20180612 TZCA Dar es Salaam

. •,• . ~· .,; . .. ... IN THE COURT OF APPEAL OF TANZANIA ii. AT DAR ES SALAAM (CORAM: MMILLA, J.A., MWARIJA, J.A., And MWANGESI, J.A.) CRIMINAL APPEAL NO. 251 OF 2012 SHIJA MASUNGA BUNDALA _________________ ,:_ ______________ APPELLANT VERSUS THE.OPP ________________ ..; ___________ _, _________ :_ _______________ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Karua, J.) · dated the 5 th day of December, 2011 in High Court Criminal Appeal No. 75 of 2011 JUDGMENT OF THE COURT 6 th & 13th June, 2018 MWANGESI, J.A.: The appellant herein stood arraigned in the District court of Kilombero at Ifakara for the offerice of armed robbery contrary t.o the provisions of section 287 A of the Penal Code Cap. 16 R.E 2002 (the Code). It was the case for the prosecution that, on the 12th -day of August, 2008 at or about 01: 30 -hours at Namawala village within Kilombero District in the Region of Morogoro, the accused stole cash money TZs 500,000/=, two mobile. phones one make Nokia 1600 valued at TZs 1 _,- 100,-000/=, and the other one _make Samsung SGH E 350 valued at TZs . 200,000/=, all total valued at TZs 800;000/= and immediately before such stealing,. he fired a.. gun in order to obtain the property of one Juma Mshana. When the charged was read over to the appellant in the trial court, he protested his innocence. rn· order to· establish the guilt of the appellant, the prosecution paraded three witnesses and tendered one exhibit. On his part in defence, the appellant relied on his own testimony which was not supplemented by any other testimony. At the end of the day, upon evaluating the evidence placed before him, the trial magistrate was ---cor:ivinced-beyor:id-r:easor:ia.ble-doubt-tbat,-the-pr:osecution-had-rnar:iaged_to-_ __ establish its case. To that end, the appellant was convicted of the charged offence and sentenced to -the statutory term of imprisonment of thirty years. The attempt by the appellant to challenge the findings of the trial· court in the High Court of Tanzania at Dar es Salaam District Registry, was not successful and hence this appeal. The brief facts of the case leading to the impugned decision as could be gleaned from· the testimonies of Juma Mshana (PW1) arid Geas Kisinde 2 (PW2), · is that; the two were neighbours residing in the village of Namawala, where Juma Mshana was dealing with a business of transport as well as selling mobile phone vouchers. On his part, Geas Kisinde owned I a shop. On the 12th day of August, 2008 at night time, the premises of the two were invaded by armed bandits one after the other, starting with the premises, of Geas Kasinde, and took from them money and some other valuables. The two victims of the incident, claimed to have identified the appellant among the bandits who invaded them. While Juma Mshana claimed to have identified him with the aid of light from a torch which was in the possession of the bandit, Geas Kisinde identified him through light from solar system, which had been fixed at his premises. The incident was reported to the Police and investigation was commenced. After the elapse of one month or so, the appellant was arrested by policemen. When the victims were called at the Police Station and asked about him, they identified him and as a result, he was charged with the offence of armed robbery. Even though the appellant resisted the· charge preferred against him as aforesaid, the trial magistrate purchased the testimonies of the two victims that, they had managed to establish that, they. indeed identified him as their assailant. The finding of the trial 3 court, was upheld by the first appellate Court and hence, this second appeal to the Court. r•;• In his memor'£ndum of appeal, the appellant has raised seven - grounds of appeal. Nonetheless, all grounds boil down to mainly four that is, firstly, that the first appellate Court erred in law in upholding the conviction and sentence of the trial court, which was founded on incredible evidence of visual identification from PW1 and PW2. Secondly, that the first appellate Court erred .in law in faHing to note that, the appellant was not accorded the right to express his views in regard to the admission of a . . mobile phone -alleged to have been recovered at his premises. Thirdly, --tl:lat-tl:le-,-fir-st-appe-llate-CGurt~e-r-r-ed-in-law-in-faHing-to-note-that,-a-searcb-- purported to have been conducted at the appellant's premises, was made without compliance with the law. And fourthly, that the first appellate Court ·erred ih law in upholding the· conviction and sentence of the appellant in. a case which was not proved to the standard required by faw. · On the date when t_he appeal was called on for hearing, the appellant appeared in person legally unrepresented_ and hence fended for himself whereas, the respondent/Republic had the services of Ms Jenipher Masue 4 learned State Attorney. The appellant opted to let the learned State Attorney, respond to his grounds of appeal first, reserving his right to rejoin if need would arise. On her part, the learned State Attorney before engaging to respond to the grounds of appeal which have been raised by