CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: SEHEL 3.A.. KITUSL J.A. And MAIGE. J.A.^ CRIMINAL APPEAL NO. 188 OF 2021 SEIF OMARY NGWATA @ KAZOLE/BABU.............................1st APPELLANT JACOB SIMON MBUKWA.................................................... 2nd APPELLANT LAZARO VENANCE SINKAMBA............................................ 3rd APPELLANT IBRAHIM ANYAWILE KIBONA @ IBRA................................4th APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Mambi, J.) dated the 24th day of March, 2021 in DC. Criminal Appeal No. 156 of 2019 JUDGMENT OF THE COURT 10th & 17th July, 2024 SEHEL, J.A.: In the District Court of Momba sitting at Chapwa (the trial court), the appellants, Seif s/o Omary Ngwata @ Kazole/ Babu, Jacob s/o Simon Mbukwa, Lazaro s/o Venance Sinkamba and Ibrahim s/o Anyawile Kibona @ Ibrahim (hereinafter to be referred to as the 1st, 2nd, 3rd and 4th appellants respectively) were jointly and together charged and convicted of the offence of armed robbery contrary to section 287A of Page 1 of 19 the Penal Code. They were sentenced to a statutory punishment of thirty (30) years imprisonment each. In this count, they were also jointly and together charged with Alex s/o Amon Ngasala @ Alex Manguruwe (hereinafter to be referred to as the 3rd accused person) who was acquitted by the trial court. Further, the 1st and 2nd appellants were jointly and together charged and convicted of the offence of gang rape contrary to section 131A (1) and (2) of the Penal Code. They were sentenced to life imprisonment each. The sentences of the 1st and 2nd appellants were to run concurrently. On a separate count, the 3rd accused person was charged with an offence of receiving stolen property contrary to section 311 of the Penal Code but he was also acquitted by the trial court. The appellants appealed before the High Court of Tanzania at Mbeya (the first appellate court). It was partly allowed as the charge of gang rape was found not proven against the 1st and 2nd appellants but the conviction and sentence for the offence of armed robbery was upheld. The appellants have now come to this Court, on the second appeal. Before embarking on the appeal, we find it apt to narrate the facts leading to this appeal, albeit briefly. They go thus: Page 2 of 19 The prosecution alleged before the trial court that, on 27th January, 2018, around midnight, at Majengo Mapya street in Tunduma Township within Momba District in Songwe Region, the appellants together with the 3rd accused person jointly and together stole one mattress make Banko, one TV make Samsung, one laptop make Toshiba, three blankets, twenty bedsheets, ten pairs of African print wraps commonly known as 'vitenge', ten pairs of shoes, one suit, one cellular phone make Samsung, one handbag, two CRDB bank cards, one charger of DSTV, different types of receipts of different items, the properties of Wema d/o Christopher Pela, and immediately before and after stealing, did assault one Anipha d/o Kulanga by using a machete on different parts of her body in order to obtain and retain the said properties. It was further alleged that, after the commission of the armed robbery, on the same date, month, year and time, the 1st and 2nd appellants had carnal knowledge to AK, aged 20 years without her consent. On 16th January, 2018, Wema Christopher (PW2) travelled to Iringa to attend a funeral of her in-law. Almost ten days after her departure, that is, on the night of 27th January, 2018 at around 02:00hrs, a robbery incident took place at her home situated at Majengo Mapya area in Tunduma township. On that night, her house helper, one Page 3 of 19 Anipha Kulanga (PW1) together with PW2's two children were at home sleeping. PW1 was awakened by robbers' movements. In an instant, the robbers invaded her room. They demanded money from her but she told them that she had none. They asked to be shown PW2's room which she did. The robbers broke down the door and went in. They went away with various items belonging to PW2 and to the children. They took one laptop, one hand bag, blankets, bedsheets and a pair of woman's shoes. They also went away with a TV make Samsung which was in the sitting room and robbed PWl's mobile phone make Samsung. Two of the robbers remained behind. They forcefully took PW1 to the children's bedroom, undressed her underwear and raped her, one after another. Thereafter, they disappeared. As it was late at night, PW1 waited till sunrise then she went to their neighbours to report the incident. The neighbours informed PW2 who immediately returned home and found her house was ransacked