CRM

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: NDIKA. J.A., LEVIRA, J.A.. And RENTE, J.A.^ CRIMINAL APPEAL NO. 250 OF 2020 JOSEPHAT MLEKWA.................................................... FIRST APPELLANT SYLVESTER JOSEPH MANGALA................................. SECOND APPELLANT VERSUS THE REPUBLIC .... ...................... ;...... RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Mwanza at Mwanza) (Hon. Mahimbali. SRM. Ext. Jurist dated the 20th day of November, 2020 in RM Criminal Appeal No. 9 of 2020 JUDGMENT OF THE COURT 30“ April & 6th May, 2024 NDIKA. J.A.: Josephat Mlekwa and Sylvester Joseph Mangala, the first and second appellants respectively, were convicted by the District Court of Nyamagana on two counts of armed robbery contrary to section 287A of the Penal Code. Two individuals who are not parties to this appeal were also convicted. Each of them was sentenced to the mandatory thirty years in prison for each conviction, to be carried out simultaneously. Their joint appeal against the convictions and sentences, heard and determined by the Resident Magistrate's Court of Mwanza at Mwanza (Hon. Mahimbali, SRM - Extended Jurisdiction, as he then was), was unrewarded, hence this appeal. In support of its allegations, the prosecution presented sixteen pieces of physical and documentary evidence in addition to the testimonies of ten witnesses. Regarding the first count, it was alleged that on 14th January, 2016, in the Buswelu 'A1area of the Ilemela District in the City and Region of Mwanza, the appellants, along with five other individuals not parties to this appeal, stole TZS 800,000.00 in cash and one mobile phone, a TECNO F7, valued at TZS 500,000.00, from the possession of one Hellen w/o Samson. Immediately following the theft, the appellants allegedly beat Hellen w/o Samson with an iron bar to retain the property. With respect to the second count, it was claimed that the appellants and their five accomplices stole one handgun, model CZ 75 with maker's number B.138393, valued at TZS. 2,600,000.00, and 31 rounds of ammunition, valued at TZS. 93,000.00, the properties of Samson s/o Dwese at the same time and location. Immediately following the theft, the appellants allegedly struck Hellen w/o Samson with an iron bar to retain the said properties. 2 With respect to the appellants in this case, the prosecution's case rested upon visual identification evidence, a confessional statement ascribed to the first appellant, and additional confessional statements from the co-accused. Collectively, the prosecution witnesses' testimonies tended to support the following storyline: that on 14*11January, 2016, around 2:00 a.m., Hellen w/o Samson (PW1) awoke from her sleep upon discovering that the entrance to her residence had been forcibly opened and breached. Upon peeping outside through a window to her bedroom, she observed that three unauthorised individuals had already breached the perimeter wall. She called her spouse (PW2 Samson s/o Dwese), who was riot present, on phone in a state of panic. When she raised an alarm in desperation, the invaders broke a window to her bedroom and demanded for money from her. In anticipation of their impending intrusion into the residence, she hurled her wallet containing money at them through the window. In response to their continued demand, she threw her mobile phone once more through the same window. The robbers entered the residence shortly thereafter and accosted her in her bedroom. They assaulted her with an iron bar and spent over thirty minutes ransacking the entire residence in search of valuables. In the end, they escaped with the handgun belonging to her spouse (PW2), the cash, and the mobile phone. PW1 maintained steadfastly that she observed and identified the robbers at the crime site, which was well-lit by electric bulbs. PW6 Jumanne Kimu, who was the Officer Commanding - Criminal Investigation Department for the Ilemela District at the time, and Detertive Constable1Bakari of the Cybercrime Unit (PW&), were promptly dispatched to the crime scene following the occurrence. Upon questioning PW1, it was determined that the IMEI number of the stolen device in question was 861155022212187. Undoubtedly, a cellular phone's IMEI number, which stands for "international mobile equipment identity," is a distinct serial number or identifier. In collaboration with No. G.5050 Detective Constable Mahingu (PW11), a Police Officer of the Cybercrime Unit, PW8 successfully tracked down the whereabouts of the stolen mobile to Emmanuel s/o Musa, the sixth accused person in the trial, at Makirikiri Bar on Jamhuri Street in