daniel amos mziho vs republic 2020 tzhc 374 31 march 2020

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF MBEYA) A TM B E Y A CRIMINAL APPEAL NO. 35 OF 2019 (Appeal from the decision of the District Court of Mbozi at Vwawa in Criminal Case No. 36 of 2017} DANIEL AMOS M ZIH O ................................................................................. APPELLANT VERSUS THE REPUBLIC..............................................................................................RESPONDENT JUDGEMENT Date of Hearing : 03/03/2020 Date of Judgement: 31 /03/2020 MONGELLA, J. In the District Court of Mbozi at Vwawa, the appellant together with other two persons were charged with the offence of armed robbery contrary to section 278A of the Penal Code, Cap 16 R.E. 2002. The brief facts of the case are as follows: That on 161h February 2017 at 21:45 hours at Vwawa Kati area, the appellant together with other six persons invaded the grocery of one Neema Gidion Shega (PW1) armed with iron bars, sticks and machetes. The said Neema was at the bar with her husband and other customers. In that invasion, the appellant and his com pany robbed the people at the Page 1 of 7 bar including PW1, cash money and cellular phones. The appellant, one Fred Angetile Sambo and one Moses Obet Kamwela were arrested and arraigned before the District court. They were convicted and sentenced to serve 30 years im prisonm ent. Apart from the custodial sentence they were also ordered to pay com pensation to the victim s for the stolen money and to pay two injured persons com pensation for medical treatment. The amount was however not stated in the judgm ent. Aggrieved by the decision, the appellant, through the services of Mr. Victor Mkumbe, learned Advocate, filed this appeal on two grounds to wit: 1. That the trial lower court erred in law and fact in holding that the appellant was properly and sufficiently identified at the scene of crime without explaining in the judgment as to how the appellant was allegedly identified when three prosecution witnesses i.e. PW I (at line 6 from the bottom of page 12 of the proceedings), and PW3 (at line 14 from the top of page 22 of proceedings), and PW4 (at the last sentence of page 26 of the proceedings) unequivocally testified that the attackers were wearing face hiding masks (mizura) to hide their faces. 2. That the trial lower court erred in law and fact in holding that the prosecution had proved the case against the appellant beyond all reasonable doubt relying on the clothes the robbers had put on at the material time. Page 2 of 7 When the hearing of the appeal was called to order, Mr. Mkumbe had not yet arrived at the Court. The appellant then insisted that the matter proceed to hearing in the absence of his advocate. He however, did not make any oral subm ission and instead he prayed for the Court to adopt the grounds of appeal as his submission. Ms. Tengeneza, learned State Attorney for the respondent, therefore had to reply to grounds of appeal in the appellant’s petition of appeal. She argued collectively on both grounds. Ms. Tengeneza argued that the evidence adduced in the trial court was strong and proved the case beyond reasonable doubt. She said that the evidence of PW1, PW2, PW3, and PW4 states on how the appellant was identified at the crime scene. She argued that even though the event occurred at night, the evidence shows that there were electric lights providing enough light. She contended that there was also proximity between the appellant, his fellow criminals and the witnesses and there was conversation between them. She added that PW1 and PW2 stated that they knew the appellant before the event and that PW2 and the appellant are relatives. She argued further that the appellant in his testimony also adm itted that he was related to PW2. Ms. Tengeneza further argued that the appellant and his fellow criminals did not cover their faces during the event. She referred to page 13 of the proceedings w hereby PW1 explained the clothes the appellant wore on that day which were a red T-shirt, dark blue trousers and a long black coat. She said that these clothes were also identified by PW2, PW3 and PW4 who saw the appellant running from the crime scene. Sh§ Page 3 of 7 contended that the identification was water tight and met the criteria provided in the case of Waziri Am ani v. Republic [1980] TLR 250 and the trial court’s conviction was based on identification evidence. Ms. Tengeneza disputed the appellant’s averment that the witnesses stated that he had put on face mask at the crime scene. She argued that what the witness stated was that the appellant and his fellow criminals wore “m izura ” which is a type of cloth that covers the head only and not the face. She concluded that on these bases the prosecution proved its case beyond reasonable doubt. She prayed for the Court to confirm the trial court’s conviction and sentence. Mr. Mkumbe who arrived late, when Ms. Tengeneza was making her submission on behalf of the respondent, made