CRIMINAL APPEAL NO 109 OF 2022 HAMIS RAMADHAN SAID VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MKUYE. J.A.. MWAMPASHI. 3.A. And MURUKE. J.A.I CRIMINAL APPEAL NO. 109 OF 2022 HAMIS RAMADHAN SAID.................................................... .................. APPELLANT VERSUS THE REPUBLIC..................................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Dar es Salaam) (AgathQ, JQ dated the 30th day of June, 2021 in Criminal Appeal No. 251 of 2020 JU D G M EN T OF THE CO U R T 22ndApril& 20* May, 2024 MKUYE. 3.A.: The appellant, Hamis Ramadhani Said was charged and convicted by the District Court for Ilala District with the offence of armed robbery contrary to section 287A of the Penal Code, Cap 16. Upon the conviction, he was sentenced to imprisonment for thirty years. Aggrieved by the trial court's verdict, he unsuccessfully appealed to the High Court. Still undaunted, he has now appealed to this Court. The facts leading to this appeal are as follows: On 28/4/2017 at around midnight, the complaint, Paul Mbai Mleka (PW1) (the victim), having watched a football match at New Africa Hotel, was heading home. He proceeded to his car he had parked near Holiday Inn Hotel along Jamhuri Street. As he was about to open the door, four people emerged from behind and one of those people held him by his neck at a knife point while others ransacked his pockets. When the ordeal came to an end, the culprits had made away with his money amounting to TZS 17,000.00 and a mobile phone of make J7 Samsung worth TZS 710,000.00. The complainant shouted for help and security guards who stood watching the incident came to his aid and informed the victim that one of the culprits (the appellant) was known to them. The security guards revealed to him that the appellant was known for committing thefts in that area. Then, they exchanged phone numbers so that when the suspect culprit resurfaced the victim would be informed. The matter was then reported to the police. Luckly enough, upon passing a few days, the culprit was spotted and the victim was informed who also notified the police who arrested him. Upon arraignment and conclusion of the trial, the trial court was convinced that the identification of the appellant was watertight. As hinted earlier on, this finding was left undisturbed on appeal to the High Court. The appellant has fronted to this Court nine grounds of appeal which can be paraphrased as follows: 1) That, the Identification was not w atertight 2) That, the intensity o f tight and the distance from the source o f iig h t were not explained. Neither was the appellant named at the earliest possible opportunity. 3) That, the appellant's identification was dock identification as no identification parade was conducted. 4) That, the appellants conviction was based on cooked and fram ed up evidence from PW2, PW3, PW 5 and PW6. 5) That, the appellant's conviction was based on m alicious and suspicious evidence o f PW2, PW3, PW 5 and PW6, 6) That, there was no proof o f existence o f the alleged m obile phone as no purchasing receipt was tendered neither was its IM EI num bers identified. 7) That, the defence evidence was never evaluated, analyzed discussed and sufficiently considered resulting into m iscarriage o fjustice. 8) That, there was nothing to show that the victim Paul Mnake named by PW4 was one and the same person as Paul Mbai Mtake appearing in the charge. 9) That, the case was not proved beyond reasonable doubt. When this appeal was called on for hearing, the appellant appeared in person without representation whereas Mses. Gloria 3 Mwenda, learned Senior State Attorney and Theresia Mtao, learned State Attorney both appeared representing the respondent Republic. On being called upon to elaborate his grounds of appeal, the appellant adopted his memorandum of appeal and urged the Court to consider them with a view to releasing him from prison. On the other side, Ms. Mwenda prefaced her submission by declaring her stance of supporting both the conviction and sentence meted against the appellant. She took off by arguing that grounds nos. 4, 5 and 6 are new and that this Court under Rule 72 (2) of the Tanzania Court Appeal Rules, 2009 (the Rules) is precluded from entertaining those grounds since they were not heard and determined by the High Court. She contended that the Court could have been seized with that jurisdiction had the said new grounds of appeal were on points of law. To fortify her argument, she cited to us the case of Daniel John Mwakipesile v. Republic, (Criminal Appeal No. 449 of 2019) [2022] TZCA 