Dodoma. That was on 19th January, 2016. On the same day Emmanuel s/o Musa was apprehended. Following the investigators' instruction, the said Emmanuel s/o Musa initiated contact with his accomplices via the stolen phone. Subsequently, six suspects, which included the appellants, appeared. All of them were swiftly apprehended and transported to Mwanza on 20thJanuary, 2016. PW6 further presented evidence that two of the apprehended suspects (Japhet s/o Joseph Luchagula and Emmanuel Sospeter Sengerema, the first and fourth accused, respectively) admitted guilt for the crime on 21st January, 2016. Then, in the presence of PW6 and PW8, they led the police to a dilapidated structure at Nyasaka 'A' in Mwanza, where they retrieved the stolen handgun, its two magazines, and thirty- one rounds of ammunition (exhibits P ll, P12, and P13 respectively). A resident of Nyasaka TV, PW7 Paskali Kashida, confirmed the purported seizure. PW3 Inspector Swalehe reported that on 24th January, 2016, the police conducted two identification parades after the suspects' arrival from Dodoma. Inspector Swalehe provided oversight for these operations. PW1 swore that she picked out both appellants and another person (the first accused at the trial) the robbers who were present at the crime site. Her testimony garnered endorsement from both PW3 and PW12 Ibrahim Emmanuel, an impartial observer who was present at the procession. Exhibits P2 and P3 comprised two excerpts from the identification parade register that were admitted. The trial court was informed by Police Officers No. F.2214 Detective Corporal Mahija (PW4) and No. F.3722 Detective Corporal Vedastus (PW5) that, except for the second appellant, all the accused persons admitted guilt via their cautioned statements. With respect to this matter, exhibit P4 was admitted, which was a cautioned statement recorded by PW4 but attributed to the first appellant. In contrast, PW5 submitted five cautioned statements (exhibits P5 through P9) that he attributed to the first, fourth, fifth, sixth, and seventh accused persons. A characteristic shared by all the statements is that each accused person not only admitted to committing the offence, but also identified his co-accused as accomplices. The first appellant, in his defence, rejected liability on the grounds that the case against him was fabricated. Furthermore, he renounced the confessional statement that was ascribed to him (exhibit P4). For his part, the second appellant offered an alibi along with a general denial of criminal responsibility. Furthermore, he denied the assertion that he was apprehended in Dodoma. As previously alluded to, the appellants, along with the first and fourth accused persons, were found guilty on both counts by the trial court. Regarding the appellants, the trial court determined that they were clearly observed and identified by PW1 at the site of the crime. This was pertinently confirmed when PW1 picked them out during identification parades, as PW1 herself claimed and PW3 and PW12 concurred with. Additionally, exhibits P2 and P3 were regarded as corroboration. Moreover, the trial court determined that the confessional statements that were admitted into evidence adequately implicated both appellants. We would like to interpose and mention that the record indicates that the second appellant did not provide a cautioned statement. Consequently, we are compelled to inquire as to what "confessional statement" the erudite trial magistrate intended to be used against the second appellant. As previously mentioned, the Resident Magistrate's Court of Mwanza at Mwanza (Honourable Mahimbali, SRM - Ext. Juris., as he then was) was unimpressed with the initial appeal. The primary finding of the trial court, which stated that the appellants were positively identified at the scene, was affirmed. Furthermore, the learned magistrate was astounded by the expeditious way the appellants and their accomplices were apprehended in Dodoma after the police cybercrime officials' tracing of the stolen handset. It was his opinion that PW3, PW8, and PW11 provided evidence of a seamless correlation between the content of the confessional statements and the way the arrests were effected. Resenting the decision of the first appellate court, the appellants have filed an appeal with this Court, citing seven grounds. In our considered view, the appeal turns on two main complaints: one, that the visual identification evidence on record was weak and unreliable. And two, that the confessions relied upon to convict the appellants were inadmissible and or unreliable. The appellants appeared in person before us to