20190923 TZHC Mbeya

I I I IN THE UNlTED REPUBLIC OF TANZAN(A JUDICIAR~ .. 1N THE HIGH coURr !F TANZANIA (DISTRICT REGISTRY OF MB·EY A) AT MBEYlA . .. . . I, . CRIMINAL APPEAL NO. 2 OF 2019 (Af,peal fiom the q~.eisfo'h of the DiStnci/court ot Mtmrali i1 ~ujewp, Jl©fi, DANI EL JOHN ,@i MWAKIP-ESILE;.•.••..... •.•.• ..I. ,. . . . .,. . . .·/ . . . . A. w. Kimaze; RM ,n Crirhinol. Case No. -4Sof :20'1:7} APl'ELLANT ··. ... . . . . . . . . . . . . . . . . ,. r, ,. . . . . . .,. THE ·REPU B'l·1c· 1 . VERSUS t I ,..'[',.,,R''E·""o··.•.o·N'T SP N · E JUDG.EM!ENT Date ·of HeDfin,g :,.29107129.19 Q9fe •Of Judgement.: 23/09/2019 MO.NG.ELLA, J. . •. . I •. . .. Th$· Appellant helein was charged, cohvicted an:c! sentenced to 30 yecm,: iroprisohfnertf Ofl the o{le,nbe of atmef robbery c:ontror} to seclioh 287A o'f the Penal Gode, Gap 16 R.E: 2002 a_s amended by Act No .. 3 ·of 2011. ,At ,tp~ trial 'it Wds t:flle{ae.d' that on l2lfl Febn.Jory 20·1 7 dt. ·ab;out 16:bOhg~JrS. ct .I , MkwajU,ni pre,~ wifhTfi.~ Mbardli D~st~ict ir..Mbeya regio~, 1he' ~ppelldt1J d.kf stedl T.shs:. 5:50.,0.00./.,. from one Fd1zC1 DanfOld and at onr.nmed1,ately be.fore w i/cf]mediat~~Y after the time of ~teali~g did threat' her ~Y us1ng a_J:. :?1ff.e: in ord.er to ob-to1n the stolen alf)ount I ~ Page:1 of .i4 PWl, who is the victim, testified that on the fateful date she was at her home wheh she received a phone call which was unhamed, but with a n1Jmber ending with 69. After inquiring who the caller was she got a reply that it was one Dan. The said Dan told her that there were sacks of paddy for sale at Mangululu Rujewa area. Since PW 1 was a businesswoman trading in rice she agreed to meet the said Dan. She then boarded a motor vehicle and dropped at Mtambani area whereby she called back the number. The Appellant then appeared. PWl testified further that she knew the Appellant even before the incident. She said that the Appellant and her used to see each other at Ubaruku area. She said that she never gave the Appellant her number, but the Appellant must have found it in different posters she had put in different places announcing that she buys paddy. After meeting the Appellant she was told by him to go to a place where he kept the sacks of paddy. Th~ accuseo took her to BM Guest house and told her that that is where the seller of paddy is going to meet them. They entered the reception of the guest house which was an open room, however, after like three minutes of waiting for the purported seller the Appellant pickeo a knife and hold PW 1 at her chest while directing the knife towards her. The Appellant then told PW 1 to surrender the money and robbed her T.shs. 550,000/- which was kept in her bra. PWl raised an alarm and the guest attendant appeared. The Appellant however, managed to escape through the back door. In arguing the appeal the Appellant fended himself while the Respondent was represented by Ms. Rosemary Mgeni, learned State A tto~~ the Page 2 of 14 '' petition of appeal, the Appellant raised nine grounds of appeal. I shall deal with them seriatim as they have been presented. On the 1st ground, the Appellant stated that the trial Magistrate erred in law and fact in convicting the Appellant without taking into consideration that the prosecution failed completely to prove the charge beyond reasonable doubt. Responding to this ground, Ms. Mgeni submitted that the evidence of PW 1 was enough to prove the offence beyond re.asonable doubt as PWl explained clearly what happened. She clearly explained that the Appellant robbed her T.shs. 550,000/-. The Appellant used a knife to threaten her and she had to surrender the money which was kept in her bra. She explained that she shouted and the servant of BM guest house came but failed to help her due to the weapon the Appeliant was holding. The said servant had to call for help, but the Appellant