the appellant in his memorandum of appeal, she-had a concern to address us in respect of the . charge which was preferred ·against the appellant. She submitted that, the particulars of the offence did not state against whom the threat was directed. She argued that; such defect was serious, and could not be salvaged by the provisions of section 388 of the Criminal Procedure Act, ---"---Gaf.h-2Q-~the-GP-A~----- - - - - , - - - ~ - - - - - - - - - - - - - Placing reliance on the holding in the case of Mussa Mwaikunda Vs. Republic [2006] TLR 387, the learned State Attorney submitted that, as a result of the defect on the charge as aforesaid, the appellant was not put in a position to know well the nature of the offence which he was facing, so as to prepare well in defending himself. In the circumstances, she concluded that, there -was no fair trial to the appellant. In that regard, the Court was asked to invoke its revisional powers under the provisions of 5 . section 4 (2) of the Appellate Jurisdiction Act, cap. 141 R:E 2002 -{the AJA); to nullify the proceedings of both the first appellate Court and the trial court as well as the judgments, and set aside the sentence which was meted to the appellant. As to the way forward, if the Court would accept her prayer for nullification of the proceedings of the lower courts, the learned State ·Attorney submitted that, she was hesitant to ask for an order of retrial because the evidence which was relied upon by the prosecution to establish the guilt of the appellant was weak. She pointed out the two types of evidence that was used by the trial court to hold the appellant ----1Gul13a bl e-that-i-s,the-evider-tGe-ef-visl-Ja 1-identific;ation-of-the-appella At-at-tbe~- scene of the incident, and. the other one of a mobile phone belonging to one of the victims of the incident, which was said to have been recovered at tne premises of the appellant. Starting with the evidence of the first type, the learned State Attorney submitted that the visual identification of the appellant alleged to have been made by both· PWl and PW2 at the scene of crime was doubtful. Starting with PWl, ·:5he argued that the same claimed to have / 6 . ..... ._ identified the appellant through the aid of light from a torch which was in the possession of the assailants. She doubted such identification arguing that, light from ·a torch is unreliable in view of the holding in James Chilonji Vs. the Republic, Criminal Appeal No. 101 of 2003 (unreported). She further submitted that, it was inconceivable for the witness (PW1) to identify the appellant, who • was holding a torch di_rected to him (the witness). With regard to the identification of the appellant alleged to have been made by PW2, who told the court that he was aided by light from solar system which had been fixed at his premises, the learned State Attorney --~suomitt@d-tt:iat,-tt:ie-said-witness-Aev@r:-st-ated-aAytbing-regarding-tbe---- intensity of the said light, the distance from where he was to where the appellant was at the material time, as well as the time which the witness spent with the appellant. She· argued that such factors were crucial to be known by the court in line with the holding in the landmark case of Waziri Amani Vs. Republic [1980] TLR 250. The learned State Attorney did as well not hesitate, to agree with the . complaint raised by the appellant in his grounds of appeal to the effect 7 that,. during the tendering of a mobile phone alleged to have been recovered at his premises as exhibit in court, he was not accorded a chance to either resist its admission or concede. Additionally, she went on to argue, the recovery of the said mobile phone which was admitted in evidence as exhibit Pl, from the premises of the appellant, was made without compliance with the requirement of law. It is a requirement under the provisions of section 38 (3) of the CPA that, any search and seizure of exhibit from a suspect has to be done before witnesses and documented to that effect. In the instant matter there was nothing of the like tendered as evidence in court. The Court was referred to the decision in the case of Paulo Maduka and Four Others Vs. the Republic, Criminal Appeal No. 110 of 2007 (unreported). Ms Masue concluded her submission by urging us not to order a retrial, but instead, set the appellant at liberty. The appellant on ·his part had nothing substantial to tell the Court in rejoinder for the obvious reason that, the whole submission made by the· learned State Attorney was in his favour. The issue which stands for determination by the Court in the light of what has been submitted by the learned State Attorney above is whether, 8 the charge which was preferred against the appellant was proper. Our take off in answering this issue is· the provision of section 132 of the CPA, which stipulates as to,-what should be contained in a charge. In its own wordsthe provision reads: ·''Every charge of information shall contain and shall be sufficient if it contains, a statement of the specific offence or . offences with which the accused person is chargect together with. such particulars as may be necessary for giving reasonable information as to the nature of -------the-offence-charged..