582 (28 September 2022 TANZLII). The appellant had no comment and, understandably so, he being a lay person could not have much on matters of law. Regarding the issue that grounds 4, 5 and 6 are new as they were not canvassed at the first appellate court, we think, the law is now well settled. This Court has no jurisdiction to entertain the grounds which are basically on factual matters, and not based on matters of law, which were not dealt with by the first appellate court. This stance was taken in times without number in a plethora of cases including in the famous case of Hassan Bundala @ Swaga v. Republic (Criminal Appeal No. 386 of 2015) [2015] TZCA 261 (23 Februar/ 2015 TANZLII, where the Court, when faced with akin scenario, stated as follows: "It is now settled that as a m atter o f general principle this Court w ill only look into m atters which came up in the low er court and were decided, not on m atters which were not raised or decided by neither the tria l court nor the High Court on appear. See also: Elisa Mosses Msaki v. Yesaya Ngateu Matee [1990] T.L.R 90; and Godfrey Wilson v. Republic (Criminal Appeal No. 168 of 2018) TZCA 109 [2019] (6 May 2019 TANZLII). In this case, after having examined the grounds of appeal which were lodged by the appellant at the first appellate court and compared with grounds 4, 5 and 6 in the instant appeal, we are in agreement with Ms. Mwenda that the said grounds are, indeed, new as they were not dealt with by the first appellate court. Moreover, they are based on factual matters which this Court cannot entertain them at this stage as per the dictates of section 6 (7) of the Appellate Jurisdiction Act Cap 141 R.E. 2019. But again, the Court cannot fault something not decided by first appellate court as per Rule 72 (2) of the Tanzania Court of Appeal Rules, which provides for the manner the memorandum of appeal should set forth the grounds of objection to the decision appealed against specifying, in case of a first appeal, the points of law or fact and, in the case of any other appeal, the points of law which are alleged to have been wrongly decided - See also Daniel John Mwakipesile (supra). Since the law prohibits us to entertain such grounds of appeal, we hereby disregard them. The learned State Attorney went on arguing other grounds of appeal in the following order; grounds 1, 2 and 3 together and then grounds 7, 8 and 9 separately. In grounds nos. 1, 2 and 3, the appellant's complaint is on identification that it was not water-tight as the victim did not explain the intensity of light that enabled him to identify his assailant. Neither did he explain the distance where the light was. The learned State Attorney contended that among the six witnesses who testified for the prosecution, four witnesses explained how they saw the incident and 6 identified the appellant. Ms. Mwenda explained that PW1, for instance, explained how he was attacked and that there was electricity light, She added that, PW1 also explained the duration of the incident which was about 10 -15 minutes and that he was able to identify the appellant as they faced each other. She went on to submit that, PW3 explained on how there were six bulbs on the wall which illuminated sufficient light. Apart from that, she contended, PW2 and PW3 knew the appellant even before the incident and that according to the two witnesses' evidence they watched the incident at the distance of about 10 to 20 paces. She added that although PW6 did not mention his name, he identified him properly. She referred us to the case of Waziri Amani v. Republic (1981) TLR 250 to bolster her argument. On the need of conducting identification parade, she dismissed such proposition arguing that it would not have served the purpose since PW1 saw the appellant not only on the date of incident but also on the date he was arrested on 1/5/2017. We are mindful of the fact that this Court has in times without number emphasized the need to consider with great caution the evidence of visual identification - See: Waziri Amani (supra) and Said Chally Scania v. Republic (Criminal Appeal No. 69 of 2005) [2007] TZCA 180 (16 March 2007 TANZLII). 