frank john libanga lampard another vs republic 2021 tzca 146 29 april 2021

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LILA, J.A.. MWANPAMBO, J.A. And KEREFU. J J U CRIMINAL APPEAL NO. 55 OF 2019 FRANK JOHN LIBANGA @ LAMPARD.................... .......I®!-APPELLANT OPOMAL PETER MKINGA @ NGOSHA...... ...................2nd APPELLANT VERSUS THE REPUBLIC.............. ..............................................RESPONPENT (Appeal from the Judgment of the High Court of Tanzania at Par es Salaam) (FeieshLJL) dated the 1st day of October, 2015 in Criminal Appeal No. 8 of 2015 JUDGMENT OF THE COURT 23rd & 29th April, 2021. KEREFU. J.A.: This is a second appeal by FRANK JOHN LIBANGA @ LAMPARD and ODOMAL PETER MKINGA @ NGOSHA, the appellants herein who were arraigned before the District Court of Temeke atTemeke in Criminal Case No. 644 of 2010. In that case, the appellants (who were the 4th and 7th accused, respectively) with eight others, namely; Mrisho Idd Hamis (1st accused), Abel Kilwa Mbata (2nd accused), Henry Mussa Tindwa (3rd accused), Peter Ernest Kitosi (5th accused), Geofrey Isdori Nyasio (6th accused), Peter Alen Moyo (8th accused), Said Shaban Mpangile @ Side Boy (9th accused) and Godfrey Ezekiel Kikambako (10th accused) who are not parties to this appeal, were charged with three counts. The first count was on conspiracy to commit an offence contrary to sections 384 and 385 of the Penal Code, Cap 16 of the R.E. 2002 (the Penal Code). It was alleged that, the appellants together with the said eight others on unknown date, time and place within the city of Dar es Salaam conspired to commit an offence of armed robbery. The second count was on the offence of armed robbery contrary to section 287A of the Penal Code. It was alleged that on 11th March, 2010 at around 03:00 hours at Chamazi, Temeke District within the city of Dar es Salaam, the appellants together with five others stole a motor vehicle make Toyota Land Cruiser, silver in colour with Registration No. T.862 AZM and chassis number KZJ 950099181 valued at TZS 28,000,000.00, one piece of television make Samsung valued at TZS 800,000.00, one piece of computer make Hitachi valued at TZS 450,000.00, one piece of mobile phone make blackberry valued at TZS 1,000,000.00, one piece of mobile phone make Samsung valued at TZS 400,000.00, two pieces of silver chain valued at TZS 200,000.00 and two pieces of gold chain valued at TZS 31,140,000.00 the properties of Rosemary Shija Kasuka and immediateiy before stealing they used a matchet, piece of iron bar, and axe to threaten her in order to obtain the said properties. The third account was on the offence of gang rape contrary to section 130 (i) of the Pena! Code. It was alleged that the appellants and five others on 11th March, 2010 at around 03:00 hours at Chamazi, Temeke District within the city of Dar es Salaam, had canal knowledge of Rosemary Shija Kasuka without her consent. The appellants denied the charge laid against them and therefore, the case had to proceed to a full trial. To establish its case, the prosecution marshalled a total of seven witnesses and tendered nine exhibits. The appellants relied on their own evidence as they did not call any witness. In a nutshell, the prosecution case found on the record of appeal stated that, on 10th March, 2010 in the evening when Rosemary Shija (PW2) the victim returned home, she found her house in order and her dogs were fine. She ate super and went to sleep. Later, at about 02:00 hours PW2 heard a door at the sitting room opened and footsteps were coming up stairs towards her bed room and the door of her bedroom was hit with a heavy object. She tried to open a rear door to escape but she failed. PW2 went on to state that the light was on and she saw five people entering into her bedroom, one was holding a rod, one holding a panga and another one holding a heavy iron bar. PW2 testified that one of them tied and pushed her down and ordered her to surrender all the money. PW2 started yelling and told them to release her so that she could give them the said money. She then told them that she had no money but they threatened to kill her if she would not give them the money. PW2 stated that four of them went down stairs. A moment later, PW2 heard yelling of her house girl, after a short time, they returned and ordered her to release all her jewels and motor vehicle keys. She gave them the motor vehicle keys, three of them raped her and went away. PW2 testified further that, she then opened the window and saw the robbers broke the gate by using her motor vehicle and drove off. PW2 said that they took her gold chain, mobile phone and the computer. PW2 narrated the incident to her neighbours and the matter was reported to Chamazi Police Post where she obtained a PF3 and went to the hospital for medical examination. On 7th April, 2010 PW2 was informed by central police that some of the suspects were arrested in connection with the incident and she was required to identify them. PW2 went to Stakishari Police Station where an identification parade was organized and she managed to identify the first appellant and the 6th accused person. PW2 testified further that, on 30th April, 2010 she was informed by the police that other suspects were arrested and was required to identify them. PW2 said that, in that parade she managed to identify the 8th accused