessories. In his defence, the appellant categorically denied to have committed the offence charged against him. He said, he does not know PW2 or any other prosecution witnesses. He further said that, he does not remember anything on what transpired while he was in Dar es Salaam. He does not remember the actual date, he was at his girlfriend's place at Kinondoni having some drinks. At some time while drinking, the girl excused herself and went to a nearby toilet leaving behind her purse with the appellant. Suddenly four people appeared and arrested him. He said, those people who were accompanied by policemen were heavily armed with pangas, iron bars, sticks and knives. He was then arrested handcuffed and taken to the Oysterbay Police Station and then charged with armed robbery before the trial court. I;i this appeal, the appellant appeared in person, unrepresented, whereas, the respondent/Republic was represented by Mr. Credo Rugaju, the learned Senior State Attorney. Initially, on 22-11-2017 the appellant preferred seven grounds of appeal in his memorandum of appeal and later on 20-12-2017 he filed supplementary memorandum of appeal containing two grounds of appeal. The following are his first grounds of appeal which can be paraphrased as follows:- 1. That; the learned first appellate judge erred by holding that the appellant committed the offence while none o f the police officer(s) to whom PW2 first reported the crime to him was called to testify. 2. That, the learned first appellate judge grossly erred for his failure to find that one Gilbert who was named by PW1 was not called to testify as to how the appellant mortgaged a cell phone- Exh. PI, and connect him to the crime as charged. 3. That; the learned first appellate judge erred having not considered that the principles of chain o f custody were not adhered to when the cell phone - Exh. PI was seized. 4. That; the learned first appellate judge erred for having failed to consider that PW2 never identified his phone at the ponce station or yTve ns distinguishing features while testifying before identifying it before the court 5. That; the learned first appellate judge erred by holding that the appellant was the prime suspect where no evidence was led as to whether there were any efforts to find the appellant after the occurrence o f the alleged offence. 6. That; the learned first appellate judge erred having failed to consider that the evidence o f visual identification adduced by PW1 and PW3 was not credible and unreliable against the appellant when the crime was committed. 7. That, the learned first appellate judge erred by holding that the prosecution proved their case against the appellant beyond reasonable doubt. Whereas in his supplementary memorandum of appeal, the appellant preferrec the following grounds of complaints:- 1. That; the learned first appellate judge erred in law and in fact by upholding the conviction and sentence o f the appellant on in sufficient evidence. 2. That, the learned first appellate judge erred in law and fact by upholding conviction and sentence to the appellant for armed robbery. At the hearing of the appeal, when the appellant was offered his right to submit on his grounds of complaints, he opted to let the learned State Attorney to submit first and if the need arises, he will give his rejoinder later. On his part, the learned State Attorney from the outset indicated not to support the appeal. In his reply to the grounds of appeal, the learned State Attorney indicated to argue the appeal by starting to react to the 1st and 2nd grounds of appeal separately, then the 3rd and 4th grounds together, then the 5lh and 6th grounds together and finally the 7th and the two supplementary grounds of appeal together. In his reaction to the 1st ground of appeal, Mr. Rugaju contended that, this is a new ground of appeal, which was not raised and determined by the first appellate court, hence he urged us not to consider it in this second appellate court. As to the 2nd ground of appeal, Mr. Rugaju submitted that there was no necessity to call Gilbert, to testify, because the testimony of PW2 as a victim was sufficient to show how the offence of robbery was committed by the appellant. Apart from that, he said when PW1 testified as to how he found the cell phone Exh. PI with the appellant and when he wanted to tender it at the trial court, the appellant had no object for it to be tendered and failed to cross-examine PW1 as to how the cell phone was found with him. He therefore urged us to find that it was not important to call Gilbert to testify. He further urged us to find the 2nd ground of appeal devoid of merit. In his reaction to the 3rd and 4th grounds of appeal which he argued together, Mr. Rugaju contended that, the record clearly shows as to how PW2 identified his cell phone at the trial court and produced accessories like the charger, CD and its manual book which corresponded to his stolen cell phone. In addition to that, Mr. Rugaju said when the stolen cell phone was to be admitted, the appellant had no objection. He therefore urged as to find the two grounds to have no merit. As to the 5th and 6th grounds of appeal which were also argued together, the learned State Attorney submitted that after the incident the appellant ran away and was arrested later. As to the issue of credibility of PW1 and PW3 Mr. Rugaju contended that in this second appeal the Court cannot fault the two concurrent findings of the courts below as there are no misdirections or non-directions. He again urged us to find the 5th and 6th grounds of appeal devoid of merit. Finally arguing the 7th ground of appeal combined with the 1st and 2nd grounds in the supplementary memorandum of appeal, the learned State Attorney submitted that the case was proved beyond reasonable doubt from the evidence adduced by the prosecution