sabasaba enos joseph vs republic 2023 tzca 17442 21 july 2023

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA ( CORAM: LILA. 3.A.. FIKIRINI. J.A. And MURUKE. CRIMINAL APPEAL NO. 296 OF 2022 SABASABA ENOS JOSEPH........................................................... APPELLANT VERSUS THE REPUBLIC......................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Manvanda. 3.) dated 4th day of November, 2021 in Criminal Session No. 28 of 2017 JUDGMENT OF THE COURT 12th & 21st July, 2023 MURUKE, J.A.: The appellant Sabasaba Enos @ Joseph, together with Obeid Ntendete @ Katole, not in Court were charged with two counts of murdering a married couple on 19th February, 2005. It was alleged that they killed Joseph Kubona and Lucian Mpogoni at Nyamalulu "B" Village, Geita District, within Mwanza Region by then. Following orders of re-trial in Criminal Appeal No. 135 of 2015 and Criminal Appeal No. 411 of 2017, the appellant is once again i before this Court for the third time, prosecuting Criminal Appeal No. 296 of 2022, challenging his conviction and sentence meted on 4th November, 2021. Being dissatisfied, the appellant filed two grounds of appeal on 17th July 2022, namely: (1) That, the learned tria l judge grossly erred in law by convicting me basing upon a weak and unreliable evidence particularly the exact lig h t intensity, size o f the room and where the source o f lig h t was allocated on a fatefu l night. (2) That, the learned tria l judge erred in law by holding that the evidence adduced by the prosecution w itnesses proved the case beyond reasonable doubt. However, on 27th June, 2023, the appellants' advocate filed a supplementary memorandum of appeal with three grounds namely: (1) That, the tria l judge erred in law and fa ct by relying on unfavourable visual identification evidence to convict the appellant on offence o f murder. (2)That■ the tria l judge erred in law and fact fo r failure to consider that the appellant was im plicated in the inform ation of m urder only on strong suspicious prosecution evidence. 2 (3) That, as whole the inform ation o f m urder against the appellant was not proved beyond reasonable doubts. What really happened, is in the account of PW l's evidence, Martha Joseph (PW1), who at the time of the incident on 19th February 2005, she was 13 years of age, living with her parents (the deceased persons). On that day at around 15:00 hours, the appellant who is their relative came and took PW l's father, Joseph Kubona to the Village Centre for an offer of local liquor at a "pombe" shop. Later on, at around 8:00 pm, while PW1, was at their home with her mother, claimed to have seen the appellant in a company of his two friends. They stormed into their home in an unfriendly way. PW1 and her mother who was carrying her sibling on her back, entered their children's room. The appellant followed them and inquired on the whereabouts of PW l's father. PW l's mother replied that he was at Buserere. Then the appellant ordered PW l's mother to cover herself with "kitenge" she was wearing, but she refused. The appellant forcefully covered her with the "kitenge" on her face, then drugged her outside the house, leaving PW1 with other children inside. PW1 heard her mother trying to raise alarm, but prevented by 3 the appellant. Within no time, PW1 heard her father returning singing, immediately she heard his father trying to shout, followed with hulking sound, then snoring, followed with her mother shouting twice in agony, then both went silent. After few minutes of silence, the appellant entered PW l's room again and ordered her not to go out. She remained indoors until early morning of the following day, when she went outside and found both her parents dead with serious wound on their heads, surrounded with a pool of blood. While outside, the appellant arrived and looked at the deceased's bodies and asked PW1, if she identified the assailants. PW1 replied that she did not, fearing that the appellant would kill her. The appellant then went and reported to Charles Mwenelwa (PW2) who was the Village Executive Officer (VEO) of Nyamalulu Village. PW2 testified that, in the morning of 20th February, 2005, at about 06:00 hrs, the appellant knocked at his house and told him that Joseph Kubona, who was the appellant's paternal uncle, was murdered together with his wife, then left to his home immediately. PW2 went to the scene and found PW1 who explained to him the whole episode and mentioned the appellant. PW2 raised alarm and villagers gathered at the scene. He informed the Ward Executive Officer, who reported to Buckreef Police Station. Police went to the scene of crime and formally arrested the appellant, who by then already under arrest by the villagers. PW3 Prosper Albinus, a Police Officer stationed at Geita Police Station investigated the case, went to the scene of crime