20190708 TZHC Mwanza2

IN THE HIGH COURT OF TANZANIA (MWANZA DISTRICT REGISTRY) AT M·WANZA CRIMINAL APPEAL NO. 276 OF 2018 (Appeal from the Judgment of the District Court of Misungwi at Misungwi (Marley, DRM) Dated 25th of September, 2018 in Criminal Case No. 71 of 2018 SHINJ E LU FU NGA ................................. .- ......... APPELLANT VERSUS THE REPUBLIC ................... ,.. ~ ........................... RESPONDENT JUDGMENT OF THE COURT 05.07.2019 & 08.07.2019 M.K. !SMAIL, J The Appellant was charged with an offence of armed robbery, contrary to section. 287A and C of the Penal Code, Cap.16 R.E. 2002. The District Court of Misungwi at Misungwi, before which he was charged and tried, convicted him of the charged offence and sentenced him to imprisonment for thirty (30) years. Dissatisfied with both the conviction and sentence, he has appealed to this Court on four grounds reproduced in verbation as follows: I l ·~ 1. That, the appellant's identification by the identifying witness was rather an afterthought, so far as for unexplained reasons to retrieval and arrest of the appellant · almost 3 months elapsed shaken the prosecution· case though the trial magistrate had not directed the Court's mind on the same. 2. That, the trial. court erred in law and facts to rely on bare assertion of recognition without being accompanied with (sic) details of descriptive features, so uncogent and unreliable. 3. That, the appellant's identification fall (sic) far short to (~ic) to guidelines stipulated for the law and precedent. 4. That, the charge against the appellant .was not proved beyond the grain of doubts. Facts of what transpired before trial and leading to his conviction can be prefaced as follows: That on 16th March, 2018, at around 02.30 am, a robbery incident occurred at Mwagalala Village in Misungwi District, Mwanza region. The victim of the incident was a Mr. Jeremia Philip, 2 ;~ who featured as PW 1 in the trial proceedings. It was alleged that ( ,1 following the incident, the victim was robbed of Tzs. 5,000/- in cash, a mobile phone, Tecno L.150, valued at TZS,. 70,000/-, a radio worth ~ 50,000/- and a solar energy battery valued at TZS. 60,000/-. The incident involved threats and use of panga and clubs against the victim. The victim suffered bodily harm as a result of the attack perpetrated by the assailants and had to. receive medical attention as a result. The Appellant and his accomplice, a Mr. Nyanda, who has since gone into the hiding, were positively identified. He was then arrested and arraigned in court where he was convicted and sentenced to a thirty-year prison term. At the hearing of the appeal, the Appellant fended for himself, while the Respondent was represented by Ms. Gisela Alex, learned State Attorney. Noting that the Appellant is a lay person who did not enjoy services of a lawyer, I guided that the Respondent's Counsel should be accorded the privilege· of submitting on the appeal first, before the Appellant makes his arguments in support of the grounds of appeal. 3 · '; ;, ,. Ms. Alex began by supporting the trial court's conviction and C .j sentence. In respect of the first ground of appeal, the learned sta~e attorney submit.ted that the . appellant was identified by three witnesses, namely; PWl, PW2 and PW3. She contended that all these identified the appellant and his co-offender by names, as did the neighbours who responded to the alarm. They _attempted to arrest them but they ran .away (see page 6 of the proceedings). The learned counsel referred to the case of Omari Kijuu v. ~, Criminal Appeal No. 23/2004, to support her contention, arguing that in the referred case, the Court held that the accused's disappearance immediately after the event and re-reappearance after so long is inconsiste·nt with. innocence. She was of the view that this ground of appeal is baseless and prayed that it be dismissed. With respect to the second ground, the learned counsel argued that in terms of the testimony (pages 5 and 6 of the proceedings), PWl was. able to identify both of the assoila-nts because they live in the same village and they know them very well. She added that it was in the course of the arrest that they ran away. The counsel further contended that PWl 's testimony was 4 ,.,., 7 .,. corroborated by PW2 and PW31 who identified them because of the solar light and the fact that t~ey are the people they know very . ' . well. The respondent's counsel argued that the fact that PWl I identified them immediately shows thqt there was no need for I descriptive identification. She urged the Court to take inspiration - I from the case of James Kisabo Milango & Another v. R, Criminal . l . Appeal No. 261 /2006. 'She contended that this ground is also I baseless. Reacting to the third groun~, the learned counsel reiterated I her contention that identification· of the appellant was based on I the testimony of PWl, PW2 and Pf 3, as covered at pages 5 and 6 of the proceedings. She relied on the conditions of identification as 1 < enunciated in the case of Waziri :Amani v. R [1980] TLR 250. While I . conceding that the prosecution ~vidence did not tell how long it - I · took for the witnesses to observe the assailants, it is clear that they 1 came, attacked PWl and collect ed all items which were stolen. I This shows that the process took long to be completed. With . I I - respect to distance, the counsel argued that PWl 's testimony is to I the effect that they got into an illuminated room which was bright . I I enough to enable them see the assailants. The counsel further 5 contended that testimony of PW l, PW2 and PW3 shows that there was a solar light which was powEprful enough to be able to see and identify the appellant without any problem. She submitted further that page 9 ·of the pr9ceedings clearly shows that PW3 was able to identify the assailants when they were leaving the scene and that it was possible because of enough light. The counsel further I contended that all prosecution witnesses ·were from the same 1 village with the appellant and that at the time of the incident, none of the assailants hid their identity, meaning that the latter was familiar to them, hence the ease in his identification. With respect to analysis of evidence, the learned attorney conceded that the trial court did not dwell on specific issues which were raised in the defence testimony, choosing talk about it in general terms. The learned counsel was of the view that, while the anomaly was fatal, but this is still a ,curable error and this Court can do so by invoking the provisions of section 388 (1} of the Criminal Procedure Act and direct the trial court to compose a new judgment with proper analysis of defence evidence. 