CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA ( CORAM: JUMA. C.J.. WAMBALI. J.A.. And MAIGE. J.A.^ CRIMINAL APPEAL NO. 202 OF 2022 FADHILI SILVESTER...................................................... .1st APPELLANT EMMANUEL MICHAEL CHENGE .................................... 2nd APPELLANT VERSUS THE REPUBLIC................................................................. RESPONDENT (Appeal from the decision of the Resident Magistrate Court of Mwanza at Mwanza) (Ndvekobora. SRM Ext. Jur.^ dated the 7th day of June, 2022 in R.M. Criminal Appeal No. 37 of 2021 JUDGMENT OF THE COURT 26th February & 5th March, 2025 MAIGE. J.A.: The appellants together with three other persons whom were acquitted, were arraigned before the District Court of Ilemela (the trial court) for the offence of armed robbery contrary to section 287A of the Penal Code. The offence was allegedly committed on 4th April, 2020 at Kayenze Ndogo Area within Ilemela District in the City and Region of Mwanza (the centre). Peter John, a retail trader at the centre, was the victim of the crime. During trial, he testified as PW2. He said, on the material day at around 02:00 hours, he was at home sleeping. Suddenly, a gang of five thugs pretending to be members of the police force, invaded his house and knocked the door. After he had refused to open the door, they broke into the house and demanded money from him and he gave them TZS 120,000.00. That aside, the said thugs assaulted him with an iron bar on his head such that he became unconscious. He was taken to hospital and when he came back home after recovery, he discovered that his flat television screen make aborder, radio subwoofer and its speaker, two bed sheets, one jean and one mobile phone make Itel together with a cash of TZS 400,000.00 had been stolen. It would appear that, Juma Bunzali (PW4), the victim's neighbour, heard some noises from the residence of the victim when the incident was taking place and sensed of there being something wrong. He, therefore, conveyed the information to the OCS of Igombe Police Station, Assistant Inspector of Police Ramadhan Mussa Lukebo (PW1). PW1 testified that when he was informed as such, he sent some police officers to the scene of the crime who found PW2 there with injuries and right away, rushed him to Karume Health Centre. They also advised him to report the incident to the police which he did and his statement taken wherein he named the appellants to be among the suspects. Basing on that disclosure, the first appellant was arrested on 6th April, 2020 and the second appellant on 12th April, 2020. On being interrogated, the first appellant confessed committing the offence and disclosed that he had sold the television to Paskazia Ndoma (PW3) and the radio to Shaaban Saulo Msukuma (PW5). The said items were seized and a certificate of seizure filled in (exhibit PI). They were as well, received into evidence as exhibit P2. Notably, both PW3 and PW5 confirmed to have bought the items from the first appellant on 4th April, 2020 at 02:00 hours and 11:00 hours, respectively. PW1 testified further that, in view of the nature of the offence, the file was subsequently transferred to Kirumba Police Station where F. 2214 D/CPL Maige (PW6) recorded the cautioned statement of the first appellant (exhibit P4) and E. 5406 D/CPL Patrick (PW7) of the second appellant (exhibit P5). Worth of a note is the fact that exhibit P5 was admitted upon an inquiry being conducted as the second appellant made a plea of repudiation. G. 12716 D/C Makori was the police officer who investigated the crime. He said, when the second appellant was brought at Kirumba police station on 12th June, 2020 and interrogated by PW7, he confessed committing the offence. He as well, named Alphonce, Pereus and Elisha, to be among the suspects. They were subsequently arrested and their cautioned statements taken which were admitted as exhibits P6, P7 and P8, respectively. During trial, Alphonce was the second accused, Pereus the fourth accused and Elisha the third accused. In their defence, just as it was for the three persons whom were acquitted, the appellants denied commission of the offence. The first appellant (DW1) claimed that he was on 6th April, 2020, approached by some militiamen and taken to Bukombe Police station on understanding that he was going to bail out his relative who was in police custody. On reaching there, he was surprised to see that he was being held up in connection to the offence in question. The second appellant (DW5) testified that, he was arrested on 12th June, 2020 while at Igombe Mwaloni for an offence of unlawful consumption of narcotic drugs. That, after undergoing urine test at the office of the Government Chemist, he was found positive. He said, he was caused to sign a document whose contents he did not know and subsequently, found himself charged with an offence which he did not know. In its judgment, the trial court placed reliance on the visual identification evidence of PW2 as corroborated by the evidence of PW1 that, on the same date of the incident, PW2 reported to the police and named the appellants as suspects and that, upon his arrest, the first appellant gave information to the police which led to discovery of the properties stolen during the incident. It did not at all consider the evidence in the confessional statements in exhibits P4, P5, P6, P7 and P8 or either of them. Having believed such piece of evidence and satisfied itseif that it was free from any possibility of mistaken identity, the trial court convicted the appellants and sentenced them to 30 years imprisonment each. However, as the evidence on visual identification did not point to the other accused persons, they were forthwith acquitted. On an appeal which was presided over by a Senior Resident Magistrate with Extended Jurisdiction stationed at the Resident Magistrates' Court of Mwanza, (the first appellate court), the appellants' convictions and sentences were upheld. Stiil believing that they were incorrectly convicted, the appellants have initiated a second appeal to the Court faulting the two courts below for not taking into account that: the visual