escaped through the back door. The Appellant knew the Appellant from before the event and the event occurred at l 6hours. In support of her arguments Ms. Mgeni cited the case of Said Ally Mfinda v. The Republic, Criminal Appeal No. 55 of 2012 (unreported) whereby the CAT while. citing the case of Samson Matiga v. Republic, Criminal Appeal No. 205 of 2007 (unreported) stated: .,What this means, to put it simply, is that the prosecution evidence must be so strong as to leave no doubt to the criminal liability of an accused person. Such evidence must irresistibly point to the accused person, and not any other1 as the one who committed the offence." Ms. Mgeni concluded by saying that basing on the evidence on record, it is apparent that the offence was proved beyond reasonable ~/4· Page 3 of 14 I have gone through the trial Court records and found that the prosecution mounted five witnesses. Among these PW1 was the victim of the offence and she explained what exactly happened to her on the material date. PW2 and PW3 are also material witnesses as they entered the open room and found the Appellant holding a knit e and PW2 raised an alarm. PW2 also testified to have received the Appellant at the guest house whereby he wcs looking for a room but ended being allowed to use the open room used as reception because the rooms were all occupied. PW4 and PW5 testified to have seen the Appellant and PWl together heading to BM Guest house before the occurrence of the event. The evidence of PW 4 and PW 5 corroborates that of PW l , PW2 and PW3 to the effect that the Appellant was with PWl on that material day. All these five witnesses testified to have known the Appellant even before the offence was committed. The trial Court is always in a better place to assess the credibility of witnesses than an appellate court. An appellate court cannot interfere with the assessment of credibility of witnesses unless where there are compelling circumstances to do so, such as where there are irregularities in recording the evidence or where there are material contradictions among the witnesses' testimonies. The CAT in Alex Wilfred v. The Republic, Criminal Appeal No. 44 of 2015 ruled that: "The trial court's finding as to the credibility of witnesses is usually binding on an appeal court unless there are circum.stances on an appeal court on the record whicjl,, cqjl for a re-assessment of their credibility." (_~tc. Page 4 of 14 From the records of the trial Court on the case at hand, I do not see any compelling factor to interfere with the findings of the trial Court in the credibility of the witnesses. (See also: Omari Ahmed v. Republic ( 1983) TLR 52) All witnesses, like I said testified to have known the Appellant from before, they all gave a similar account of what they witnessed. There was no material discrepancy on what they testified. Taking this observation into account, it is my finding that the case was proved beyond reasonable doubt. This ground of appeal is therefore dismissed. On the 2nd ground the Appellant stated that the trial Magistrate erred in law and fact in convicting the Appellant relying on the evidence of PWl, PW2, PW3, PW4 and PWS who stated that they saw and identified the Appellant at the scene of crime, but they failed to even mention the type of clothes the Appellant wore on that fateful date. Responding to this ground, Ms. Mgeni prayed to reiterate what she stated in ground one, but she added that the witnesses explained that they knew the Appellant even before the event happened and he was also seen running even after the event ..She argued that the issue of identifying clothes is baseless and has no weight in exonerating the Appellant from liability. She cited the case of Jackson Kihili Ruhinda & Another v. The Republic, Criminal Appeal No. 139 of 2007 (unreported) whereby the CAT at page 9 citing the case of Juma