6 On his part, the appellant had nothing to submit, except urging the Court to the allow the appeal as filed. I choose to dispose of this .appeal by first analyzing the fourth . ground of appeal in which the appellant contends that the charge against the appellant was not proved beyond the standard required_ for proof in criminal cases i.e. beyond reasonable doubt. The respondent firmly holds the view that the testimony adduced by the prosecution . witnesses was quite impeccable on what exactly happened and how the appellant was involved in the incident, and that is was sufficient to found the conviction. Gathering from the record, it is quite clear that eviden_ce which constituted the basis for conviction was that of identification. That is the testimony which was used to discharge the prosecution's burden of proof. While evidence of identification can found a conviction, position of the law is to the effect that such evidence must be strong enough to sustain the conviction. This position traces its history from the old case of Abdallah Wendo and Another v. R (1953) EACA 166, in which the now defunct Court of Appeal for East Africa held that identification evidence must be watertight to sustain a conviction. 7 ~ This principle was restated and given fresh breath in the subsequent l,, decision of the Court of Appeal of Tanzania in Mwalim Ally and Another v. R (CAT) DSM Cr: App. No. 39 of 1991 (unreported). It was held: "Where the evidence alleged t,o implicate an accused is entirely of identification, that evidence must be absolutely. watertight to justify a conviction." · Further impetus was given in Raymond Francis v. R [1994] TLR 100 (CAT), in which emphasis was given to the effect that: "It is elementary that in a criminal case whose determination depends essentially on identification, evidence on conditions favouring a correct ?dentification is of the utmost importance.,, In ascertaining if identification evidence sought to be relied upon is watertight, regard has to be had to established principles that govern identification of an accused person. These are stated in a multitude of cases, including the land mark case of Waziri Amani v. R (supra) cited by the_ learned counsel for the. In that case, the Court held thus: 8 ''No court should act on evidence of visual identification (_ ~ unless, all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence is watertight. The following factors have to be taken into consideration; the time the witness had the accused under observation, the distance at which he observed him, the conditions in which such observation occurred for instance whether it was day or night (whether it was dark if so was there moonlight or hurricane lamp etc), whether the witness knew or had seen the accused before or not. It is evident that the appellant's conviction was largely based on the evidence of identification as adduced by PW 1, PW2 and PW3, all of whom testiffed to the effect that they saw and identified the appellant and his fellow assailant and that there was an attempt to arrest them but the assailants became elusive. From this testimony, the basic question is whether this identification met the required legal threshold of a watertight identification. I have· no qualms about the fact that the witnesses' possibility of identifying the appellant in view of the fact that they are from the same village and that their faces are familiar; the fact that the room 9 was lit by solar light; and that thej suspects were named at the I earliest opportunity, consistent with the holding in the case Marwa ' ; Wangiti Mwita and Another v. Repu~lic, 2002 T.L.R ... in which it was stated thus: "The ability of the witness to narhe a suspect at the earliest I possible opportunity is an important assurance of his - - I reliability, - in the same way as unexplained delay or - l complete failure to do so should put a prudent court to I enquiry." I My real worry comes from the(act that other significant steps in the identification process were not followed. These include the - I - fact that attire and description o'f the assailants, including the · I appellant were not given. This is ~a mandatory requirement for · successfully reliance on the identifi~ation testimony and its failure I renders the testimony suspect and highly unreliable. In the case of Ibrahim Songoro v. Republic, Criminbl Appeal No. 298 of 1993 (CAT) I at Dar es Salaam) (Unreported), it w,~s held: j 11 •••• where a suspect has been identified, the name, attire or I description of the suspect should be made at the earliest opportunity." I l 10 ! The stated position is in concurrence with the observation in Juma Mussa v. R, (CAT) DSM Cr. App. No. 165 of 1991 (unreported). The ( Court of Appeal observed as follows: "... PW r did not_ give ·any explanation as to how he purported to identify the appellants. The record is completely silent as to the features of the appellant. Appeal allowed inter alia due to the above ground." See also the decision in Republic v. Elia Sebwato (1960) E. A 174 and Hassan Juma Kamote V. R, Criminal Appeal No. 72/2008 (Tonga July 2009). Nothing in the prosecution evidence has been given to indicate that any of the witnesses gave a description of how the appellant and the elusive occomplice looked like and the attire they