a very short rejoinder. He submitted that they still stand on what was stated in the grounds of appeal. He said that the so called “m izura” is special apparel which covers the face and the same was not defined well by the trial court. After considering the argum ents from both sides, I find that the appeal centres on the identification of the appellant by the prosecution witnesses. That is, w hether there was proper identification of the appellant or not. The contention lies on the definition of the type of clothing named “mizura ” in Kiswahili. While the appellant and his advocate claim that “mizura" is a kind of hut covering the face “face m ask,” Ms. Tengeneza for the respondent contends that it is a kind of hut that covers the head only and not the face. Mr. Mkumbe in his rejoinder faulted the^trial./ Magistrate for not defining what “mizura " was. Page 4 of 7 I have gone through the trial court records and found that at no point in time the definition of the said clothing “mizura" was contested by the parties necessitating the court to settle a position on what it exactly meant. It shall therefore be incorrect to fault the trial magistrate at this appellate stage for not defining what “mizura ” meant while the same was not an issue in the trial court. Besides, PW1 in her testim ony stated that she knew the appellant and the other robbers from before the incident whereby the appellant is related to her husband. She also stated that there was enough light from electric lights and they even had a conversation with the robbers including the appellant before they were injured and robbed. At page 16 of the typed proceedings, PW1 stated that she identified all the robbers by face. PW2 also testified that he knew the appellant from before as they are related. At page 18 of the typed proceedings he testified that he managed to identify the robbers because there was enough light from electrical bulb and the robbers did not hide their faces. PW3 who was a custom er at PW1 and PW 2’s bar during the invasion also testified almost sim ilar facts. In his judgm ent, the trial Magistrate pointed out that the accused persons did not dispute what was testified but rather denied generally to have been at the crime scene on the particular date. Considering the testimonies of the eye witnesses I find that the trial Magistrate reached a correct conclusion that the appellant and his fellow robbers were properly identified. I say so taking into account that the identification was by recognition. In Nebson Tele vs. The Republic, Crim inal Appeal no. 419 of 2013 the Court of Appeal of Tanzania (CAT) at page 5 stated: Page 5 of 7 " 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 before, mistakes cannot be ruled out." In the case of Jum apili Msyete vs. Republic, Crim inal Appeal No. 110 of 2014, the CAT, at page 14 & 15, provided on the factors to be considered in evidence by recognition. The Court stated: “Thus, in recognition cases, the foundational evidence would be how the victim came to know the suspect. Assistive evidence would include, the time of the day the incident happened, the type and intensity of the light etc. which enabled the victim to ascertain the identity of the suspect. Corroborative would consist of say, the suspect being found in possession of the victim's property stolen in the course of theft; or naming the suspect at the earliest." In the case at hand, PW1 and PW2 knew the appellant as he is related to them, particularly PW2. PW1 also stated that in the afternoon of the fateful day she met the appellant wearing sim ilar clothes he wore during the incident. The clothes she mentioned were red-t-shirt and a dark blue trouser, only that during the incident he added a long black coat which was open at the front enabling her to recognise the inside clothes he wore in the afternoon. PW1, PW2, and PW3 explained the intensity of the light that there was enough light from electric bulbs in the bar room and that the appellant and other robbers were closer to them and even conversed with them. They all explained that the appellant and his fellow robbers attem pted to kill PW2 by forcing him to take a concoction of poison after noting that they were identified. Page 6 of 7 Taking all the facts as stated above into consideration I find that the trial court correctly reached a conclusion that the appellant and his fellow robbers were properly identified by the witnesses at the crime scene and the case was proved beyond reasonable doubt by the prosecution side. I therefore uphold the trial c o urt’s conviction and sentence in its entirety. Appeal dismissed. Dated at Mbeya this 31st day of Me ) L. M. GELLA JUDGE 31 /03/2020 Court: Judgm ent delivered at Mbeya in Chambers on this 31st day of March 2020 in the presence of the appellant appearing in person and Ms. Sara Anesius, learned State Attorney for the respondent. L. JUDGE 31 /03/2020 \Rig hf o f Appeal t o t h e C A T h a s 1 ^e-n duly explained >L L. Vli^MQN GELLA JUDGE 31 /03/2020 Page 7 of 7