witnesses. He added that, even the sentence was properly imposed according to law. He therefore urged us to find those grounds to have no merit. In his rejoinder, the appellant had nothing to add, he simply reiterated what he has stated in his grounds of appeal. Having examined the rival submissions from both sides, let us give our position in all the grounds of complaints preferred by the appellant. Starting with the first ground of appeal. We fully subscribe to the submissions made by the learned State Attorney that it is now settled that matters not raised in the first appellate court cannot 8 be raised"dTuhe second appellate court, in the case o rH a s sa ii Bundaia @ Swaga Vs. Republic, Criminal Appeal No. 385 of 2015 (unreported), this Court stated as follows:- "It is now settled that as a matter o f general principle this Court will only look into matters which came up in the lower court and were decided; not on matters which were not raised nor decided by neither the trial court nor the High Court on appeal." Also see Sadick Marwa Kisase Vs. Republic, Criminal Appeal No. 83 of 2012, Athumani Rashidi Vs. Republic, Criminal Appeal No. 264 of 2016, Mathias Robert Vs. Republic, Criminal Appeal No. 328 of 2016 (all unreported) to name a few. We fully agree with Mr. Rugaju, that raising a new ground of appeal in a second appeal which has not been raised and decided by the Court below is not proper. As the first ground of appeal in this appeal was not raised in the courts below, we are constrained to find this ground of appeal devoid of merit. As regards the second ground of appeal, we again agree with the learned State Attorney that the evidence adduced by PW2 who was the victim and that of PW3 was sufficient to prove the offence of armed robbery against the appellant without calling Gilbert. After all, when PW1 testified as to the issue of how the appellant mortgaged the said stolen cell phone to Gilbert, the record shows that the appellant failed to cross-examine PW1 on that issue. This Court in the case of Damian Ruhele Vs. Republic, Criminal Appeal No. 501 of 2007 (unreported) stated as follows:- "It is trite law that failure to cross-c,-7tmme a witness on an important matter ordinarily implies the acceptance o f the truth o f the witness." As in the instant case the record shows that the appellant failed to cross-examine PW1 on the issue he has raised that one Gilbert was not called to testify we take it that the appellant accepted that PW1 was a truthful witness. Hence, we find the second ground of appeal to have no merit. On grounds three and four of appeal we find that, after PW2 produced the accessories, manual book which corresponded to his cell phone and the trial court was satisfied that the accessories and other things tendered in connection to the cell phone, hence as a second appellate court we have no reason to fault the decision of the trial court. It is now settled that in a second appeal unless it is clearly shown that there has been a misapprehension of the evidence, a miscarriage of justice or violation of some principles of law, or there are obvious errors on the face of the record, or a misapprehension of the substance, nature and quality of the evidence resulting in unfair conviction, the second appellate court should not disturb the two concurrent finding of the courts below. See Mathias Robert (supra), Salum Mhando v. Republic [1993] TLR 170 and Patrick Abel vs. Republic, Criminal Appeal No. 55 of 2014 (unreported). For that reason, we have found no reason to disturb the findings of the two courts below and hence, we find the third and fourth grounds of appeal devoid of merit. 10 As regards the fifth and sixtlrgrouncl'; of appeal, the evidence clearly shower :3t the incident occurred on 16-11-2007 when PW2, his co-workers and PW3 chased the appellant and they were unable to apprehend him due to darkness they were scared, knowingly that the appellant had a knife, hence fled away and he was arrested later on 6-12-2007 by E. 7846 D/C Ernest (PW1). Hence that clearly shows after the appellant ran away, efforts to find him were made and that is why he was later arrested on 6-12-2007. As to whether the evidence of PW1 and PW3 was credible and reliable on the point of identification, firstly, PW2 and PW3 who were at the scene of crime knew the appellant very well before the incident as he was working at that salon, hence the issue of mistaken identity cannot arise. As to PW1, he was a mere investigator not present when the offence was committed, hence cannot be required to establish that he identified the appellant at the scene of crime. As to the issue of credibility of PW1 and PW3, we are of the considered opinion that there are no cogent reasons to disturb the decision of the courts below on the point of identification as PW2 and PW3 clearly testified to have known the appellant before as he was working with that salon. Hence, we find the fifth and sixth grounds of appeal to have not merit. Finally, as regards to ground seven combined with grounds one and two of the supplementary memorandum of appeal, we fully agree with the learned State Attorney that the case against the appellant was proved beyond reasonable doubt as per the li testimonies of PW2 aito-‘PW3. Vve also find that, as the offence agatnsrtne appc^nt was proved beyond reasonable doubt, the sentence imposed to him was proper according to law. For that reason, we find grounds number seven with the first and second grounds in the supplementary memorandum of appeal are devoid of merit too. All said and done, we dismiss the appeal in its entirety as it lacks merit. DATED at DAR ES SALAAM this 8th day of May, 2018. M.S. MBAROUK JUSTICE OF APPEAL A.G. MWARIJA JUSTICE OF APPEAL S.S. MWANGESI JUSTICE OF APPEAL I certify that this is a true copy of the original. EXjyfkwizu DEPUTY REGISTRAR COURT OF APPEAL 12