CRIMINAL APPEAL NO 643 OF 2022 FLAVIAN GASPAL VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM fCORAM: NDIKA. 3.A.. KEREFU. J.A.. And NGWEMBE. J.A.1 ) CRIMINAL APPEAL NO. 643 OF 2022 FLAVIAN GASPAL...................................................... ............... APPELLANT

VERSUS THE REPUBLIC.................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dar es Salaam) fMwanaa, dated the 5th day of October, 2022 in Criminal Appeal No. 181 of 2021

JUDGMENT OF THE COURT 2nd & 11th July, 2024 NDIKA, J.A.: The appellant, Flavian Gaspal, appeals against the judgment of the High Court of Tanzania at Dar es Salaam in Criminal Appeal No. 181 of 2021, which affirmed his conviction by the District Court of Kinondoni at Kinondoni for armed robbery along with the consequential mandatory sentence of thirty years' imprisonment. The accusation at the trial was that on 4th August, 2019, the appellant stole a Huawei mobile phone valued at TZS. 350,000.00 from John Robert Ndikila in the Mwenge Traffic Lights area of Kinondoni District i in Dar es Salaam Region. The appellant also threatened the said Ndikila with a knife both before and after the theft to obtain and retain the property. According to John Robert Ndikila (PW1), he was conversing on one of his two mobile phones at a bus stop near Mwenge Traffic Lights in Kinondoni at approximately 19:45 hours on 4th August, 2019. Suddenly, a robber approached and assaulted him with the intention of stealing the phones. Although he initially fought his assailant off, he ultimately threw the phones into a nearby Bajaj auto rickshaw. This action was taken to prevent the theft. The perpetrator leapt to the opposite side of the rickshaw and seized one of the phones, a Huawei black and grey handset. At that moment, the assailant retrieved a knife from his trousers and threatened to stab PW1.

Subsequently, he fled the crime site. According to PW1, the crime scene was illuminated by electric billboards that were situated two metres away and by the light from moving vehicles. He observed the assailant, whom he described as "tall, black, not lean and not fat, " with the assistance of that light. Following the robbery, which lasted approximately four minutes, PW1 proceeded to the Mabatini Police Station in the vicinity to file a formal complaint. The following day, he engaged in a conversation with Samson Wilson Mwakasala (PW2), the chairman of the auto rickshaw operators in the Mwenge area, whereupon PW2 disclosed that he was acquainted with the criminal. Later that day PW2 and his companions apprehended the appellant with the stolen phone handset and surrendered him to the Mabatini Police Station. On the following day, PW1 identified the appellant during an identification parade at the police station, which was overseen by No. PF.1989 Inspector Himo (PW5). No. F.2417 Detective Corporal Abubakar (PW3) informed the trial court that the appellant confessed to the offence while being interrogated under caution. It came out that a cautioned statement he ascribed to him was rejected on the reason that it was recorded after effluxion of the basic period of four hours. No. F.2525 Corporal Emmanuel (PW4) recalled receiving the appellant at the police station on 5th August,

2019, following his arrest. He submitted a certificate of seizure (exhibit PI) indicating that the appellant was found in possession of a Huawei black and grey phone (exhibit P2). The appellant denied liability in response to the prosecution's accusation, asserting that the case against him was fabricated. He expressed his disappointment that the complainant did not exhibit any distinctive markings on the phone that was purportedly stolen from him (exhibit P2) that could be used to establish a connection between the phone and the alleged robbery. Furthermore, he denied being present at the crime site during the material time and denied being acquainted with PW2. He stated that he was not a rickshaw operator based in Mwenge, but rather in Kawe. The trial court found it proven that the appellant was positively identified at the scene, a fact confirmed by the evidence that he was picked out by PW1 at the identification parade. Furthermore, the trial court acknowledged the evidence that the appellant was apprehended one day following the incident while in possession of the stolen phone, which triggered the application of the doctrine of recent possession. The said court determined that the offence of armed robbery was aptly established based on PWl's testimony that the stealing was facilitated by a threat to stab him with a knife. Consequently, the appellant was convicted and