by the robbers. PW1 was escorted to Tunduma Police Station where she was issued with the PF3 and went to Tunduma health centre for medical examination. Dr. Adrana Kundebya Biseko (PW3) examined her and observed that her vagina had bruises and sperms. He recorded his Page 4 of 19 findings in the PF3 which was tendered and admitted in evidence as exhibit P2. Upon receipt of the complaint, the police officers started their investigation. In the course of the investigation, H. 8763, Detective Corporal (D/C), Mkeni (PW5) received an information from an informer that the 2nd appellant was involved in the robbery. The 2nd appellant was arrested on 8th February, 2018. Upon interrogation, he admitted to have participated in the robbery incident and mentioned the 1st, 3rd and 4th appellants. His confessional statement was recorded by G. 4463 D/C Elibarik (PW15) which was tendered and admitted in evidence as exhibit P ll. On that same date, that is, on 8th February, 2018, Leonard s/o Modestus Kazimzuri (PW4), the Justice of Peace, recorded his extra judicial statement which was also admitted in evidence as exhibit P18. The 1st appellant was arrested on the same day and his cautioned statement which was recorded by G. 2640 D/C Pascal (PW9) was admitted in evidence as exhibit P8. His extra judicial statement which was recorded by PW4 was also admitted in evidence as exhibit P3. The 1st and 2nd appellants' houses were searched by the Assistant Inspector of Police (ASP) Nickson Philipo Mwesigwa (PW16) in the Page 5 of 19 presence of PW2 and Jenipha d/o Beltini Ngusa (PW20), the co-tenant of the 2nd appellant. In the 1st appellant's house, the police seized therefrom three mattresses, one pair of woman's shoes with red colour and pieces of vitenge. In the 2nd appellant's house, the police seized one six-by-six feet king size mattress, one flat screen TV, two bedsheets, one non-flat screen TV, one decker, one subwoofer and a charger of DSTV. Search and seizure certificates were admitted in evidence as exhibit P12 and P13 respectively. The seized items were also admitted in evidence by PW2 as exhibit PI. On 8th March, 2018, the 3rd appellant was arrested at Iyunga area in Mbeya City after he was traced through the stolen mobile phone which he was using. PW5 testified that, he was told of the mobile line number of the victim which was 0758 570430 and that number helped him to make a follow up with the cybercrime unit. The unit managed to secure the IMEI number of the stolen mobile phone which was 359891061520500. Further, it discovered that, the handset was used by the robbers to call PW2 by using two different numbers registered in the name of Jenipha d/o Kipiki, the wife of the 3rd appellant. The search and seizure certificate together with two mobile phones make TECNO and Itel were collectively admitted in evidence as exhibit P6. The 3rd Page 6 of 19 appellant's cautioned statement that was recorded by F. 1470 D/CPL Adonic (PW12) was also admitted in evidence as exhibit P10. PW4 also tendered his extra judicial statement and admitted in evidence as exhibit P4. The 3rd appellant mentioned the 4th appellant who was arrested on 8th March, 2018 at Tunduma township. According to the evidence of PW5, in the house of the 4th appellant, he retrieved one pillow case which was identified by PW2. The 4th appellant's confessional statement was recorded by Assistant Inspector of the Police (A/INSP) Gipson Simon Tawale (PW17). It was tendered and admitted in evidence as exhibit P16. His extra judicial statement which was recorded by Sifa s/o Jacob Kabisa (PW8), the Justice of Peace, was also admitted in evidence as exhibit P7. In their defence, they all denied any involvement in the charged offence. They testified that the case was fabricated against them and prayed to be acquitted. As aforesaid, they were each convicted and sentenced to serve a term of thirty (30) years imprisonment. In this second appeal, the appellants had earlier filed a joint memorandum of appeal raising four grounds, and later, on 5th July, Page 7 of 19 2024, they jointly filed a supplementary memorandum of appeal comprised of seven grounds. Essentially, the grounds of appeal raise the following four issues; one, the identification of the appellants was not water tight as it failed to meet the principle set in the case of Waziri Amani v. The Republic [1980] T.L.R. 250, two, the identification parade was improperly conducted as it contravened Police General Orders Number 232, three, the cautioned and extra judicial statements of the appellants were improperly admitted as they were not read over to the appellants