7 In this case, we note that the evidence on visual identification came from PW1, PW2, PW3, PW4, PW5 and PW6. PW1 who was the victim testified that he identified the assailant through electric light. He did not, however, explain the brightness of light and where it was located from where he was observing. PW2 said, he identified the appellant due to electricity light from tubes lights and that the incident took about 15 minutes. The intensity of light was not stated though he also said that he had known the robbers before the incident (watoto watundu). PW3 testified that while at a distance of 20 metres from the scene of crime, he identified the appellant through electricity light from tube lights which were not explained as to their size or intensity. As for PW4 who was an investigator of the case, he seems to have not even inquired about the intensity of light from the witnesses. What he gathered from his investigation was that there was electricity light. PW5 who was a coffee seller, testified to have identified the appellant whom he knew as a car washer through electricity light but he did not explain its brightness. As for PW6 (sungusungu) he said, he saw the incident when the victim was attacked and identified the appellant as a car washer. Nothing was said in relation to light which enabled the identification. 8 One thing which is notable from the witnesses is that, although all testified that there was electricity light, their evidence did not come vividly as to the intensity of the said light. We say so because, most of them seemed to observe the incident while they were at a certain distance from the scene of crime. Nevertheless, it is clear that the incident took place near Holiday Inn Hotel and according to PW1, the watchmen at that hotel did not respond to the incident as they were on duty/ at work. PW1 said after giving description of his assailant they recognized him to be the appellant and exchanged phone numbers with PW1 so that when he resurfaces, they would inform him for necessary action. The evidence has revealed that, when the appellant resurfaced, the said Holiday Inn Hotel watchmen called PW1 who reported to the police leading to the appellant's arrest. However, strangely enough none of the Holiday Inn watchmen who facilitated the appellant's arrest was called to testify in court and no reason for failure to call them was stated. As it is, there is no link between the prosecution witnesses and those who facilitated the appellant's arrest. We think, these were material witnesses and as the incident took place at their area of work could have unveiled more information on what led them to recognize him through the description that was given to them by PW1. 9 We are mindful of the settled principle of law that the prosecution is under a prima facie duty to call those witnesses who from their connection with the transaction in question are able to testify on material facts. If such witnesses are within reach but are not called without sufficient reason being shown the court may draw an inference adverse to the prosecution - See: Alhaji Ayubu @ Msumi and Others v. Republic (Criminal Appeal No. 136 of 2009) [2010] TZCA 20 (18 March 2010) TANZL1I and Abdallah Kondo v. Republic (Criminal Appeal No. 322 of 2015) [2016] TZCA 836 (28 September 2016 TANZLII). Relying on the above cited cases/ this, in our view, entitles us to draw adverse inference that if they were called, they would have given evidence against the prosecution. Another issue which has perturbed us is that it took quite a long time for the appellant to be taken to court after he had been arrested. According to PW1, the appellant was arrested on 1/5/2019 after being informed by the Holiday in Hotel watchmen that he was seen in that area while the incident took place on 28/4/2017. That was only three days after the incident. The appellant said, he was arrested together with others on 2/5/2017 at Ferry area where he was selling ice cubes on suspicion that 10 they dealt with narcotic drugs (bhang). That, he was asked to give the police TZS. 300,000.00 so that they could release him but he had none. He stated that, he stayed at the police station until on 2/6/2017 when he was taken to court. This fact is confirmed by the charge sheet at page 1 of the record of appeal showing to have been dated 2/6/2017 and admitted and assigned Hon. Kiyoja RM on the same date and that is when he was arraigned in court for the first time. Our question is that if he was arrested in connection with armed robbery on 3/5/2017 why did it take such long to arraign him in court. In our view, it raises doubt in so far as the issue of identification is concerned. On the appellant's complaint that, an identification parade ought to have been conducted to enable the victim (PW1) identify the appellant, we think that it would have had no impact since the appellant had seen him after he was arrested and was involved in the process of his arrest after being notified by the watchmen and informed the police to