sentenced by the court, as previously mentioned. As previously hinted, the High Court was unimpressed by the appellant on the first appeal. It upheld the conviction and sentence, hence the present appeal raising five main criticisms: one, that visual identification evidence was not watertight. Two, that the identification parade was improperly conducted. Three, that the supposedly stolen phone was not properly and positively identified by PW1. Four, the testimonies by five prosecution witnesses were not credible. And finally, that the charged offence was not proven beyond a reasonable doubt. The appellant appeared in person before us to prosecute the appeal. Ms. Kasan Emilia Maziku, learned Principal State Attorney, who appeared together with Ms. Shamimu Mruma, learned State Attorney, for the respondent, fully supported the appeal. The initial issue we are concerned with is the grievance that challenges the reliability and cogency of the visual identification evidence. In tackling this issue, we will also address the probity and veracity of the identification parade. The appellant essentially contended that the visual identification evidence did not eliminate the possibility of mistaken identification. He argued that PW1 did not provide any meaningful detail regarding the assailant's distinctive features, which was contrary to the Court's direction in Karim Ramadhani & 2 Others

v. Republic, Criminal Appeal No. 113 of 2009 (unreported). Aside from the witness's failure to disclose the intensity of the light that illuminated the crime scene, it was improbable that the light from the two sources he mentioned would have amply illuminated the scene. The intensity of the light emanating from the moving vehicles was not specified; it is possible that it was either full or faint. Furthermore/ the appellant criticised the High Court's determination that the identification parade met all the necessary standards in terms of its probity. He was adamant that the parade's supervisor (PW5) did not provide a detailed account of how he prepared and conducted the parade in accordance with the Police General Order 232 (2), which governs such parades, as well as the guidance provided by the high Court in Republic v. Ex. C.7535 PC Venance Mbuta [2002] T.L.R.

48. For her part, Ms. Maziku reviewed PWl's testimony and concurred with the appellant that the said evidence was not robust due to the absence of a mention of the intensity of the light at the scene and the incomplete description of the spotted assailant. For the proposition that an identifying witness must provide a detailed description of the assailant, including his appearance, complexion, height, and any peculiar mark of identity, she cited a decision of the High Court in Bushiri Amir v. Republic [1992] T.L.R.

10. Additionally, she recalled that PW1 claimed that after he described the assailant to PW2, the latter suspected that the said description matched with the appellant and that an endeavour was made by PW2 to trace the appellant, which was ultimately successful. She promptly pointed out that PW2 contradicted this assertion by asserting, as disclosed at page 19 of the record of appeal, that he was informed that the appellant was the culprit. The evidentiary value of the raider's observation and identification at the site is of the utmost importance, as the robbery took place at a late hour of approximately 19:45 hours. In this context, it is important to remember that the Court's seminal decision in Waziri Amani v. Republic [1980] T.L.R. 250, at pages 251-252, warned that ocular identification evidence is the weakest and most unreliable type of evidence. That it should not be acted upon until the court is fully convinced that the evidence presented is reliable and that all potential instances of false identity have been resolved. The Court then went on to state, at p. 252, that in determining disputed identity the trial judge or magistrate must show on the record a careful and considered analysis of all the surrounding circumstances of the crime being tried. To illustrate the point, the Court stated as follows: "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 witness knew or had seen the accused before or not These matters are but a few o f the matters to which the trial Judge should direct his mind before coming to any definite conclusion on the issue o f identity."[Emphasis added] The Court stressed in Raymond Francis v. Republic [1994] T.L.R. 100 that: "It is elementary that a criminal case whose determination depends essentially on identification, evidence on conditions favouring a correct identification is o f utmost importance." See also Ahmad Hassan Marwa v. Republic, Criminal Appeal No. 264 of 2005 (unreported); Horombo Elikaria v. Republic [2009] T.L.R. 154; Ally Manono v. Republic, Criminal Appeal No. 242 of 2007 [2010] 8 TZCA 22 [26th February 2010; TanzLII]; and Omari Idd Mbezi & Three Others v. Republic, Criminal Appeal No. 227 of 2009 (unreported). Certainly, the courts below considered the above principles and applied them to the facts of the case, reaching the concurrent verdict that the appellant was accurately identified at the crime scene. Generally, such a concurrent finding would be binding upon this Court as

a second appellate court, unless it is manifestly perverse, misapprehended, misdirected or non-directed - see, for instance, Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 149 and Dickson Elia Nsamba Shapwata & Another v. Republic, Criminal Appeal No. 92 of 2007 [2008] TZCA 17 [30th May, 2008; TanzLII]. After scanning the testimonies of PW1, PW2 and PW5, we agree with the parties that the appellant's identification was dubious, as we will shortly illustrate. At the outset, it is important to acknowledge that PW1 had the opportunity to observe his attacker, as he was accosted from close range by a mugger whose face appeared to have been unmasked. Nevertheless, this circumstance alone does not eliminate the possibility of an incorrect identification, as the crime was committed by a stranger in a split-second, at night. We concur with the parties that PW l’s testimony regarding the crime site's adequate illumination is clearly suspect. In our opinion, the light from the headlamps of moving vehicles is a transient source, and it is challenging to understand how it could illuminate the bus stop, which is situated off the road and away from its trajectory. It is important to remember our observation in Bakari Jumanne @ Chigalawe & Others v. Republic, Criminal Appeal No. 197 of 2018 [2020] TZCA 1794 [2nd October, 2020; TanzLII] that headlamps of moving vehicles