and an inquiry was not conducted as it was held in the case of Robinson Mwanjisi & 3 Others v. The Republic [2003] T.L.R. 218 and four, the defence case was not considered by the two courts below. At the hearing of the appeal, the appellants appeared in person, unrepresented, whereas Mr. Simon Peres, learned Senior State Attorney, appeared for the respondent Republic. When the appellants were invited to argue the appeal, each of them opted to adopt the grounds of appeal and urged the Court to set them free from the prison custody basing on the grounds of appeal they raised. Page 8 of 19 The learned Senior State Attorney begun his submission by declaring his stance that he was supporting the appeal on two-fonts, one, the identification of the appellants was not watertight, and two, the documentary evidence was wrongly admitted in evidence. Expounding, on his stance, Mr. Peres argued that, the documentary exhibits, namely; the cautioned and extra judicial statements of the appellants (exhibits P3 to P18), were admitted in evidence without first being cleared for admission, and after being admitted, they were not read over to the appellants. He, therefore, urged us to expunge these documentary exhibits from the record of appeal. He referred us to the case of Robinson Mwanjisi & 3 Others v. The Republic (supra) cited by the appellants. Having considered the submissions of the learned Senior State Attorney and reviewed the record of appeal, we observed that the convictions of the appellants were based on the confessional statements they made before the police officers. Admittedly, in terms of section 27 (1) of the Evidence Act, a confession made to a police officer is admissible and may be proved against an accused person, if it is proved that it was voluntary and lawfully recorded in accordance with the provisions of the CPA. The onus of proving that any confession to a Page 9 of 19 police officer was made voluntarily lies on the prosecution and never shifts to the accused person. This is the import of section 27 (2) of the Evidence Act. It is in that respect, in the case of Twaha Ali & 5 Others v. The Republic, Criminal Appeal 78 of 2004) (unreported), we observed that: "... it is not the iaw that there is a presumption that a confession or statement was not made voluntarily until the contrary is proved. On the contrary it will be presumed to have been voluntarily made until objection to it is made by the defence on the ground that it was not so or that it was not made at ahetc. I f that objection is made after the trial court has informed the accused o f his right to say something in connection with the alleged confession, the trial court must stop everything and proceed to conduct an inquiry (or trial within trial) into voluntariness or not o f the alleged confession. Such an inquiry should be conducted before the confession is admitted in evidence." In the present appeal, the appellants objected to the admission of their cautioned and extra judicial statements but the trial court proceeded to admit them in evidence without conducting an inquiry to Page 10 of 19 satisfy whether they were voluntarily made in terms of section 27 (2) of the Evidence Act. The record of appeal shows that when PW9, PW15, PW12 and PW16 were about to tender the cautioned statements of the 2nd, 3rd and 4th appellants respectively, the appellants raised objections. At page 113 of the record of appeal, the 2nd appellant objected that his statement was not freely made; at page 102, the 3rd appellant repudiated his statement as he said he signed a blank paper in front of a female police officer not PW12 and at page 127, the 4th appellant objected that his cautioned statement was not freely made. All these objections were overruled by the trial court and the cautioned statements were admitted in evidence without conducting an inquiry as required by the law. In the same way, when PW4 was about to tender the extra judicial statements of the 1st and 3rd appellants, the 1st appellant repudiated it while the 3rd appellant claimed that he was threatened by the police officers. The 4th appellant also repudiated the statement when PW8 wished to tender it in evidence. Despite the objections, the trial court proceeded to admit the extra judicial statements without conducting an inquiry. Accordingly, we entirely agree with Mr. Peres that, the failure to conduct inquiry by the trial court which was not corrected by the first Page 11 of 19 appellate court was fatal and highly prejudiced the appellants. In the circumstance of the present appeal, we are constrained to expunge exhibits P3, P4, P7, P l