person. Again, on 4th July, 2010 PW2 was informed that her motor vehicle was seized and she was required to identify it together with the person who was found in possession of the same. PW2 testified that she went to the police station and identified the said motor vehicle and the 9th accused person. Lastly, on 5th July, 2010 PW2 was called to identify more suspects who were arrested and she identified the 10th accused person. PW2 testified further that prior to the said incident she knew the 1st, 2nd and 3rd accused persons as they were her employees. PW2 tendered the motor vehicle Registration Card which was admitted in evidence as exhibit P2. The report of the identification parade conducted on 7th April, 2011 by Inspector Vernon (PW3) was admitted in evidence as exhibit P3. The testimony of Agnes Ezekiel (PW4) in respect of her encounter with the appellants dovetailed, in many aspects, with that of PW2. She however added that, at the scene of crime, she was also raped by the three robbers and the 9th accused person grabbed her mobile phone and took TZS 40,000.00 from her. She also added that on the next day she went to the hospital together with PW2 for medical examination. The Medical examination was conducted by Dr. Efrahim Mrema (PW7) on 11th March, 2010, PW7 tendered the PF3 and other medical files which were admitted in evidence as exhibits P6, P7, P8 and P9, respectively. F. 5712 DC Nehemiah (PW1) the investigation officer testified that he was involved in the investigation of the incident and arrested the 9th accused person with the stolen motor vehicle. PW1 tendered the said motor vehicle which was admitted in evidence as exhibit PL D2379 D/SGT Salum (PW5) interviewed the first appellant and recorded his cautioned statement which was admitted in evidence as exhibit P4. In their defence, all accused persons denied any involvement in the alleged offence. However, after a full trial, the appellants were found guilty, convicted on the two counts of conspiracy and armed robbery. They were thus each sentenced to serve thirty years imprisonment. The rest were all acquitted. Aggrieved, the appellants unsuccessfully appealed to the High Court where the trial court's conviction and sentence were upheld. Still undaunted, the appellants have preferred the present appeal. In the memorandum of appeal, the appellants have raised nine (9) grounds which can conveniently be paraphrased into the following grounds of complaints; one, that, the cautioned statement of the first appellant was un-procedura!ly tendered and admitted in evidence; second, that, the visual identification of the first appellant was weak and the identification parades were not properly done; third, that the first appellate court applied double standard in acquitting other accused persons and maintaining the appellants7 conviction based on the same uncorroborated evidence and fourth, that the prosecution case against the appellants was not proved to the required standard. When the appeal was placed before us for hearing, the appellants appeared in person through video conference linked to Songea Central Prison without legal representation whereas the respondent Republic was represented by Ms. Janethreza Kitaly, learned Senior State Attorney assisted by Ms. Nancy Mushumbusi, learned State Attorney. Upon being given an opportunity to amplify on the grounds of appeal, the appellants opted to initially hear the submission of the learned Senior State Attorney but they reserved their right to rejoin, if need to do so would arise. Responding to the appeal, Ms. Kitaly expressed her stance that she is supporting the appeal on the first and second grounds. Starting with the first ground, Ms. Kitaly referred us to page 44 of the record of appeal and readily conceded that the cautioned statement of the first appellant was not read out in court to the appellants after its admission. She argued that the position of the Court befalling the failure to read out the contents of an exhibit immediately after its admission is to expunge it from the record. To buttress her proposition, she referred us to the case of Rasul Amir Karan @ Juma and 3 Others v. Republic, Criminal Appeal No. 368 of 2017 (unreported) and urged us to expunge the first appellant's cautioned statement from the record. It was her argument that after expunging the said exhibit from the record there is no other evidence linking the second appellant with the offences he was charged with, as he was only implicated in this case after being mentioned by the first appellant in that exhibit. On the second ground, Ms. Kitaly argued that the first appellant was not properly identified due to the contradictory account of the prosecution witnesses on that aspect. To clarify on this point, Ms. Kitaly referred us to pages 24 and 25 of the record of appeal and argued that PW2, the prosecution's eye witness at the scene of crime did not give proper descriptions of the accused persons, such as their attire and any special marks or symbols which enabled her to identify them. She added that, since the first appellant was not known to PW2 prior to the incident, PW2 was expected to give further descriptions on how she managed to identify him to avoid any possibility of mistaken identity. Ms. Kitaly argued further that since 8 the incident happened at night, PW2 was also expected to explain the intensity of the light and the