19920303 TZHC Dar es Salaam2

. IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CRIMINAL APPEAL NO. 155 OF 1992 ·· · (Originating from· Criminal Case No. 1426 of 1990 and c/f Criminal Appeal No. 84 of 1992 at Kivukoni) EX. B. 6937 D/C HARUNA PEMBE GOMBELLA ....... APPELLANT

VERSUS THE REPUBLIC ................................................ ) RESPONDENT

JUDGMENT Oriyo, J. The appellant, Haruna Pembe Gombela and another were convicted of robbery with violence under Sections 285 and 286 of the Penal Code, on 3/12/1991. Each was sentenced to imprisonment for ' twenty years. The DPP appealed against the sentence of 20 years as illegal and the appellant appealed against both conviction ·ancf ,r' ••~• sentence. The numbering of the appeals was Criminal Appeal No. 84 of 1992 and Criminal Appeal No. 155 of 1992 respectively. On 3/3/1992, the DPPs appeal was allowed and the sentences enhanced to thirty years to conform to the law as amended by the Written laws (Misc. Amendments) Act, 1989 which came into force on 26/5/1989. Unfortunately the heading to the judgment of this court (Mapigano, J rtd) in Criminal Appeal No. 84/1992 indicated that the appeal had been consolidated with Criminal Appeal No. 155/1992, which was not the case. Consequently, the appellant's Notice of Appeal to the Court of Appeal was struck out and the record was remitted to this court to hear and determine Criminal Appeal No. 155/1992 The background explains the delay to determine this appeal. The appeal was argued by Mr. Mapinduzi, learned State Attorney for the Republic and the appellant appeared in person. On the merits of the appeal, the first ground stated that trial court erred in relying on the testimony of PW1 that he identified the appellant at the scene

of the crime. The respondent stated that PWl's testimony was merely corroborative because the appellants identification was I obtained from other sources as well. Indeed the first ground is flimsy because the appellant was identified not only by PW1, Shabani Ally, who was driving the car but several other people as well. These other sources included DW4, Janita Mohamed a co-accused and DW3. He was named in the extrajudicial statement of DW3 Hassan Hamisi Kanduru and DW4; as one of the participants in the crime. Both statements/confessions made to the Justice of the Peace were read out in court and admitted as Exhibits 7 and 6 respectively. The appellant did not cross examine PWS and PW6 who tendered the statements or raise any objection to their being admitted. Grounds two and three of appeal are closely related to the first one. The second ground stated that the trial court erred for 2 ,, '/ convicting the appellant relying on the evidence of visual identification of PW1 without warning itself of the danger of doing so. The respondent reiterated its argument in ground one that the identification by PW1 was merely used to corroborated other testimonies. The appellant, correctly relied upon the Court of Appeal decision in the case of WAZIRI AMAN! VS. REPUBLIC (1980) TLR 250 that no Court should act on evidence of visual identification unless all possibilities of mistaken

identity are eliminated and the court is fullv satisfied that the evidence before it is absolutelv watertight In dealing with that piece of evidence, the trial court stated at the bottom of page 4 of the typed judgment as follows:- "The evidence which PW1 produced before me clearly showed that, there is no doubt that PW1 was hired by some 3 passengers and he took them to various places and he had _a good opportunity to identify them .... " Further, at the top of page 5 of the judgment, the trial court stated:- "To add weight on the,side of the prosecution case against the z1d accused. . . . . is the extrajudicial statement of the :fd accused which was taken before the Justice of the Peace at Magomeni Primary Court, the :fd accused admitted that he was together with 3 the :!1d accused when they hired a cab at Mwembechai area, directed a driver to drive them to Ubungo Garment when they arrived there the second accused produced an arm pointed to the driver and forced him to drive to Mwenge and they left him there. " Three independent testimonies visually identified the appellant; the 3rd accused who stole the car with the appellant, the 4th accused who bought the engine and other spares from the appellant and the complainant, PW1, who was driving the car that was stolen by the appellant and others. I find that this is the type of evidence the Court of Appeal had in mind in

requiring that evidence of visual identification must be watertight before a court can convict on it. I am satisfied that the visual identification of the appellant was watertight; and the trial court cannot be faulted for convicting the appellant on the strength of the evidence tendered. The third ground of appeal complains of the identification parade held at Urafiki Police where PW1 identified the appellant. The appellant stated that there was no material evidence before the trial court that such a parade was held. He was of the view that there should have been evidence of the police officer who supervised the identification parade; the relevant register, etc. The appellant submitted that in the absence of such evidence; the said parade may have been a fabrication. Mr. Mapinduzi responded that the evidential 4 value of the identification parade was not the basis of conviction but was of a mere corroborative value. -I agree with Mr. Mapinduzi in that the identification of the appellant by PW1 at an identification parade was of a mere corroborative value. The evidence relied upon by the trial court was as already stated above. Even if for the sake of argument, the evidence of the identification parade is eliminated; it would not affect the strength of the prosecution case. As already stated grounds 1, 2 and 3 are on the identification of the appellant. On the foregoing, the

three grounds of appeal lack merit and are hereby dismissed. Ground four attacked the trial court for admitting extra-judicial statements of 3rd and 4th accused (DW3 and DW4) which had been rejected at trial within a trial. This ground of appeal was a misconception on the part of the appellant. He did not know that an extrajudicial statement or a confession made to a justice of the peace is different from a cautioned statement made to a police officer. What was rejected at the trial within a trial (sic ?) was the cautioned statements; which were made to the police officer; and they were not admitted or relied upon by the court to convict. I have already stated that the appellant did not cross examine the justices of the peace on the contents of the extrajudicial statements or raise an objection to their being admitted. He was correctly convicted on the testimonies of 5 DW3, DW4 and PW1 which corroborated each other. This ground of appeal also lacks merit and is dismissed. Ground five complained that conviction was based solelv on extrajudicial statements of DW3 and DW4 contrary to the provisions of SECTION 33 (2) of the Law of Evidence Act. Mr. Mapinduzi repeated the submission that there were other • corroborative testimonies such as those of PW1. On my part, the· · response by the learned state attorney is the correct position and I will say no more than that the fifth ground

is also dismissed for want of merit. The sixth and the last ground of appeal was that the provisions of Section 214 of the Criminal Procedure Act 1985 were contravened by the change of Magistrates when the learned J. Mgetta, RM; heard and recorded the whole of the evidence at the trial in the District Court and Mr. Mwingwa, RM, took over and wrote out the judgment. It was correctly pointed out by the respondent Republic that such change of magistrates is permitted by law. And I would add that so long as there was no evidence that such change had materially prejudiced the appellant, whereby this court would in its discretion, set aside the conviction and order a trial de novo.. Similarly, ground 6 lacks merit and is dismissed. Apparently the appellant made attempts to raise additional grounds of appeal without leave of the court. Any such additional grounds were struck out for illegality. 6 J'

I I J For the· reasons stated, I am unable to find any fault with the trial court; and I uphold its decision~ Accordingly, the appeal fails . ' and is dismissed in its entirety. l-,·1 I . j , I I . ~ K.K .. Oriyo ·I)

JUDGE f.l .:,11' . I I : ' " j1: !;~'! i,:i ;,,; . • I in, j:: p1:: I' ti i 'i;J I t.