Shaban Juma v. The Republic, Criminal Appeal No. 168 of 2004 (unreported) discussed issues of identification and stated that giving details on the offender is relevant where the victim ~~~e offender for the first time. Page 5 of 14 I agree with Ms. Mgeni's position that where the witnesses are familiar to the offender then details on the description of the offender become irrelevant, particularly where the offence occurred during day time. All Witnesses gave testimony that they knew the Appellant before the event and the offence occurred during day time between 15 and 16 hour.s. The testimony of PWl is very crucial as she spent longer time with the Appellant than the rest of the witnesses. Taking all these facts into consideration I do not see any chances of having a mistaken identity because the evidence adduced by the witnesses was evidence by recognition. Apart from the cases cited by the learned State Attorney, there are also a number of cases from the CAT offering guidance on the issue of describing the offender where the witnesses happen to be familiar to the offender before the commission of the offence. See: Jumapili Ms.yete vs. Republic, Criminal Appeal no. ·1 10 of 2014 and Nebson Tete vs. The Republic, Criminal Appeal no. 419 of 2013. In Nebson Tete the CAT at page 5 stated: "The situation is different where the evidence of identification is by recognition, which has been held by courts to be more reliable than an identification of a stranger, but caution should as well be observed in that, when the witness is purporting to have recognized someone known from bfaforjj; mistakes cannot be ruled out." ~~ Page 6 of14 . ' Like I $'tdte~: earlier, PWl &pent quite some time with the: AppeHa.r:it befote she was robbed andthe motter occurred during day fh:hJ, PW4 :saw. dhd tolked to the' .Appellant and PW'l when.they were het:i.dfhg . to BM go.est' ho;use. These factors was·h away the chances of mistokeh identity by the . .. . . . . .. . .. . ,· . . . .. . I • . On the 3rd ground the Appellc:1nt state:d thot the trial /v\agistr:at~ 'ert:E~o Jh law and in fa<;;t i.r::i convicting the Appellant relying on tre :e\i.idence: of PW 1 ond .. PW·5 without ·taking into :consideration fhdtl the evidence cor1tradicted each other. He stated that While PWl said' that she knows. the AppeilaM by the ndrne of Dani, PWS .stated that W:herl' h·fr-ond his feJJows we.nt _t© the front side door they ~et PWl crying "~h'iefthiefi'·wnen they interro:gpled her, sh~e rnention·ed iiDan Mw.akipesiler" :lnsJ~t;l.<f ,of • • I "Ddniel ,Mwaldp)$si_let; Re'spomslihg to .this ~ro.und; Ms .. MQenl argueo that whc:(t th~rNP.p.~Jlqnl omve.s- hos: no b,nse. ff is.;so minor ,and do.es,no·t g;o to the root of the case. lhe name wds· mentibn'.ed in its ,$hotf f<!)Jm. $J'fe: ,qJ:t:~ct the case of Chrizant .John v:~ The Republic,- Grimindl Appeql N;o'., :ar~ :p:f20l5; In. which - . . . . .. .· . . I . . ...... ·it Wds- ·ttdfe.d that-ih d.etermining the contradictions, the. ,co:url hasi to, o~.te,rrriine if the contradiction is minor and goers ·tel fhe root of t.he rnatter. ' ,. The court 90n only give weight to contradictions in te.s-ti mony lf fhe .said 1 c0ntradiclions :go to the root of the rnc:itter. In Mohame_d Said .Mtttulci v. Republic :(l:99.5) 1LR.no. 3 the CAT he.Id: :. j I "',\,Where fbe t¢sfi_r:trony by th€: witnessf:s. c.odtains inc.onsis·tenci es cmd ciontrodlctiorrs~ the c·ourt has tr 1 dufr fo o.ddre:$s the ihconsistencie:s and try -to; re!o1v1: them wh~re, possible. f/se the court hets .fo ·d4ci_~~ -Page 7 ·of 14 whether the inconsistencies and contradictions are only minor or whether they go to the root of the matter" In the case at hand the Appellant claims that PWl and PWS contradicted each other in mentioning his name. While PWl mentioned him as "Dan 11 Mwakipesile PW5 mentioned him as "Daniel Mwakipesil~." Just like Ms. Mgeni argued, I