time the incident took to enable her to identify the culprits. Ms. Kitaly also argued that, although PW2 testified that she managed to identify the first appellant during the identification parade conducted on 7th April, 2010, PW3 who organized the said parade testified that, on that particular date, PW2 identified only the 6th and 8th accused. She further referred us to the identification parade register/form (exhibit P3) filled by PW3 and argued that, the same does not contain the name of the first appellant. She said, in that regard, the first appellant was not among the people involved in that parade, to be identified by PW2. It was her argument that the evidence of visual identification given by PW2 cannot be said to be absolutely watertight. To bolster her proposition, she cited cases of Scapu John and Lipi Shaha v. Republic, Criminal Appeal No. 197 of 2008 (unreported) and Rasul Amir Karan @ Juma and 3 Others (supra) and then concluded that, since the testimony of PW2 the prosecution eye witness was weak on the visual identification of the first appellant, the remaining evidence could not have any weight to corroborate it. On the basis of her submission, Ms. Kitaly urged us to allow the appeal, quash the conviction and set aside the sentence imposed against the appellants and release them from the prison. In their brief rejoinder, the appellants did not have much to say other than supporting what was submitted by Ms. Kitaly and they also urged us to allow the appeal and set them at liberty. We should state at the onset of our determination that this being a second appeal, the Court will rarely interfere with concurrent findings of fact made by the courts below. The exceptions to the rule are when the findings are perverse or demonstrably wrong and occasioning miscarriage of justice. This position was well stated in Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] TLR 149; Mussa Mwaikunda v. Republic [2006] TLR 387 and Wankuru Mwita v. Republic, Criminal Appeal No. 219 of 2012 (unreported). Specifically in the latter case the Court stated that: - "... The law is well-settled that on second appeal, the Court will not readily disturb concurrent findings o f facts by the trial court and first appellate court unless it can be shown that they are perverse, demonstrably wrong or clearly unreasonable or are a result of a complete misapprehension o f the substance, nature or non-direction on the evidence; a violation o f some principle o f law or procedure or have occasioned a miscarriage o fjustice." 10 Therefore, in determining this appeal, we shall be guided by the above principle. Starting with the first ground, we wish to point out that, we agree with Ms. Kitaly that the cautioned statement (exhibit P4) by the first appellant was un-procedurally handled by the trial court as was not read out to the appellants after being cleared for admission. We have as well noted that even other documentary exhibits such as P2, P3, P5, P6, P7, P8 and P9 were all not read out to the appellants after their admission in evidence. This was a fatal irregularity as emphasized in the case of Robinson Mwanjisi and Others v. Republic [2003] TLR 218 where the Court stated among other things 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 out..." In our considered view, the essence of reading the respective exhibits is to enable the accused person to understand what is contained therein in relation to the charge against him so as to be in a position of making an informed and rational defence. Thus, the failure to read out the documentary exhibits was a fatal irregularity as it denied the appellants an opportunity of knowing and understanding the contents of the said exhibits. In Shabani 11 Hussein Makora v Republic, Criminal Appeal No. 287 of 2019, the Court reiterated the essence of reading out exhibits immediately after being cleared for admission in the following terms: - "It is settled law that, whenever It is intended to introduce any document in evidence, it should be admitted before it can be read out Failure to read out documentary exhibits is fatal as it denies an accused person opportunity of knowing or understanding the contents o f the exhibit because each party to a trial be it criminal or civil, must in principle have the opportunity to have knowledge o f and comment on all evidence adduced or observations filed or made with a view to influencing the court's decision." Therefore, in the case at hand, since all documentary exhibits P2, P3, P4, P5, P6, P7, P8 and P9 were not read out to the appellants after admission they all deserve to be expunged from the record as we hereby do. Having expunged all documentary exhibits from the record including the first appellant's cautioned statement, the question to be answered is whether there is another evidence to support the charges against the appellants. We are mindful of the fact that, the trial Magistrate found the charge proved beyond reasonable doubt against the second appellant based on the cautioned statement of the first appellant as reflected at pages 163 - 164 of the record of appeal where the trial court concluded that: - 12 "The 4 h accused was at the scene o f crime, also seventh accused person Odoma! s/o Peter Mkinga @ Ngosha, 31 years have NO any means to escape from LIABILITY that also he was at the scene o f crime although he wasn't identified by any