with a doctor who conducted an autopsy and prepared a post mortem report. He drew a sketch map of the scene of crime. The sketch map was admitted as exhibit PI and post mortem report as exhibit P2. In his defence the appellant who testified as DW1, was the only witness. He denied to have killed PW l's parents, insisting that he was at the forest at the time and date of the alleged murder. He spent the whole night cutting and processing his timber and returned home at 06:00 hours, and went straight to his brick making area in which PW1 went and told him about the death of her parents. He went to PW l's house and found dead bodies. He asked PW1 if she knew the assailants, but PW1 replied that she didn't know them. He reported to PW2 then returned to the crime scene together with PW2, raised an 5 alarm to which people responded and gathered. He was then arrested at the scene by villagers upon being mentioned by PW1. The learned trial judge was convinced with the prosecution evidence thus basing on the strength of PW l's evidence of visual identification and the appellant's conduct before and after the incident of murder convicted him and sentenced the appellant to suffer death by hanging. The trial judge particularly at page 109 of the record said: " Visual identification by PW1 is corroborated by the conducts o f the accused before the incident-f during the incident and after the incident. According to PW1, the accused visited th eir home and le ft with her father a t 15:00 hrs to pom be shop, but the accused returned a t the fatefu l hours and pretended to ask the whereabouts o f a person with whom he had le ft with". When this appeal came for hearing, Ms. Martha Mwandenya, learned Senior State Attorney, represented the Respondent (Republic), while Mr. Cosmas Tuthuru learned counsel, represented the appellant. 6 At the hearing of the appeal Mr. Cosmas Tuthuru commenced by seeking leave of the Court to add one ground of appeal from those filed earlier by the appellant himself to the supplementary memorandum of appeal he filed on 27th June, 2023. He submitted that, his client was convicted based on weak identification evidence of PW1, who used kerosine lamp. He raised the following doubts. One, PW1 did not explain the intensity of the light. Two, PW1 did not tell where the kerosine lamp was kept to be able to lighten the area. Three, PW1 did not state the size of the room for the kerosine lamp to be enough to lighten the room. Four, PW1 witnessed the incident at the age of 13 years and testified at 25 years old, passage of time should be considered as PW1 could fabricate evidence to accommodate the situation, bearing in mind she lost her two parents. Five, PW1 knew the appellant as he is her relative, knowing the appellant without description might lead to a mistaken identity. On the issue of conduct of the appellant, Mr. Tuthuru argued that there was no conduct that incriminated the appellant. The appellant reported the incident to PW2 and together they proceeded to the scene, and it is at the place that he was arrested. Incriminating conduct brought up by the trial judge, is therefore not supported by records, he argued. In totality, evidence that grounded the appellant's conviction was not enough and more so, full of contradiction, insisted the appellant's counsel, who then prayed for the appeal to be allowed, conviction be quashed and sentence be set aside and the appellant to be set free. On the other hand, the respondent's counsel arguing on the probity of visual identification, submitted that: one, the appellant was properly identified by PW1 with the aid of kerosine lamp. Two, PW1 was just three steps from where the appellant was. Three, she knew the appellant well before the incident. Ms. Mwandenya also submitted on incriminating conduct of the appellant, that: one, appellant came in the morning of the incident and asked PW1 whether she knew the assailants. Two, he did not raise alarm but went one kilometer away to report to PW2 instead of his neighbours around. Three, upon reporting he did not go with PW2 to the scene until called by him despite the alarm raised. 8 According to the respondents' counsel, the appellant was correctly identified and his conduct was inconsistence with innocence, thus the appeal should be dismissed for want of merits. In rejoinder Mr. Tuthuru, insisted on weak identification evidence by PW1. More so, the evidence of the appellant is that he reported the incident to PW2, then together they went to the scene, has not been contradicted by prosecution witnesses. To the appellant's counsel there is nothing to incriminate the appellant and pressed that the appeal be allowed. Having heard both partie's submissions, gone through the records of the trial court and grounds of appeal, issues that can be gathered from the grounds of appeal are: (1) W hether PW1 iden tified the