also find this contradiction to be very minor and not going to the root of the matter. The Appellant has not denied his name as "Daniel Mwakipesile," usually the name Dan" is used as a short form of 11 Daniel. Both PWl and PWS mentioned the sir name as "Mwakipesile" and it is really the sir name of the Appellant because it features in the charge and other documents in the record of the Court and has not been denied by the Appellant. I therefore agree with Ms. Mgeni that this ground is baseless and consequently dismiss it. On the 4th ground the Appellant stated that the trial Magistrate erred in law and fact in convicting the Appellant by merely believing the evidence of PWl, PW2; PW3, PW4 and PWS without considering that all of them had personal interest in the case and thus their eviden<;:;e ought to have been taken with care. In response to this ground Ms Mgeni argued that the Respondent has not explained even in his defence how the interests were. He failed to show how the witnesses hod interest in the case. I have gone through the trial Court records and found that this issue was never brought up by the Appellant for the trial Court to consider. Since it is a matter of fact, it cannot be entertained at this appellate stage~;.s, Page 8 of 14 I . eY.en if this C0urt deeiqes to deliberate n it, it cannot be ih a position to: do so as th.e Appellant, as argued by Ms. Mgeni, haJ not provided 1 explanaJior1s as·- to how fhe. said witne~ses had persona( inferes:t Jh the Cb$e ·tach1g_ h"im. I find n.o me:rif lo this: g:round -and dis,riiss ij ~c-¢ptdih@bi\ On the 5th ground the Appelldhl sMe) !hot fhe !rial Ma1fatrote err.e·ct Jr,, ...• . . .. ,. .. : . i. . . .. .low ond fact in c::9.r1Vi¢ting tbe Ai:,p:ellqn;t by merely- l;)elie_ving tho:t .be:te.r@ j I cmd irnmediqt'ely after the.: all.eged stenl]ng he did fhre-at~n RWJ by. :.u$ing. a knife in order to obtc:iin the stolen ¢m·◊-unt while there was :no ;any I . weap.on/knife tendered in court as ex~ibit to prove the allegqtio.n. Ms. 1 I I Mgeni re~ponded to this ground by subr itting that the kn ife could not be 1 fot1nd as the Appellant ran away with it. The witnes·ses however, saw him witn that wecii,;,an.She conGI\Jded l;).y afguing that itis r1Jt•aiways /l;rot Oil .exhibits .hove to be bro,LJ:gh.t.in court. I . . . .. . l . •.·.. .. ·•.• .. , ,, . Oh this :Jssu:e, :1 dg:te.e Wilh the. q~gun:i~h.\ :py- Jy'ls. Mgehi, th9t :it: ij opt 'QlWqys • I . that aU exbTIDHS· hove- to be. pro.Light in d.01:Jr't to prove ·on offenc.e;. "The ocl 1 . I of not tendering fhe weapon 'in c-ourt ?o·es not amount \to failure. on tne prosecution side to prove the case ! beyond reas·bndble. do_u,b.'t," ·The I . prosecµfkm coo $UH be able to prov~ o case of arme,d .roobe:iy eveM I withou.t tendering the we.-ap:on used in court, e·speq:ially wh:ere the wedpon Is ..nowhere to b.e found, bit I there is sorne other evidenGli .e-o.hheGtih.g fhe 0cGus.ed to -the erimej charged. The prps:.e.cuJi.Q;n hO$ to . • ! I prove th·at a dangero,us or offensive w~apon or instrument was· ,used 'ar,d 1t is not n.e.cess.ary that the ·sam.e must· ~e ,available to bei brougnJ t◊ 1¢().urf I :qs evio:e:r:ice ,· ThereJ0r:e; 'if -the. weapon js found it shall be brOtJQht to ;c0urt 1 as ,evidence on.d if it 'is not found tht prosecution will us·e s ~ ~ e r .l.. Page9.of14 I evidence to pr.eve fhe comm.