arrest him. It would have made sense if he had only seen him at the time of incident alone. Be it as it may be, in the totality of what we have discussed, we find that the identification of the appellant was not watertight. We, thus, allow grounds nos. 1, 2 and 3. li This takes us to the ground no. 7 that the appellant's defence case was not considered. The learned State Attorney is of the view that it was considered as the trial court observed that the accused's mere denial of the offence against the overwhelming prosecution evidence had no merit. However, on our part, we do not agree with her in the circumstances of this case. The record bears that, indeed, the trial court failed to consider the appellants defence case. Unfortunately, even the first appellate court, may have fallen into the same trap, and perhaps so, because of the nature of the grounds of appeal which were presented before it, which may not have raised such an issue. In such a situation, since this ground is raised to this Court for the first time, this Court is enjoined to step into the shoes of the first appellate court and consider the defence case and come up with its own conclusion. In our view, as we have endeavoured to discuss the appellant's defence evidence when discussing grounds 1, 2 and 3 above particularly on the issue of being arrested on 1/5/2019 and arraigned before the court after a period of almost a month, we are settled in our mind that the appellant managed to raise doubt in the prosecution evidence which need to be resolved in favour of the appellant. 12 Regarding the variance in names of the victim as to whether Paul Mnake as mentioned by PW4 (investigator) was the same as Paul Mbai Mlake appearing in the charge sheet, Ms. Mwenda dismissed it being baseless. It was her contention that much as the appellant did not object to it, but that variance could happen due to passage of time. She was of the view that, even if there is such a variance, it was minor as it did not go to the root of the matter. She made reliance on the case of Daniel John Mwakipesile (supra) where the Court while adopting the case of Evarist Kachembeho and Others v. Republic, (1978) L.R.T No.70, stated as follows: "Human recollection is not infallible. A witness is not expected to be right in m inute details when retelling his story". See also Issa Hassan Uki v. Republic, (Criminal Appeal No. 129 of 2017) [2018] TZCA 361 (9 May 2018); Emmanuel Lyabanga v. Republic (Criminal Appeal No 257 of 2019) [2021] TZCA 152 (29 April 2021 TANZLII); Alex Ndendya v. Republic (Criminal Appeal No 207 of 2018) [2020] TZCA 202 (6 May 2020 TANZLII); and Deus Josias Kilala @ Deo v. Republic (Criminal Appeal No 191 of 2018) [2020] TZCA 1809 (8 October 2020 TANZLII). In this case, we agree with both sides that, indeed, the record bears that there was a variance in naming the names of the victim. Whereas in the charge sheet as shown at page 1 of the record of appeal, the victim is referred to as Paul Mbai Mleka, in his testimony, PW4 at page 24 of the record, referred him as Paulo Mnake. However, as was submitted by Ms. Mwenda, this could have happened due to passage of time and so PW4 could not remember minute details of the victims' names at the time he testified in court. In any case, we observe that there some resemblance in the names though not perfectly referred depicting that it was the same person. In this regard, we are of the view that such discrepancy in the names of victim was minor as it did not go to the root of the matter. We therefore, find this ground to have no merit and we dismiss it. With regard to ground no. 9 challenging the proof of the case, Ms Mwenda was of the view that the case was proved to the standard required of beyond reasonable doubt. On our side, we go along the appellant's proposition that prosecution case was not proved beyond reasonable doubt on the basis of what we have discussed earlier on in grounds nos. 1, 2, 3 and 7. In the final analysis, in view of the foregoing discussion, we find that the case was not proved beyond reasonable doubt and therefore 14 allow the appeal, quash the conviction, set aside the sentence imposed on the appellant and order for his immediate release from custody unless otherwise held for other lawful causes. Order accordingly. DATED at DAR ES SALAAM this 20th day of May, 2024. R. K. MKUYE JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Judgment delivered this 20th day of May, 2024 in the presence of the appellant in person/unrepresented and Ms. Mossie Kaima, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original.