l and P16 from the record of appeal. Furthermore, when exhibit P9, the cautioned statement of the 1st appellant was about to admitted in evidence, the 1st appellant objected that it was recorded beyond the prescribed period of eight hours. The cautioned statement is found at pages 216 to 221 of the record of appeal. It shows that, the interrogation started at 08:00hrs and ended at 10:00hrs, and that, on the same date, the 1st appellant made additional statements. The additional statement does not show the times when the interview was commenced and completed. This is contrary to the dictates of section 57 (2) (e) of the CPA. Since the statement was obtained without adhering to the procedure laid down under section 57 (2) (e) of the CPA, we are satisfied that it was wrongly admitted in evidence. We proceed to expunge exhibit P8 from the record of appeal. We also observed that the statement of the 2nd appellant, exhibit P18 did not support the prosecution case. In his statement, the 2nd appellant admitted to have committed a robbery incident on 27th October, 2018 in half London area in Tunduma and not at PW2's Page 12 of 19 residence as alleged by the prosecution. Even, the items stolen are different from the ones listed in the charge sheet. Having expunged the documentary exhibits which were the basis of the appellants' convictions, we asked ourselves whether there is any other evidence in the record of appeal connecting the appellants with the offence of armed robbery that occurred in the night of 27th January, 2018. Mr. Peres contended that, there is evidence of PW1 who claimed to have identified the 1st and 2nd appellants by the aid of the electricity light. However, this witness failed to give detailed description of the robbers despite the fact that she had ample time to observe them. He added that, even the identification parade was not properly conducted because there was no prior description of the robbers for PW18 to organize a proper identification parade. To fortify his argument, he referred us to the case of Omary Hussein @ Ludanga & Another v. The Republic (Criminal Appeal No. 547 of 2017) [2021] TZCA 543 (30 September, 2021; TANZLII). It is a cardinal principle of law that no court should act on visual identification unless all the possibilities of mistaken identity are Page 13 of 19 eliminated and that the evidence on conditions favouring correct identification is absolutely watertight. This position was stated by the erstwhile East African Court of Appeal in Abdallah bin Wendo & Another v. Rex (1953) 20 E.A.C.A. 116 and later on followed by this Court in the celebrated case of Waziri Amani v. The Republic (1980) T.L.R. 250. We entirely agree with Mr. Peres that the evidence of visual identification of PW1 was not water tight. We say so because, in her testimony, PW1 alleged that she managed to identify her rapists at the scene of crime on the night of 27th January, 2018 by the aid of an electricity light which was on before she was raped. Nonetheless, the record of appeal shows that, at the time the robbers invaded the house, PW1 and the children were all asleep in PWl's room. PW1 was awakened by the robbers' movements and noticed that the robbers switched on the lights in the sitting room and the ones at the corridor. In her testimony, she did not mention the lights in the children's room. In that respect, it is not clear as to who switched on the lights in the children's room where PW1 was moved to by the robbers and raped therein. Given that the visual identification of PW1 was not water tight, we find that the two courts below rightly disregarded this evidence. Page 14 of 19 Besides, if PW1 was truly able to identify the 1st and 2nd appellants, it was expected of her to give detailed description in terms of the physique, stature, complexion, attire or any other peculiar mark or identity to the neighbours where she first went to seek assistance or to the police where the crime was reported. Such description would have enabled PW18 to conduct an identification parade. In the case of Omary Hussein @ Ludanga & Another v. The Republic (supra), we emphasized that, before one can identify a suspect in the identification parade, he must give description of such person prior to identifying him. This Court has held without number that, for the identification parade to be of any value, the identifying witness must have given a detailed description of the suspect - see: the case of Adriano Agondo v. The Republic Criminal Appeal No. 29 of 2012 (unreported). It follows then that the identification parade conducted by PW18 together with the two