··. issio. n of fh·el offen.ce charge'4·· lri the c¢'Se o} hdnd., the .evidence of PW 1, PW2 qnd PW3 proved tho~ a kn[fe as, an off.Eim$ive, weapon was used by the Appellcnt Jo rob money from .PWl .. This: ::ground stands dismissed .as well. I On th:e: 6'th grou.h;q th.e Ap~ellont stoted that the. trial Mo;g'istrdfe ,e.rred in law 'and f.act in convicfing the· Appellt1h1 relying on prose9ufion ·witnesses While the ~ase ~es po Gilly inveslf~a!e~f e sfat~d f~ith;air thduher~ WQs nq. any po\l!Ze o:ffrcer .from Jv\barali Gnmu~al lnvest,gatron de:partmentwho was :s.ummone:d before the, tridl Court ds a witness ih order to prove the anegations against the App~llant. There /was also no any J~ader lr◊R"l that G1rea who was also called 1n court to prove the ollegat,ons. Ms. Mgen1 r.e.sponded by arguing that the prosecJtion decides ·on ~he· wftnesses fa bting to court, the lnw does not oblfgatel on the nu.rhber of wi_tnesses to be ~:◊tJ@hl jo; ~-alJrl. TIJ.e. ones pn;,senter by the prpsecrtion wer<, .key -W!clnesses,·<,10:ct s.Uff1ce;d 10' prove: the of/ere•. i . Th:~ _Law of Ev(o$._r;i¢e :Ao:t, Gop 6'. R;,~'. FOQ2 unde_r se.ct,i:Jn T4:3: d~_es".:n~l ,O.blr~e foi a porti:cular nwmber ol wit7esses to be b.ro:ll!ght to ;co:urt. ~o te~tif;y. The· pr~s~:cutioh u~u"al'.y brings wiresses whi~:h. it d~ems.suffident to prove thE:?; case; The CAT In t,Me oasr of Tuma,n, Mt?yqmba v~! J.IJ.~ Repub/lc, Criminal Appeal no. 217 ol .20i.12; whereby an i1vestrgoto:r-0J the cose was:not sumrno:n:ed to testify in co -rt held thdt: · . . . . I "As. for the c9mpl_aint by the opp . I/ant that there w:a.s otnis.sioh: by ,th:~ prosecution to call some/ of the witnesses,: we agree With the led(hed State Attorney .fihat the pr~secuti?n had _the d~f:Y t.o prove the case aga1?st t.he appe//an:t '°~? t,t-)e d1scret1°'n was on . .them to call .. ]e. w1_tness.~s .the t. .. Y ro·?·.s1,d·_.·, ere.·?.· relevant for provrng ,the case agrnnst the appell~[l.!~ Jte. Page 10 of 14 I ~"5- choice was not that of the appellant but the prosecution. In any event the role of the appellant in his defence was to cast doubt on the prosecution case." therefore agree with the learned State Attorney's submission on this ground. In my view, the Appellant could have used the omission in calling witnesses to his advantage by casting doubts into the prosecution case. The omission to call a witness can only be fatal if a key witness is not called. See, Shida Lwanda Aidan@ Kaka v. The Republic, Criminal Appeal no. 447 of 2015. In the case at hand I find that, PWl was the key witness and his testimony was corroborated by that of PW2, PW3, PW 4 and PW 5, thus the omission to call the investigating end arresting police officer was not detrimental to the prosecution case. I find this ground devoid of merit. On the 71h ground the Appellant stated that the trial Magistrate erred in law and fact in convicting the Appellant relying on the detention register which was tendered in court by the prosecution at the defence hearing on 10/04/2017 while the said exhibit was not verified by any police officer. ln re.sponse to this ground, Ms. Mgeni argued that the Appellant was not convicted basing on the register, but on the offence committed. The said register was brought to the trial Court after the prosecution had closed its case and it was after the Appellant had claimed to have been in prison when the offence was committed. The trial Court considered the register as a matter of reference and not exhibit. I have read the judgment and proceedings of the trial Court and found that the detention register was brought to the trial Court after the Appellant claimed in his defence that on the date the offence~ e d Page 11 of 14 to be committed he was in prison. The same was brought to ascertain the Appellant's all.egations that he was in prison on that material day. The trial Magistrate at page 19 of the typed proceedings stated that the register was taken for reference and not as exhibit. Specifically, the trial Magistrate wrote: "This Court takes the Detention Register as a matter of reference and not Exhibit in case there is any doubt raised at the judgment or appeal." However, at page 11 of the typed judgment it appears that the trial Magistrate considered the Detention Register as evidence~ She specifically wrote: "During defence case the accused person told this Court that on 09102/2017 around 