are generally an unreliable source of light: "The headlights o f the passing vehides might have lit up the scene, but it occurs to us that this source o f light was no more than fleeting and unreliable. In this context, there was no assurance that the scene was well lit for the witness to observe and identify his attackers." In the same vein, we do not believe that PW1 adequately elucidated the manner in which the static billboards illuminated the adjacent areas, as their primary objective is to attract viewers rather than to illuminate such areas. As previously mentioned, it is widely accepted that PW1 was robbed by an unknown individual, whom he described during the trial as "tad, black, not lean, and not fat." The appellant's protestation that the description was insufficiently distinctive was acknowledged by Ms. Maziku. That may be the case. However, what is more noteworthy is that there was no evidence presented that PW1 provided the police with a detailed description of the raider when he reported the robbery that fateful night, prior to having the opportunity to meet the appellant after his arrest. We cannot help but wonder as to how PW5 organised the identification parade in the absence of such a detailed description of the suspect. Furthermore, we concur with Ms. Maziku's argument that PW2 materially contradicted PWl's assertion that the appellant matched

the description of the robber that PW1 provided to him the morning following the incident (i.e., 5th August, 2019). In a manner that was quite telling, PW2 repeatedly stated that he was informed that the appellant was the perpetrator and, as a result, he pursued and apprehended him. Consequently, we are not convinced that the appellant's apprehension was facilitated by the description that PW1 provided to PW2. Certainly, the identification parade evidence is diminished in significance due to the deficiencies in visual identification evidence addressed above. We have repeatedly stated that an identification parade, for all its value, is predicated on the assumption that the individual to be identified was present at the crime site and was identified. We reiterated the following in Ahmad Hassan Marwa (supra)'. "We wish to restate the law that an identification parade, is itseif not substantive evidence, but only admitted for collateral purposes.Jt derives its corroborative value from section 166 o f the Tanzania Evidence Act So, if well conducted, its value is only to corroborate the evidence o f the identifying witness (see Moses Deo v. Republic [1987] TLR 134 (CAT), Dennis Nyakonda v. Republic, Criminal Appeal No. 155 o f 1990 (unreported)). But the purpose o f corroboration is only to confirm or support evidence which is sufficient, satisfactory and credible and not to give

validity or credence to evidence which is deficient, suspect or incredible (See Aziz Abdallah v. Republic [1991] TLR 7). It is further the law that for any identification parade to be o f any value, the identifying witness(es) must have earlier given a detailed description o f the suspect before being taken to the identification parade (See Emilian Aidan Fungo @ Alex & Another v. Republic, Criminal Appeal No. 278o f 2008 (unreported)). "[Emphasis added] 12 See also Clement John Savimbi & another v. Republic, Criminal Appeal No. 49 of 2003 [2005] TZCA 68 [19th October 2005; TanzLII]; and Yusufu Abdallah Ally v. Director of Public Prosecutions, Criminal Appeal No. 300 of 2009 (unreported). Concluding, we hold that the courts below misapprehended the visual identification evidence, which we find insufficient to support the finding that the appellant was positively identified. Accordingly, we find merit in the first and second grounds of appeal. The appellant raised two points in respect of the third complaint, which criticised the identification by PW1 of the purportedly stolen phone. Firstly, he asserted that the charge sheet did not provide any specific details about the stolen phone. Secondly, he posited that the prosecution was unable to prove that exhibit P2 was PWl's property and that it was stolen from him. He was unwavering that PW1 was required to provide a receipt as

evidence of ownership of the phone. If he did not have a receipt, he should have identified the phone by its unique or distinctive markings, which would have been more than a simple declaration that it was a black and grey Huawei handset. He cited Joseph Mutua & Another v. Republic, Criminal Appeal No. 166 of 2011 (unreported) to substantiate his argument. 13 In her response, Ms. Maziku candidly acknowledged that PWl's identification of exhibit P2 was general and, as a result, was insufficient to be relied upon. She cited Evarist Maro @ Mangi v. Republic, Criminal Appeal No. 139 of 2006 (unreported) to argue that stolen goods should be identified at trial by special markings or labels if they are the type of goods that are routinely available at shops. It is pertinent to reiterate that evidence that an accused individual was apprehended in possession of the fruit of a crime freshly after it was committed may be used as incriminating evidence against him for any offence, regardless of its severity, in addition to the charge of theft or receiving stolen property. The accused person must give a reasonable explanation of such recent possession to rebut that presumption - see, for instance, Mussa Hassan Barie and Another v. Republic, Criminal Appeal No. 292 of 2011 [2012] TZCA 230 [19th September, 2012; TanzLII]. For the doctrine of recent possession to be applied, it must be proved