identification evidence used to convict them was not water tight; the properties claimed to have been robbed at the scene of the crime were not properly identified; and the case was not proved beyond reasonable doubt. In the conduct of the appeal, the appellants were unrepresented. When called upon to address us on the merit or otherwise of the appeal, each of them fully adopted the grounds in the memorandum of appeal and urged us to determine the appeal in consideration thereof. The respondent Republic was represented by two learned State Attorneys namely; Ms. Jaines Kihwelo and Ms. Hellena Mabula. In support of the first ground, Ms. Kihwelo submitted that, contrary to their 5 complaint, the appellants were correctly identified by PW2 at the scene of the crime as his evidence eliminated all possibilities of mistaken identity. She assigned five reasons. One, the appellants were well known to the victim as he used to see the first appellant at Igombe and the second one at Ziwani. Two, at the scene of crime there was sufficient light from electric bulb which enabled the victim to identify the appellants. Three, the victim stood at a close range to the appellants to the extent that they were able to assault him by an iron bar. Four, there was conversation as the appellants demanded money from the victim which he paid. Five, the victim disclosed the identity of the appellants to PW4 at the earliest possible time which as per the principle in Fred Mathias Marwa v. R (Criminal Appeal No. 136 of 2020) [2022] TZCA 317 (3 June 2022, TANZLII) assured the credence of such evidence. She submitted that, much as under the principle in Waziri Amani v. R [1980] TLR 250, visual identification evidence would not be relied upon to sustain conviction unless all possibilities of mistaken identity are eliminated, such guidelines were not, as held in Kenedy Ivan v. R, Criminal Appeal No. 178 of 2007 (unreported), meant to be exhaustive. Each case, she submitted, must be decided according to its own merit. In respect to the identification of the properties allegedly stolen at the scene of crime, it was Ms. Kihwelo's submission that the same were, as per the evidence, identified by mark "P". In addition, she submitted, the recovery of the respective items from PW3 and PW5 was based on information volunteered by the first appellant as per exhibit P4. In relation to the complaint that the case was not proved beyond reasonable doubt, it was her argument that all elements of the offence of armed robbery were proved in evidence and the appellants did not raise any useful defence as to cast any reasonable doubt. Their defence, she submitted, was based on mere general denial which as per the principle in Nelson Onyango v. R (Criminal Appeal No. 49 of 2017, TANZLII) [2020] TZCA 71 (27 March 2020) is the weakest defence. We shall start our deliberations with the first complaint as to whether or not the appellants were correctly identified by PW2 at the scene of the crime. In his evidence, PW2 claims to have identified them by their first names. Though the evidence of PW2 is absolutely silent if at al! he reported the incident to the poiice or any other person and named the appellants as suspects, the evidence of PW1 suggests that, PW2 reported the incident on the same day having been advised to do so by the police officers who went at the scene of the crime after the incident under his instructions. The names of the said policemen have, however not been disclosed in his evidence. Equally so, for the name of the police officer to whom PW2 made his statement. More to the point, while PW1 claims that the appellant was arrested by a police officer under his instruction, the name of the said police officer is not disclosed. We wonder, in the absence of such evidence, how would the arresting police officer link the first names of the appellants with their identities considering that there could be many persons in the centre with the names of Fadhili and Emanuel. Therefore, dealing with more or less similar issue, we said in In Joseph Njasii v. Rv Criminal Appeal No. 330 of 2016 [2018] TZCA 2008 (8 December, 2018, TANZLII) that: 7/7 essence, to recognize a person by a single name amounts to guess work o f the identity of such person; this has no room in criminal trials." In here, PW1 claimed that, they were able, through the description of such first names, to recognize the appellants and arrange for their arrests because they were known to them. No plausible explanations were given as to how possible was it for PW1 or the said unnamed police officers to identify the appellants by just their first names. We have considered that, throughout his evidence, PW2 does not give description of the appellants' physique, size and attire which assisted him to identify them at the scene of the crime. In such a situation, therefore, evidence from the police of the morphological appearances of the appellants or any other special identities which assisted them to connect such first names with the appellants was crucial. In this regard, the following statement of the erstwhile East Africa Court of Appeal in R. v. Mohamed Bin Alhui [1942] EACA 72 is pertinent: 'That in every case in which there is a question as to the identity o f the accused\ the fact o f there having been a description given and the terms of description are matters of highest importance of which evidence ought always to be given: first ail, of course, by the person or persons who gave the description and purport to identify the accused, and then by person or persons to whom the description was given." Ms. Kihwelo has submitted that the appellants were correctly identified because the evidence of PW2 reveals that there was sufficient light from electric tube lights which enabled him to identify the appellants. With respect, her submissions is not well founded on evidence. We note that, in his evidence, PW2 claimed that nI managed to identify the two accused persons since by that time there was still electric power light in my house" In our view, such a bare assertion could not assist the trial court to ascertain if there was sufficient light that could enable the witness