identification parade registers which were tendered and admitted in evidence as exhibit P17 collectively had no evidential value to the prosecution case. Accordingly, we disregard them. In his conclusion, Mr. Peres argued, and we entirely agree with him, that, the remaining evidence of PW2, PW5, PW16 and PW20 did not connect the appellants with the charged offence. Page 15 of 19 Essentially, the evidence of PW5 was confined to the arrest of the 1st, 2nd and 3rd appellants. Although PW5 testified that he was informed of the mobile number but he did not disclose anywhere as to who gave him such information. This is because PW1 said nothing of her mobile phone number. In any event, we noted that, the arrest of the 2nd appellant was due to the information received by the police from their informer. Besides, the charge sheet shows that the mobile phone which was stolen from PW1 was Samsung while the ones which were seized by D/Cpl. Bashary, PW6 from the 3rd appellant and his wife were Itel and TECHNO. Therefore, the retrieved mobile phones are not the subject of the charged offence and they were not mentioned by PW1. The prosecution also relied on various items allegedly seized from the houses of the 1st and 2nd appellants. The evidence shows that PW16 conducted search in the houses of the 1st, 2nd and 3rd appellants. The said search was witnessed by PW20, an independent witness. In that search, items seized were three mattresses, a pair of woman's shoes with red colour, pieces of vitenge, one six-by-six feet king size mattress, one flat screen, two bedsheets, one non-flat screen TV, one decker, one subwoofer and the charger for a DSTV. All these are common items of which prosecution had a duty to prove that they were positively Page 16 of 19 identified to be the properties of PW2. However, PW2 failed to explain how she was able to relate these common items with the ones stolen and subsequently mentioned in the charge sheet. In the case of Ally Bakari @ Another v. The Republic [1992] T.L.R. 10, we stated in clear terms that: "... for a proper application o f the doctrine o f recent possession, that the stolen thing in the possession o f the accused must have a reference to the charge laid against the accused. That is to say that; the presumption o f guilt can only arise where there is cogent proof that the stolen thing possessed by the accused is the one that was stolen during the commission o f the offence charged, and, no doubt; it is the prosecution who assumes the burden o f such proof, and the fact that the accused does not claim to be the owner o f the property does not relieve the prosecution o f that obligation/'[Emphasis added]. Accordingly, we find that the mobile phonesseized from the 3rd appellant and the items retrieved in the houses of the 1st and 2nd appellants were not positively proven to be stolen properties of PW2. Page 17 of 19 There are also some procedural errors committed by the trial court when admitting the exhibits in evidence. For instance, the trial court did not itemize each and every item tendered by PW2 and admitted in evidence as exhibit PI. As such, it is not clear which items were received in evidence. That apart, the procedure for admitting the search and seizure certificates, exhibits P12 and P13 was also flawed as the documentary exhibits were not read over to the appellants after they were cleared for admission. As rightly submitted by Mr. Peres, it has been stated time and again by this Court that, documentary exhibits should first be cleared for admission before they are admitted and read over in court. For instance, in the case of Robinson Mwanjisi & 3 Others v. The Republic (supra) the Court said that: ”... whenever it is intended to introduce any document in evidence, it should first be cleared for admission, and be actually admitted, before it can be read o u t" [Emphasis added] Given the pointed-out anomalies, we are constrained to expunge exhibits PI, P12 and P13 from the record of appeal. Page 18 of 19 In view with what we have endeavoured to explain, we find that the appeal is meritorious and we allow it. Consequently, we quash the appellants' convictions and set aside the sentences thereof. We further order for the immediate release of the appellants from prison unless they are otherwise held for other lawful purposes. DATED at MBEYA this 16th day of July, 2024. B. M. A. SEHEL JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL The Judgement delivered this 17th day of July, 2024 in the presence of the Appellants in persons and Ms. Julieth Katabaro, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL Page 19 of 19