appellant properly. (2) W hether the appellant's conduct before and after the incident was self-incrim inating. Before resolving the issues above, we wish to explore on evidence of visual identification. The principle on visual identification evidence is settled that it is the most weak and unreliable evidence and should not be acted upon unless the court satisfied itself that all 9 possibilities of mistaken identity are eliminated and the court is satisfied that the evidence is absolutely water tight. In our jurisdiction the case of Waziri Amani v. Republic [1980] TLR 250 remains a landmark case on visual identification. This case has uninterruptedly been followed by the courts. The case provided guidelines with sufficient lucidity on the evidence of visual identification. Guided by the cases of Republic v. Eria Sebwato [1960] E.A 174, Lezjor Teper v. the Queen [1952] A.C 480, Abdallah Bin Wendo and Another v. Republic [1953] 20 E.A.C.A 166, Republic v. Kabogo wa Nagungu [1948] 23 K.L.R(1)50 and Mugo v. Republic [1966] EA 124, the Court provided the following guidelines on visual identification: "Evidence o f visual identification is o f the w eakest kin d and m ost unreliable. No Court should A ct on evidence of visual identification unless a ll p o ssib ilities o f m istaken identity are elim inated and the Court is satisfied that the evidence is absolutely w ater tig h t." The Court added: "Although no hard and fa st rules can be la id down as to the m anner a tria l judge should determ ine 10 questions o f disputed identity; it seem s d ear 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 or all the circumstances of the crime being tried. We would, fo r exam ple, expect to fin d on record questions as the follow ing posed and resolved by hint; 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 witness knew or had seen the accused before or not These m atters are but a few o f the m atters to which the tria l judge should direct h is m ind before com ing to any definite conclusion on the issue o f identity". (Em phasis Added). In Marwa Wangiti Mwita & Another v. Republic [2002] TLR 39; this Court observed thus: "The a b ility o f a w itness to name a suspect a t the earliest opportunity is an im portant assurance o f h is reliability, in the sam e way as 11 unexplained delay or com plete failure to do so should p u t a prudent court to enquiry". This position of the law was restated in the case of Jaribu Abdallah v. Republic [2003] TLR 271 where the Court observed that: "In m atters o f identification it is not enough m erely to look a t factors favouring accurate identification, equally im portant is the cred ib ility o f the witness. The conditions fo r identification m ight appear ideal but that is not guarantee against untruthful evidence. The a b ility o f the w itness to name the offender a t the earliest possible m om ent is in our view reassuring though not a decisive factor": This position has been reiterated in various decisions of the Court amongst others Issa Mgara @ Shuka, Criminal Appeal No. 35 of 2005 (unreported) in which the Court observed that, it is not sufficient for the witness to make bare assertions that, there was light. It is common knowledge that lamps be they electric bulbs, fluorescent tubes, hurricane lamps wick lamps, latents, etc, give out light with varying intensities. Definitely, light from a wick lamp cannot 12 be compared with light from a pressure lamp or fluorescent tube. Hence the overriding need to give sufficient details on the intensity of the light and size of the area illuminated. In recognition cases where such evidence may be more reliable than identification of a stranger, clear evidence on the source of light, and its intensity is of paramount importance. This is because even in recognition cases mistakes are often made. In the case of Anael Sambo v. Republic, Criminal Appeal No. 274 of 2007 (unreported), it was held that the fact that a witness knew the suspect before that date is not enough. The witness must go further and state exactly how he identified the appellant at the time of incident, say by his distinctive clothing, height and voice. We are of the firm view that, evidence in every case where visual identification is what is relied on must be subjected to a careful scrutiny, due regard being paid to all prevailing conditions to see if, in all the circumstances there was really sure opportunity and convincing ability to identify the person correctly and that every reasonable possibility of error has been dispelled. There could be a mistake in the 13 identification notwithstanding the honest belief of an otherwise truthful, identifying witness, that is why caution should be taken. In matters of identification, it is not enough merely to look at the factors favouring accurate identification. Equally important is the credibility of