to correctly identify the suspect. Dealing with a similar issue, we said, in the case of Issa s/o Mgara @Shuka v. R, Criminal Appeal No. 37 of 2005 (unreported) which was quoted in Godfrey William @ Matiko and Another v. R. (Criminal Appeal No. 304 of 2022) [2022] T7CA 403 (8 July 2022, TANZLII) that: "In our settled mind, we believe that It is not sufficient to make bare assertions that there was light at the scene of crime. It is common knowledge that lamps be they electric bulbs, fluorescent tubes, hurricane lamps, wick lamps, lanterns, etc give out light with varying intensities. Definitely, light from a wick lamp cannot be compared with light from a pressure lamp or fluorescent tube. Hence the overriding need to give in sufficient details on the intensity of the light and size o f the area illuminated. " In view of the foregoing, therefore, we agree with the appellants that the visual identification evidence on the basis of which they were convicted was not, as the law requires, watertight enough to eliminate all possibilities of incorrect identification. The learned State Attorney also submitted that, the fact that on the basis of the volunteered information from the first appellant the stolen property were discovered, on the same day from PW3 and PW5, was sufficient to link the appellants with the offence. With due respect, we are, for the main reason that, the respective properties were, contrary to the (aw, tendered into evidence by the police officer who claimed to have seized them (PW1) before there being description of their identities by the owner thereof or someone knowledgeable of the identities of such properties, unable to accept such submission. In our view, PW1 being not the owner of the properties or the person who was knowledgeable of the identities thereof, was not a competent witness to tender them into evidence. There are many decisions in support of this proposition. For instance, in Mustapha Darajani v. R (Criminal Appeal No. 242 of 2008) [2012] TZCA 232 (19 March 2012, TANZLII), it was held: "In such cases, description o f special marks to any property allegedly stolen should always be given first by the alleged owner before being shown and allowed to tender them as exhibits" A similar position was taken in Bundala s/o Mahona and Another v. R (Criminal Appeal No. 224 of 2013) [2014] TZCA 2141 (23 June 2014, TANZLII) where the items alleged to have been stolen were tendered by a police and the Court refused to place reliance on such evidence because in law it ought to have been tendered by the owner. If we can quote, the Court stated: "Also, those properties tendered as exhibit PI were not tendered in court by the alleged owner. The properties were tendered in court by PW1 who was not the owner. This was contrary to the holding in the case of Mustapha Darajani li (supra) and other decisions of this Court. For that reason, we feei it unsafe to rely on such evidence, because it is doubtfui as to whether they were the same properties like those aileged to have been stolen." Guided by the above principle, therefore, we find merit in the second ground of appeal and hold that it was wrong for the two courts below to place reliance on the said evidence in sustaining conviction of the appellants. Our holdings in respect to the first two grounds would sufficient to conclude in line with the last ground that, the case against the appellants was not proved beyond reasonable doubt. We understand however that, in her submissions, the learned State Attorney has placed reliance on the cautioned statements of the appellants as per exhibits P4 and P5. We have, however, expressed herein above that, the respective cautioned statements were absolutely ignored in the judgment of the trial court. We also note that the first appellate court declined to consider the said cautioned statements in its judgment on account that they were not the basis of the determination of the case at the trial court when it said: "After going through the trial court judgment, I have found nowhere the trial court talked anything about the cautioned statements in convicting the appellants. In other word, the caution statements were not among the basis o f convicting the appellants." In the appeal at hand, the relevancy or otherwise of the said evidence in the appellants' conviction has not been raised as the ground of appeal. No cross appeal in respect thereof has also been raised by the respondent Republic. In effect, therefore, and as we said herein above, it remains irrefutable that the substance of the respective pieces of evidence was not adjudicated upon by the two courts below. In law, therefore, this Court has no jurisdiction to deal with it. This position is well settled. See for instance, Kazimili Samwel v. R (Criminal Appeal No. 570 of 2016) [2020] 77CA 1751 (26 August 2020, TANZLII) where it was stated: "It is now settled law that uniess it is on point of law, a matter not raised in first appellate court cannot be raised and entertained in a second appellate court like this one. See for Abdul Athuman v. Republic [2004] TLR 151 and Samwel Sawe v. Republic\, Criminal Appeal No. 135 o f 2004, Ramadhani Mohamed v. R e p u b lic Criminal Appeal No. 112 o f 2006, Sadick Marwa Kisase v. Republic, Criminal Appeal No. 83 o f 2012, Richard Mgaya and Sikubali Mgaya v. Republic, Criminal Appeal No. 335 o f2008, (all unreported), to mention but a few." In view of the foregoing reasons, we find that the case against the appellants was not proved beyond reasonable doubt and we allow the appeal. Consequently, we quash the convictions and set aside the sentences imposed against the appellants. We further order for their immediate release from custody unless therein withheld for other lawful reasons. DATED at MWANZA this 28th day of February, 2025. I. H. JUMA CHIEF JUSTICE F.L.K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL The Judgment delivered this 5thday of March, 2025 in the presence of appellants in person and Ms. Jaines Kihwelo, learned State Attorney for the Respondent/Republic vide video link from High Court of Tanzania at Mwanza, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 14