o f the prosecution side witnesses but due to the cautioned statement o f the 4h accused person, this seventh accused cannot escape...1 have nothing to add. Seventh accused was at the scene o f crime and this is the one who caused the fourth accused to commit this offence because according to the cautioned statement o f the fourth accused person, he was not aware with this duty as they call it." It is also on record that even the first appellate court also arrived at a similar conclusion as reflected at page 193 of the same record. In the circumstances and taking into account that the second appellant was only linked in this case after being mentioned by the first appellant in the said statement, we agree with Ms. Kitaly that after expunging the said statement, there is no any other evidence on record capable of connecting the second appellant with the offences he was charged with. In this regard, we find merit in the first ground of appeal. On the issue of visual identification of the first appellant, we think it is pertinent that we refer to the guidelines on visual identification as stated in 13 the famous case of Waziri Amani v. Republic [1980] TLR 250 where the Court gave the word of caution at pages 251 - 252: - "...evidence o f visual identification; as Courts in East Africa and England have warned in a number o f cases, is o f the weakest kind and most unreliable. It follows therefore, that no court should act on evidence o f visual identification unless ail possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight" [Emphasis added]. Then, at page 252, the Court went on to state the following conditions to be taken into account: - "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 not be said to have properly resolved the issue unless there is shown on the record a careful and considered analysis o f all the surrounding circumstances o f 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 14 witness knew or had seen the accused before or not These matters are but a few o f the matters to which the triai Judge should direct his mind before coming to any definite conclusion on the issue o f identity. "[Emphasis added]. Applying the above guidelines to the instant case, we are without any hesitation, of the view that the evidence of PW2, who was the prosecution eye witness and the sole identifying witness, was weak and contradictory with that of the PW3 who conducted the identification parade. As submitted by Ms. Kitaly, the incident occurred at night and PW2 who was at the scene of crime gave a general description of the culprits and she never mentioned the first appellant to be among those people who invaded her house. It is also significant that the first appellant was complete stranger to PW2 as he was not among the accused person she claimed to know prior to the incident as at page 25 of the record of appeal she testified that: - "I identified those five persons, there was enough light in my room. I also know the 1st, 2nd and J d accused as they were working with me." In the circumstances, we are in agreement with the learned Senior State Attorney that the first appellant was not properly identified by PW2 at the scene of crime to rule out the possibility of mistaken identity, As for the identification parade, it is clear that PW2 and PW3 gave two contradictory statements. At page 25 of the record of appeal, PW2 testified 15 that she identified the first appellant in the identification parade conducted by PW3 on 7th April, 2010. However, at page 32 of the same record, PW3 testified that on that particular date, PW2 identified only the 6th and the 8th accused. We have also scrutinized exhibit P3 on the names of people who were lined up and involved in that parade. It is evident that the first appellant was not among the people involved in the identification parade conducted by PW3 on 7th April, 2010. In the circumstances, we agree with Ms. Kitaly that, by any means, PW2 could not have identified the first appellant on that particular date as she claimed. On the basis of the reasons stated above, we are of the settled view that had the trial court and the first appellate court properly scrutinized the evidence of PW2 which was the only evidence of identification, it would have found that such evidence was not watertight. In the circumstances, we agree with the appellants that their conviction was based on insufficient evidence of identification. As such, we find merit in the second ground of appeal. Since the findings on the first and second grounds of appeal suffice to dispose of the appeal, the need for considering the other grounds of appeal does not arise. 16 In the event we allow the appeal. The conviction of the appellants is hereby quashed and the sentence imposed on them by the trial court and upheld by the High Court are hereby set aside. Consequently, we order for immediate release of the appellants from prison unless they are being held for some other lawful causes. DATED at DAR ES SALAAM this 28th day of April, 2021. S. A. LILA JUSTICE OF APPEAL L. S. MWANDAMBO JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL The Judgment delivered this 29th day of April, 2021 in the presence of the appellants in person via video conference for Songea Central Prison and M/s Ashura Mnzava, learned State Attorney for the respondent/Republic is hereby certified as a true copy of the original.