witnesses. Favourable conditions for identification are no guarantee against untruthful evidence, (see Jaribu Abdallah v. Republic, (2003) TLR 271. The issue whether PW1 identified the appellant properly is the issue we are called upon to resolve. One, it is not disputed that, the appellant and PW1 knew each other as they are related. The fact that PW1 knew the suspect before that date is not enough. The witness must go further and state exactly how he identified the appellant at the time of incident. It was expected PW1, to give description on how she identified the appellant, by explaining his physical appearance, cloth that he wore on that day, and or voice recognition as they knew each other. This principle was stated by the Court in the case of Anael Sambo v. Republic, (supra). Two, PW1 testified to have identified the appellant by the aid of kerosine lamp that was available in the room where the appellant 14 followed them. However, PW1 did not tell where a kerosene lamp was placed to be able to lighten the room. Three, PW1 did not mention the size of the room for the trial court to determine whether kerosine lamp light sufficiently illuminated the room to enable PW1 to identify the appellant properly. Four, PW1 said that there was kerosine lamp that she used to identify the appellant without stating its intensity. Legally in visual identification evidence like the present one, issue of light, used in identifying, clear evidence must be given by the prosecution to establish beyond reasonable doubt that the light relied on by PW1 was reasonably bright to enable her to identify the appellant. Bare assertion by PW1 that there was kerosene lamp was not enough evidence to ground conviction based on visual identification during the night. Five, evidence of PW1 relied by trial court was of visual identification during the night where the persons entered the room in which PW1 and her mother entered in after seeing those people coming in hence observation was not free from error because PW1 15 was horified and terrified, thus possibility of a mistaken identity cannot be overruled notwithstanding the honest belief. The issue of the appellant's conduct raised on page 109 of the record of appeal by the learned trial judge and relied on by the learned State Attorney during the hearing of the appeal is not backed by the record. Even assuming it is backed by the record, which is not the case, yet, that evidence alone cannot ground conviction once we have discredited PW l's evidence on visual identification. More so the appellant's testimony on page 59 of the record of appeal has not been contradicted. For appreciation of our observation DW l's account is reproduced herein below: 7 returned in the early m orning about 06.15 hours then went to a place where bricks wee been made then m y siste r came and to ld me that there was problem a t their home. My siste r is called Martha Joseph. The problem she said is that her father was stabbed to death. I found the body o f m y paternal unde (baba m dogo) she said that she d id n 't know the assailants. I chose to report to the Village Executive O fficer (VEO) Charles Mwenelwa 16 PW2. I went with the VEO to the crim e scene, a m ultitude o f people gathered and a report was made". That being the case, then issue of appellant going in the morning and asking PW1 whether she has identified the assailant, is answered in the negative. The record bears out that DW1 went to report to PW2 and together they went to the scene. Likewise, the contention that he did not respond to the alarm, is not supported as the appellant was present when PW2 raised alarm and neighbours gathered. The appellant was arrested while at the scene and was not followed by PW2. It is not unusual for relatives to visit each other and offer any assistance. When the appellant went to pick PW l's father for offer of "Pombe", PW1 did not tell the trial court whether his father resisted or any family member was curious because it was normal. We thus conclude that, all that has been considered by the trial judge at page 109 as incriminating conduct, which we say it is not and could not, by any stretch of imagination be taken to be incriminating conducts by the appellant capable of grounding a conviction. 17 For the above reasons, we are of a strong view that, the appellant was convicted on insufficient evidence of visual identification. Accordingly, we allow the appeal, quash the conviction and set aside the sentence. We order that the appellant be released from prison forthwith unless held for some other lawful cause. DATED at MWANZA this 20th day of July, 2023. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Judgment delivered this 21st day of July, 2023 in the presence of Mr. Cosmas Thuthuru, learned Counsel for Appellant and Ms. Monica Mweri, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original.