prosecute the appeal. Ms. Revina Tibilengwa, learned Principal State Attorney, vigorously opposed the appeal in collaboration with (esteemed State Attorneys Messrs. Christopher Mbile and Adam Murusuri, who represented the respondent. The cogency and reliability of the visual identification evidence is our initial preoccupation. The appellants merely petitioned us to grant the appeal on this point, arguing that they remained unidentified at the location of the incident. Ms. Tibilengwa vehemently endorsed the concurrent conclusion reached by the lower courts that the visual identification evidence was infallible in the appellants' case. Drawing attention to page 21 of the appeal record containing the testimony of PW1, the sole identifying witness, she contended that even though the assailants were unknown to PW1, the circumstances at the location supported an accurate identification of the wrongdoers. She further stated that PW1 witnessed the assailants so closely when they confronted her in her bedroom for more than thirty minutes, in addition to the scene being well-lit by electric bulbs. The learned State Counsel further contended that the visual identification evidence provided by PW1, in which she distinguished the appellants during the two identification parades held on 24th January, 2016, provides further support for that evidence. She continued by stating that PW3, who oversaw the parades, certified that they complied with the law in full. Additionally, she made use of the excerpts from the identification parade register (exhibits P2 and P3) and the testimony of PW12, a phantom but independent participant at the parades. When questioned by the Court regarding whether PW1 provided the police investigators with a description of the assailants, Ms. Tibilengwa acknowledged that the record is silent on that point. Furthermore, she conceded that PW1 refrained from disclosing the presence of electric bulbs in the bedroom or the overall count of the robbers she identified at the location. She directed us, nevertheless, to page 23 of the record of appeal, which details PWl's assertion that every assailant was unmasked. She restated her claim that affirmative identifications of the appellants were obtained at the crime scene. 9 The appellants contended in their rebuttal that PWl’s testimony was largely unreliable due to her failure to provide police investigators with information regarding the attackers' description. In this case, where the robbery transpired during the wee hours of the morning (around 2:00 a.m.), the evidentiary value regarding how the f 4 intruders were observed and identified is critical. It is relevant to mention that our seminal decision in Waziri Amani v. Republic [1980] T.L.R. 250 regarding visual identification evidence issued the following caution on pages 251-252: "... evidence of visual identification, as Courts in EastAfrica and Engiand have warned in a number o f cases, is of the weakest kind and most unreliable. It follows therefore, that no court should act on evidence of visual identification unless all possibilities of mistaken identity « are eliminatedand the courtis fully satisfied that the evidence before it is absolutely watertight "[Emphasis added] Then, the Court stated, at p. 252, that: "Although no hard and fast rules can be laid down as to the manner a trial Judge should determine questions o f disputed identity, it seems dear to us that he could notbe said to have properly resolved 10 the issue unless there Is shown on the record a careful and considered analysis of all the surrounding circumstances of the crime being tried. We would, for example, expect to find on record questions as the following posed and resolved by him: 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-time, whether there was good or poor lighting at the scene; and further whether the witness knew or had seen the accused before or not These matters are but a few o f the matters to which the trial Judge should direct his mind before coming to any definite conclusion on the issue of identity." [Emphasis added] The Court went on to accentuate in Raymond Francis v. Republic [1994] T.L.R. 100 that: "It is elementary that a criminal case whose determination depends essentially on identification, evidence on conditions favouring a correct identification is of utmost importance." 