-//__________________ [Emphasis supplied] In order to .be in a better position of appreciating the submissions made by the learned State :.Attorney, we hereby reproduce the charge which was put to the appellant ipsissima verba thus: "Offence section and law: armed robbery contrary to section 287 (A) of the Penal Code cap 16 R.E 2002. 9 Particulars of offence/ that Shija s/o Masunga Bunda/a charged on Jzh day of August, 2008 at or about 01: 30 Hours at Namwala village within . . . .. . . Kilombero District in Morogoro Region did steal cash money 7Zs 50~ 000/=✓ two mobile phone Nokia type 1600 valued at 7Zs 100/000/- and other . Sumsung type SGH E 350 valued 7Zs 20~000/ / all total ·valued 7Zs 80~000/-. Immediately before such stealing did fire a gun in order to obtain the property ofJuma Mshana. Signed -------~----- prosecutor" What we had to ask ourselves, is whether the charge against the appellant as reproduced above, was in conformity with the stipulation under the provisions of section 132 of the CPA. We found no difficulty in . - answering the question in the negative. As pointed out by the learned State Attorney, the particulars of the offence did not state the victim to whom the threats in effecting the commission of armed robbery was directed. Such information was very important to enable the appellant to properly prepare his defence. 10 The importance of the charge to disclose the information as to whom the threats in the commission of the offence of armed robbery were directed, was discussed in the case of Kashima Mnadi Versus Republic, Criminal Appeal No. 78 of 2011, where the Court held that: ''Strictly speaking/ for a charge of any kind of robbery to be proper✓ it must contain or indicate actual personal violence or threat to a person on whom robbery was committed. Robbery as an offence/ therefore/ cannot be committed without the use of actual violence or threat to the person targeted to be robbed. So/ the particulars of the offence of robbery ·must not only contain the violence_ or threat but ----.als0-tf-Je-per-s0n-0n-wh0m-the-aGtual-vi0lenG&-0F-thr-&at-was-din~ct&d..-"--- .See also: Mussa Mwaikunda Versus Republic (supra) as well as Jonathan George Njamas Versus Republic, Criminal Appeal No. 421 of 2016 (unreported). In view of what was stated in the above holdings, there is no gainsaying to hold that, the charge that was preferred against the · appellant in the instant matter, failed to meet the standard required and thereby, rendering it to be defective. In the same breath as it was in the 11 above named decisions, we hold that, the appellant was not fairly tried. Invoking the revisional powers bestowed on us under the provisions of section· 4 (2) of the AJA, we_ hereby nullify the proceedings of the first appellate Court and that of the trial court as well as the judgment of both Courts, and set aside the sentence of imprisonment of thirty years, which · - was meted to the appellant. The subsequent question that crops up, is as to what should be the way forward. Ordinarily, once the proceedings of the lower court have been nullified by a superior court, an order of retrial would follow. Nevertheless,· as earlier hinted above, -in the instant matter, the learn~d , ---State---Atter-Aey---was--'-reluaant-t0-ask---fer--an-0r-Eler-0f-r-etr-ia-l-f.Gr-tt'.:l@---r:easor:t---- - that, the available evidence which is to be relied upon in establishing the guilt of the appellant to the charged offence of armed robbery, even if . . . . . . . . . .. . - retrial will be conducted is weak. We had _time to go through the proceedings of the trial court wherein, as stated by the learned State Attorney, two types of evidence were relied upon by the trial -court in finding the appellant guilty of the charged offence. The first type of evidence was based on the visual 12 identification which came from PW1 and PW2, whereas the second type of evidence was of a mobile phone which was admitted in court as exhibit Pl, which was alleged to have been recovered at the premises of the appellant. Beginning with the evidence of visual identification, there was no - dispute from either side during trial of the appellant that, the offence of armed robbery was committed during midnight.· According to the testimony of Juma Mshana (PW1), he. managed to identify the appellant at that particular time with the aid -of light which canie from a torch. He told the court further that, the said torch was in the possession of the bandit. ------Besi0es-the-witAess--f-aHin§-t04ell-tne-Eeur-t:-tne-iAteAsity-0f-s1.