that, one, the stolen property was found with the accused; two, that it was positively identified to be that of the complainant; three, that it was recently stolen from the complainant; and four, that it constitutes the subject of the charge - see, for instance, Mussa Hassan Barie 14 {supra)] and Joseph Mkumbwa and Another v. Republic, Criminal Appeal No. 94 of 2007 [2011] TZCA 118 [23rd June, 2011; TanzLII]. The trial court invoked the said doctrine following the testimony of PW2, who claimed that he apprehended the appellant in possession of the mobile handset just one day after the incident. PW1 identified the handset as the property stolen from him on the material night due to its black and grey colour, as previously mentioned. Even though the phone was admitted in evidence during the trial and PW1 allegedly identified it as his stolen phone, we believe that his testimony is exceedingly feeble. In our opinion, there was no connection between PW1 and the handset that was purportedly recovered. Primarily, there was no evidence presented that PW1 mentioned the unique number of the phone or any special markings on it when he reported the robbery to the police. He did not provide any evidential foundation for the purported identification prior to being shown the phone. The Court in Ally Zuberi Mabukusela v. Republic, Criminal Appeal No. 241 of 2011 [2012] TZCA 137 [10th

December, 2012; TanzLII] emphasised the importance of a complainant providing a unique description of an item prior to it being shown to him or presented as an exhibit. The Court determined that: "On the contrary, in the situation at hand, the complainant did not make a distinctive description o f the mobile phones ahead o f the same being shown to him and tendered in court. He simply made a blank assurance that he knew the phones and that there were names on them. He did not go so far as to relate those names with the mobile phones. Such a blank assurance could not have sufficed a proper identification." It was evidently insufficient to identify such an item solely based on its black and grey colour, as numerous Huawei mobile handsets are typically available at retail locations throughout the country. We concur with the parties that PW1 should have submitted a receipt that verified the purchase of the phone. As an alternative, he should have identified it by its unique registration number or identifier, which is also referred to as the IMEI number, or "international mobile equipment identity." We acknowledge that sometimes it may be difficult for a complainant to recollect the IMEI of their phone; however, we believe that they should be able to identify it by the presence of certain special markings. As a result, there is no assurance in this instance that exhibit P2

was necessarily the one seized from PW1. 16 By way of emphasis, we wish to reiterate the settled principle that in identifying stolen property allegedly found in the accused person's possession, the complainant must describe it conclusively stating its distinctive features as opposed to giving a generalized description thereof - see - Abdul Athuman @ Anthony v. Republic, Criminal Appeal No. 99 of 2000 [2005] TZCA 29 [14th June, 2005; TanzLII]; and Vumilia Daud Temi v. Republic, Criminal Appeal No. 246 of 2010 [2013] TZCA 443 [10th June, 2013; TanzLII] quoting David Chacha and 8 Others v. Republic, Criminal Appeal No. 12 of 1997 (unreported). See also Ally Zuberi Mabukusela {supra). We have no doubt that the recent possession doctrine was incorrectly applied considering the inadequate identification of exhibit P2, which was purportedly stolen from the complainant. Consequently, we uphold the third ground of appeal. Based on our determination on the first, second, and third grounds of appeal, we are obligated to conclude that the charge against the appellant was not proved beyond a reasonable doubt. Consequently, we sustain the fifth ground of appeal. We do not, however, perceive a compelling necessity to address the fourth ground of complaint, as it is no longer a determining factor in the appeal. 17 In the end, we allow the appeal and proceed to quash and set aside the impugned conviction and sentence. The appellant should be promptly released from prison, unless otherwise incarcerated in accordance with the law. DATED at DAR ES SALAAM this 9th day of July, 2024. G. A. M. NDIKA

JUSTICE OF APPEAL R. J. KEREFU

JUSTICE OF APPEAL P. J. NGWEMBE

JUSTICE OF APPEAL The Judgement delivered this 11th day of July, 2024 in the presence of the Appellant in person, through video conference at Ukonga Prison and Ms. Mossie Kaima, learned Senior State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. 18