11 See also Ahmad Hassan Marwa v. Republic, Criminal Appeal No. 264 of 2005 (unreported); Horombo Elikaria v. Republic [2009] T.L.R. 154; Ally Manono v. Republic, Criminal Appeal No. 242 of 2007 [2010] TZCA 22 [26 February 2010; TanzLII]; and Omari Idd Mbezi & Three Others v. Republic, Criminal Appeal No. 227 of 2009 (unreported). Without a doubt, the lower courts considered the aforementioned principles. Upon applying them to the case, they reached the firm verdict that the appellants were accurately identified at the location. In general, such a concurrent finding would have binding force on this Court as a second appellate court, barring misdirection or non-direction; see, for instance, Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 149 and Dickson Elia Nsamba Shapwata & Another v. Republic, Criminal Appeal No. 92 of 2007 [2008] TZCA 17 [30th May, 2008; TanzLII]. After conducting a thorough examination of PWl’s testimony, we are of the opinion that the appellants' identification was dubious, as we will shortly demonstrate. In the first place, we concur with Ms. Tibilengwa that the fact that PW1 was confronted from close range by unmasked assailants in her bedroom for more than thirty minutes lends credence to the possibility of an accurate identification of the perpetrators. Nevertheless, this alone 12 does not preclude the potential for an erroneous identification. Initially, it is widely accepted that PW1 disclosed that she observed, through the window of her bedroom, that three assailants had already entered her compound. She engaged with them through the window and hurled the phone handset and wallet that they requested. It is improbable, and no suggestion has been made, that she had identified, any of(the assailants at that juncture. Going by her testimony, PW1 was in a vantage point to observe and identify the assailants after they had gained ingress into her bedroom where, as she said, they spent over thirty minutes. As unveiled at page 21 of the record of appeal, she presumably described the illumination in the bedroom after the intruders had entered as follows: "As there was enough electricity and the buibs were on, I identified the accusedpersons." Whether the bulbs to which she was referring were in the bedroom warrants inquiry. It is probable that the bedroom was dark when the robbers entered. Subsequently, one might inquire as to who turned them on. Could it have been the criminals, who, being unmasked during the incident, they would obviously have exposed themselves? On this point, PWl's testimony is ambiguous and obviously suspect. 13 Furthermore, apart from PWl's vague assertion that she observed and identified "the accused persons" at the crime scene, she failed to provide any specific details on their appearance or physique. She provided the police officers who responded to her location shortly after the occurrence (PW3 and PW8) with information regarding the stolen phone handset.but failed to provide any description of the intruders. Given this, PWl’s: claim that she could in fact identify the assailants during the identification parades was without factual support. At any rate, this circumstance undermines PWl's credibility as an identifying witness. Inevitably, considering the weak visual identification evidence, the cogency of the identification parade evidence diminishes. An identification parade, for all its worth, operates under the assumption that the individual to be identified was present at the crime scene and that he was identified. It is pertinent to recall what we stated in Ahmad Hassan Marwa {supra) on this aspect: "We wish to restate the law that an identification parade, is itselfnot substantive evidence, but only admitted for collateral purposes. It derives its corroborative value from section 166 o f the Tanzania Evidence Act. So, if well conducted, its value is only to corroborate the evidence o f the 14 identifying witness (see Moses Deo v. Republic [1987] TLR 134 (CAT), Dennis Nyakonda v. Republic, Criminal Appeal No. 155 o f 1990 (unreported)). But the purpose o f corroboration is only to confirm or support evidence which is sufficient, satisfactory and credible and not to give validity or credence to evidence which is deficient, suspect or Incredible (See Aziz Abdallaih v. Republic [1991] TLR 7). It is further the law that for any identification parade to be of any value, the identifying witnessfes) musthave earliergiven a detailed description o f the suspect before being taken to the identification parade (See Emilian Aidan Fungo @ Alex & Another v. Republic, Criminal Appeal No. 278 o f2008 (unreported))." [Underlining supplied] See also Clement John Savimbi & another v. Republic, Criminal Appeal No. 49 of 2003 [2005] TZCA 68 [19thOctober 2005; TanzUI]; and Yusufu Abdallah Ally v. Director of Public Prosecutions, Criminal Appeal No. 300 of 2009 (unreported). We conclude, based on the preceding discourse, that the lower courts erroneously interpreted the visual identification evidence, which we find insufficient to support the conclusion that the appellants were positively identified. Consequently, we find merit in the first complaint. 