-:1Gn-ligl:tt,-we got problem in comprehending as to how a person to whom the flash light is directed, could easily identify the person holding the torch behind the source of the flash light. On his part, PW2 claimed to have identified the assailant with the aid of light sourced from solar system. As it was for his colleague (PW1), this witness also failed to inform the court as regards the intensity of the said light, the time he spent with the bandit, and the distance between him and 13 the bandit. We think it was pertinent for both ·witnesses to sufficiently establish those factors due to the frailty ·of the evidence of visual identification, as it was observed by the Court in Luzio Sichone and Another, Criminal Appeal No. 131 of 2010 (unreported), where it stated that: ''On the value of the visual identification evidence, the law is equally well settled First of all this type of evidence is of the weakest character and most unreliable and should be acted cautiously only when the Court-is ~atisfied that, it isabsolutely watertight and that, all possibilities of mistaken identity have been eliminated, even if it is evidence of recognition as was the case here. '' The Court also had an occasion to comment on the evidence of visual · . ide_ntifi~tion in the _case of ~a_ymond _Francis Versus Republic [1994] TLR 100, where it observed that: ''It is elementary that in a criminal case whose determination depends essentially on identification, - evidence on condition favouring a correct identification is of utmost importance. " 14 See also: Matola · Kajuni and Two .Others Versus Republic, Consolidated Criminal Appeals No. 145, 146 and 147 of 2011 and Aburaham Daniel Versus Republic, Criminal Appeal No. 6w of 2007 (both unreported). From what we have observed on the evidence of visual identification which was received from the prosecution witne·sses in the case under discussion, and· guided by the holdings in the cases cited above, we fully subscribe to the submission by the learned State Attorney that, the evidence of visual identification relied upon by the two lower courts ·in the ---ease-at-naAd-was-insHffiGient-aAd-di0-R0t-jt:Jsti-f-y-GGRviGtion-of-tl:l9-appellaAt..---- Apart from the evidence of visual identification, in upholding the finding of the trial court, the first Appellate Court held that, the identification which was made by PW1 and PW2 to the appellant was further corroborated by the mobile phone (exhibit Pl) which was found at the premises of the appellant. On our part, we are reluctant to subscribe to such views of the learned first appellate Judge for the reason that, there was no tangible evidence to satisfactorily establish the linkage between 15 exhibit Pl and the appellant. The contention by the prosecution that, it was· recovered from the premises of the appellant, in view of the stipulation of section 38 (3) of the CPA, was doubtful. The provision reads that: . . '~ 38 (3) - where anything is seized in pursuance of the powers conferred by subsection (1), the officer seizing the thing shall issue a receipt acknowledging the seizure · of the thing, bearing the signature of the occupier of the premises or his near relative or other person for the time being in possession. or control of the . . premises, and the signature of witnesses to the search if any. // [Empnasis s u p p l i e d j - - - - - - - - - - - - If in the case at· hand there was indeed a search· conducted at the premises of the appellant and the alleged mobile phone got recovered, . ~. . . then, there was no compliance with the mandatory requirement under section 38 (3) of the CPA. Things as they stood, any contention· by the appellant that, the alleged •mobile phone was planted at his premises could not be underestimated. To that end, we hold that, the mobile phone ( exhibit Pl) was as well of no any assistance in establishing the guilt of the appellant to the charged offence. 16 ., As a result of what has been traversed above, apparently, even if we_ · were to issue an order of retrial to the appellant, it would only give the prosecution a chante to fill up the gaps already pointed out, at the detriment of the appellant. The erstwhile Court of Appeal for East Africa in the case of Fatehali Manji Versus Republic [1966] EA 341, did state the position under which an order of retrial can be made, when it. stated that: ''In general a retrial will be ordered only when the original trial was illegal or defective. It will not be ordered where the conviction is set aside because of insufficiency• evidence or for purpose of enabling the-prosecation-to-fill-up-gaps-in-fts-evidei-Jee~at-the--------- first trial. Even where a conviction is vitiated by a mistake of the trial court from which the prosecution is not to blame; it does not necessarily -follow that a .retrial shall be ordered; each case must depend on its own facts and circumstances, and an order of retrial should only be made where the interest ofjustice require. ✓, In line with the guidance expressed above, we hold that the interest of justice in the matter at hand demands that, there has to be no order of 17 n ., .' retrial, because that may end up prejudicing the appellant as there is a possibility for the prosecution to fill up the gaps in its case as aforesaid. We therefore conclude by ordering that, the appellant be set at liberty forthwith unless he is otherwise lawfully held for some other grounds. Order accordingly. DATED atDAR ES SALAAM-this 12th day of June, 2018. B. M. MMILLA JUSTICE OF APPEAL A. G. MWARIJA JUSTICE OF APPEAL ------------s~s~MWANGE-SI----------- JUSTICE OF APPEAL I certify that this is a true copy of the original. B.A~O DEPUTY REGISTRAR . COURT OF APPEAL 18