donned on the fateful .day. Failure to do this had the potential of making a mistaken identity of the assailants notwithstanding the fact that they were both known to them before the incident. As if this is not enough, one mightier omission is also prevalent in the prosecution's testimony. Looking at- the witnesses who were paraded for testimony, the revelation that comes out glaringly is that none of them was a police officer before whom a complaint ll would be lodged and investigated; This is the person who would tell ( the court on what exactly the victims said about the assailants' identification, and such other information necessary in proving the ~!legation. The importance of ·a w,itnes? from· the police lies in the fact that the requirement of the ldw is that naming of the suspect and all other issues pertaining to identification must be made to a police officer; This position has been stated and emphasized in a number of decisions. In Vita Quambaday v. Republic, Criminal Appeal No 28 of 2008 (unreported), the complainant's room was broken into at 2.00 am by bandits whom the complainant, her son and.sister in law (PWl, PW2 and PW3 respectively) alleged to have recognized through ·1ight from a lantern lamp which had a bright light. The complainant claimed that she especially recognized the appellant because he was known to her before. She even mentioned his nickname and described his attire at the time of commission of the crime. In discussing the matter before it the Court noted that: " ... there was no evidence from the police to substantiate the evidence of PW1, PW2 and PW3 that the offence was committed, reported to the police, and to whom the name of 12 the appellant was mentioned as being the one who committed the offence. The fact that there was no evidence from the police to show how the offence was committed and the fact that there was no evidence to show to whom the appellant was named as a culprit were found to be deficiencies which made identification of the culprit questionable." See also; Amos Paulo & Another v. The D.P.P, Criminal Appeal No. 308 of 2009 (Arusha, February, 2012). · The position in Vita Quambaday mirrors what happened in this case. There is nothing to show that the appellant and. his elusive comrade In crime were ever named to a police officer whose testimony would be required to resolve some of the issues which are still begging in this case. As was in the cited case, such absence has left deficiencies which have made identification of the appellant and the other suspect highly questionable. Though nothing of significa_nce came from the appellant to discredit the testimony or credibility of those who testified in court, the appellant has taken exception to the reliance of evidence of identification which was done three months after the incident. As I 13 find this contention hollow and high_ly dishonest, ,n the circumstances where it is the appellant who absented himself immediately after the incident, and resurface after three m~nths, I agree with the res·pondent. counsel that such disappearance is. inconsistent with innocence, as held in Omari Kijuu's case. But that is the furthest that argument can go, and sense would be had if all prerequisites of a valid identification were observed. In the present circumstances, and amidst the cited deficiencies, the wisdom in Omari Kijuu's case remains admirable but not desirable. I see nothing to convince me to align my thinking to the trial court's finding that the prosecution proved its case beyond reasonable. The evidence adduced was patchy and seriously lacking in some material aspects which would justify reliance on the evidence of identification adduced by PW 1, PW2 and PW3. I am of the conviction that circumstances of this case do not tick all the boxes in Waziri Amani's case. Consequently, I allow the third ground qf appeal. 14 This ground, alone, is enough tb dispose of th_e appeal in the appellant's favour, and I see no rebson to strain my muscle and I I tackle the remaining grounds of appeal. I, It is worth of a note that, in the course of hearing, the Court I I required the counsel for the respondent to state if the trial court . I l considered the appellant's defence testimony. The learned counsel held the view that the tridl ' magistrate . considered the evidence quite generally. She was quick to urge the . Court. to ! . I invoke the provisions of section 388 (1) of the Criminal Procedure Act and order fresh composition of tre judgment. I I have painstakingly . carried a '.review t of the judgment of. the trial court's decision. Nowhere in there j has the trial magistrate touched the defence testimony, even t in the passing. The judgment is a one sided account of what was alleged against the appellant I and one gets the impression that thet appellant did not put up any I defence. This happened even w~ere the appellant testified in ' defence, and that such testimony vyas recorded at page 13 bf the ' trial court's proceedings. 15 As rightly conceded by the counsel for the respondent, the trial ( magistrate was in fundamental error when he carried out an evaluation of the evidence in piecemeal or in isolation of one set of 1,,,_' • testimony. It follows t0at the decision emanating from this horrendous flaw lacks the legitimacy requisite for a valid judgment. However, since the decision of the trial court has been found to lack the basic foundation for _its sustenance, I refrain from discussing consequences of such flaws. In the consequence, I allow the appeal, quash the conviction, set aside the sentence and set the appellant free, unless he is otherwise lqwfully detained. I so order. l.6 Date: 08/07/2019 Coram: Hon. M. K. Ismail, J ( Appellant: Present in person 1; • Respondent: Ms. Ajuaye Bilishanga., Senior State Attorney. B/C: B. France. Court: Judgment delivered in chamber in the presence of the Appellant in person, Ms. Ajuaye Bilishanga, Senior State Attorney for the Respondent and in the presence of Ms. Beatice B/c this 08 th day 17