15:00hours he was present at Ubaruku. One Police Officer arrested him, he was accompanied by Roman. He stayed in lockup for several days when he was sent to court. This Court raised doubt if the accused person was arrested on 09/02/2017 white the offence took place on 12/02/2017. The Prosecution decided to show to this Court the book which the accused person was registered at the time he was sent at Police Rujewa. It shows that the accused person entered at Police on 13/02/2017 and he was sent at the Court on 21/02/2017. The Register book was admitted as Exhibit PE 1 during defence case. Therefore it was proved that on that date the accused person was not yet arrested by police. He committed the offence on 12/02/2017 he was arrested on 13/02/2017." From the above quotation, it is obvious that the trial Mqgistrate gave the Detention Register evidential value while it was not properly admitted as evidence in Court. I therefore expunge the same from the r e c ~ the Page 12 of 14 ' Co~rt. Ho-Wev~r., I .still find thot there is overwhelm'ing eV:(de-nc·e ·fro.m the prose,:ution witnesses connecting the Ajhpellant to the cri;e <:har,ged'. On the 8th ground the Appellant state , that the trial Mqgistrate erred in :law qnd fact 'in convicting.. the AppelicJt I relying . on the e1v: ide.nce of PW2,. 1 Jhe gu_es:t hous:e cttend.dnt while His· e'¥iderice was not 9orrob¢.rqted by the owner of the gµest house, That )he)19 W<Ji no proof trfm lliEl OY\ff)E)r Pf the ·gu~st ho.!-)se as to whefh:er PW:2 ,as really e:mploy~d af"fh©t (gues~ hou.se. Ms ..M:gerii tt(gue.d in tesponse ~hat this grou11:0 n:as n:o pqs~ ·q_nX?i ought b be dismissed. ~he argui,d thOtJhere was no reas~n for th:e own~r to corr.ie t.o the Court as he w,as not at the cnrtre scene when 1t I happ·ened; PW2 was the one who wrtnJssed the offeJJCe.1 He was the -o:r1.e Who Invited the .Ap~.eUdnt and the vicfi~ ano ·showed them a plqce. ;to: ~it. J qgree with Ms. Mgeni's argument that th·ere was no ne~d of calling the o:w.ner of the ,guest' house os a witnessJ The law reqU,ires1 evi-<::Jenc:e: to pe· elite.Qt evi~ence, thot is~ which comes ~rom the person ·yvho saw1 he_ard, felt, etc. PW2 te,sfified to have recervJd the Appellant pnd :p:Wl a;t -fhe:- suest h.ous.e an.d that stie .heard PW! c~lling for help gh1 "Vh¢/1 si;loWElhl t¢ her sh$. fQlJhd the ..Appe.llont. holding;' a. knife·. Thus wH1 re,gard fo these. 0 ev.enl$, PW2 proVide:d direct ,eyidence rhich w.as eno1:.1gr to corrob:orate the evidence. @f pw:1 -~ I find thi~ grcfund -of t1ppegl bas'6}.le.$s.: dlt)cq _d_i{f;ni$$: Jt .•· . . I acc0rd.in91y;. i On the 91h I)r~vnd the Appellant st.ate thdl '.he friai Mt gisltdle .er(ed ib law anc:l fqct 1.n conv1ct1ng the Appe.llont for frnlu.re to analyse adeqQdteJy I • . the evide.nc:e, and totally ignoring the defenc:e ev.-iden-ce . th~i_·Eeby, I . {ljB')!YA Page 13 bfl4 reaching at an erroneous decision. Ms. Mgeni responded by referring this Court to page 1l and 12 of the trial Court judgment and submitted that it is clear that the defence evidence was analysed and considered by the trial Court. I have read the judgment of the trial Court and founq th,at the trrol Magistrate considered the evidence adduced by both sides ond came to a conclusion that the Appellant committed the offence he stood charged with. Following the obsetvations I have made herein above, I find the Appellont',s appeal devoid of merits. The appeal is therefore dismissed in its entirety. Dated at Mbeya this 2$.rd day of September 2019 L.M~~ELLA JUDGE 23/09/2019 .·. , " I ·. - . ,_ --~d~g:: Judgment delivered at Mbeya in Chambers on this 23 day of _)·- /'ji rd ·<J' September 2019 in the presence of the Appellant appe.arin:g in person and Mr. Kihaka; State Attorney representir\g the Respondent. L.M~GELLA JUDGE 23/0?/2019 Right of Appeal has been explained 4k1dfi L. M.'MONGELLA JUDGE 23/09/2019 Page 14 of14