15 In the second complaint that the appellants' convictions cannot be upheld based on the confessions on the record presents no difficulty. To begin with, it is important to recall that although the trial court proceeded against all the accused persons at the trial as if they had all purportedly admitted guilt through their cautioned statements, it is undoubted that the second appellant (who was the third accused at the trial) recorded no cautioned statement. In respect of the first appellant, PW4 tendered in evidence exhibit P4 to unveil what the first appellant stated under caution. It is the first appellant's contention before us that exhibit P4 was admitted in error. In her response, Ms. Tibilengwa acknowledged that exhibit P4 was admitted without any inquiry into its voluntariness, even though the first appellant had unequivocally disowned it when PW4 presented it. She consequently urged us to expunge the statement from the record. We respectfully concur with Ms. Tibilengwa that the trial court should not have admitted the said statement without first inquiring into its voluntariness. As evidenced by pages 43 and 44 of the record of appeal, the first appellant effectively refuted the statement when the trial court inquired whether he had any objection to its admission. The record itself speaks for itself: 16 "PW4: I pray to tender [the cautioned statement] as an exhibit if there is no objection. Court: [Second] accused asked if he has [any] objection. [Second] accused: I don't know it. I don't have [any] objection. Court: Admitted as exhibit P4." From our perspective, the first appellant's denial of knowledge regarding the statement, despite his subsequent admission of lack of objection to its admission, constituted a repudiation of the statement. In its capacity as a court of justice, the trial court ought to have halted the proceeding and initiated an inquiry to determine whether the first appellant made the statement voluntarily. This procedural error, as Ms. Tibilengwa correctly pointed out, nullifies the validity of the statement; see, for example, Selemani Abdallah & 2 Others v. Republic, Criminal Appeal No. 384 of 2008 (unreported). Consequently, we discount the said statement. The other limb of the current complaint requests that we examine whether the appellants’ convictions could have been duly upheld in light of the confessional statements of the co-accused (exhibits P5 through P9). As previously mentioned, not only did these statements implicate their respective authors, but they also implicated the appellants. Could the 17 convictions of the appellants be supported by the confessions of such co­ accused? Ms. Tibilengwa posited that the impugned convictions could not be substantiated by the confessions absent corroborating evidence from an independent source. We are cognizant of the fact that, pursuant to subsection (1) of section 33 of the Evidence Act, Cap. 6, an accused person’s confession in which he implicates his co-accused persons may be used against them. However, as stated in Section 33 (2) of that Act, corroboration of the confession is necessary: "Notwithstanding subsection (1), a conviction of an accused person shall not be based solely on a confession by a co-accused." Other than the evidence that the appellants and their five co­ accused were apprehended in Dodoma after police cybercrime officials had successfully traced the stolen phone handset, there was no independent evidence to substantiate the confessions of the co-accused. More significantly, none of the stolen items (the phone handset and the handgun) were discovered in the possession of the appellants. In the end, we allow the appeal on the ground that the prosecution failed to prove its case against the appellants beyond reasonable doubt. 18 Consequently, the convictions and sentences imposed on the appellants are vacated and set aside. Unless otherwise held in accordance with the law, the appellants should be promptly released from prison. DATED at MWANZA this 3rdday of May, 2024. G. A. M. NDIKA JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL The Judgment delivered this 6th day of May, 2024 in the presence of 1st and 2nd appellants appeared in person, and Ms. Tabitha Zakayo, learned State Attorney for the respondent - Republic, is hereby certified as a true copy of the original. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL 19