20090520 TZCA Dar es Salaam

1 ~ IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM (CORAM: MSOFFE,J.A.,MBAROUK,JA.And ORIYO,J.A.) CRIMINAL APPEAL iNO. 235 OF 2006

JUMA SAIDI

PAULO DAVID VINCENT LAMECK •••••.••••••••.••.•••.•••••••••••.••••••••••••••••••.••• APPELANTS MAZENGO CHAT!

HAMISISAIDI VERSUS I THE REPUBLIC •••••••••••••••••••••••••••••••• ,1••··························RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Mihayo, J.) Dated 18th day of January, 2006 in Criminal Appeal No. 35 of 2004 ' ' JUDGMENT OF 'THE COURT 15th & 22nd May, 2009 MSOFFE, J. A.: Initially there were five appellants in this matter. However, on I I 8th June 2006 one of them, MAZENGO CHATI, died. Accordingly on I th 15 May 2009 we invoked the pr9visions of Rule 71 (1) of the I I j . I 2 Tanzania Court of Aappeal Rules, 1979 and marked his appeal I abated. The appellants were sentenced to thirty years imprisonment and twelve strokes of the cane upon their conviction of Armed I Robbery contrary to sections 285 and 286 of the Penal Code by the ! District Court of Morogoro. They unsuccessfully appealed to the High I Court of Tanzania at Dar es Salaam, hence this second appeal. I th Briefly stated, the case against the appellants '-'.Vas that on 18 I June 2002 at around 11.00 p.m. PWl Simon Aroyo and PW2 Paulo ! Makubi were walking home from Foreign Pub Guest House. On the way they were attacked and robbed of money and shoes by a group I of six people. The group was armed with bush knives and iron bars. ' I Later, PWl was taken to hospital and the appellants were arrested. ! The first appellant made a cautioned statement befor~ PW3 WP

1056 I Detective Sergeant Hidaya. 3 At the hearing of the appeal Mr. Alexander :Mzikila, learned State Attorney for the respondent Republic, sought n6t to support the conviction. With respect, we are of the considered view that he was i justified in doing so for reasons which will emerge he~eunder. I The particulars of offence in the charge sheet alleged that the appellants:- Did steal cash Tshs. 4000/= and one pJir of I shoes valued at Tshs. 6000 all total valued at Tshs. 10,000/= the property of SIMON . I AROYO and immediately before such ste[1ling did use actual violence to the said Simon I Aroyo by cutting him on his left hand by using bush knife (PANGA} and cause grievous l1arm to him in order to obtain the said properties. i I On 13th February 2003 PW1 testified in court. His evidence in chief I ' read in part as follows:- 4 ... On the 18/6/2002 at about 11.00 p.m I was on my way back home from sending my guest to the Foreign Pub. While I was therejwith guest PAULO MAKUBI came and we st ,rted our way to my home. In the way we ,met with six people. I know all accused pel$ons Ii even before the incidence. It is the accused persons who attacked me... We saw the I I accused helped by the lamp light ( elrric light) showing. After the event I was brought to the police. I told nothing so I was unconscious... [Emphasis supplied.] i I At this juncture it is significant to observe

that the particulars of I offence in the charge sheet alleged that PW1 was robbed of money and a pair of shoes. Yet, PW1 did not say anywhere in his evidence that he was robbed of anything! His testimony wa$ simply that he I I was attacked, without more. It is true, he said that he became 5 I unconscious after the attack. Fine. But when he testified on 13th February 2003 he was already conscious and in ,his full senses. Therefore, on this day one would have expected him to say whether I or not he was robbed of anything on the fateful day; Apparently no I I such evidence was forthcoming from him. As it is, the only evidence that PW1 was robbed of money came from PW2. This witness testified that he was rob,bed of his shs. 630/= and PW1 was robbed of shs. 4,000/=. The witness said I nothing about the pair of shoes mentioned in the charge sheet. In effect this, therefore, meant that since PW2 was n9t supported by PW1 on this aspect of the case there was a missing link in the case I for the prosecution. It follows that since PW1 did not say that he I was robbed of anything the evidence of PW2 was of little or no significant probative value. It occurs to us that we could determine the appeal solely on the basis of the observations we have endevoured to give above. I However, in the interests of justice we are constrained to go a bit I 6 further and address the issues of

identification and the cautioned statement. The issue of identification in particular, was a very crucial aspect of the case which was also addressed at length by the courts below. I I The trial Resident Magistrate and the Judge on first appeal were satisfied that the appellants were adequately identified by PW1 i and PW2. They reasoned that the appellants were known to the ' witnesses prior to the date of incident and that the place of incident was well lit by fluorescent tube lights. The Judge cited the famous case of Waziri Amani V R (1980) TLR 250 that evidence of visual identification is one of the weakest kind and the mo~t unreliable and that a court should not act on it unless all possibilities of mistaken identity are eliminated. With respect, we are in agreement with the judge on his I proposition of the law regarding the evidence of visual identification. ' The question is whether there was enough evidence of identification. i 7 In his evidence of identification PW1 stated:- .. .I know all accused persons even befor~ the i incidence.... We saw the accused helped by I the lamp light ( electric lamp) showing... And PW2 stated:- .. .. Some of the people were those I knewl even prior to that date. At the place there were lights i and bright moonlight shining. Among them I I identified the 1st by his name JUMA the Z,d i accused that I knew by his face, Jd accused ! who is

VINCENT and is a MUHA, efh accusbd by his face and the gh accused whom I know his being HAMISI SAID.... I With respect, it was not enough for the witnes?es to say that they knew the appellants before the date of incident. '. They ought to I ' have explained how they knew them. Were they neighbours, friends etc? This was important, more so, because the appyllants testified that they lived at Chamwino while PW! and PW2 said that they lived 8 at Mafiga and Kiwanja cha Ndege, respectively. It was not shown whether these places were far or close to each other! The evidence ought to have shown whether inspite of the different places of residence the witnesses were acquainted with the appellants as to be I I able to identify them on the fateful day. In simila·r vein, it was

I I I expected that PW1 and PW2 would say how and in what way they identified the appellants on the time and place of: incident. For example, it was not disclosed whether they identified them by their distinctive clothing; the sound of their voices; special marks, if any, on their bodies etc. It was not enough for the witnesses to say that there was fluorescent tube light or bright moonlight illuminating the area, without more. We may also mention here that no evidence was forthcoming from PW1 and PW2 to show whether they stood at close range or distance to the appellants as to be able to identify I them correctly, whether the time spent in observing them ~as long enough to allow for correct identification etc. Needless to say, it is one thing for a person to say I identified so and so. But it is a different thing altogether for the person to say how he identified him. 9 The first appellant made a cautioned statement to PW3 implicating himself and the other appellants. But the: statement was I retracted and therefore needed corroboration as a m~tter of practice - See Dickson Elia Nsamba Shapwata V Republic, C.A.T. Criminal Appeal No. 92 of 2007 (unreported). Of course, in saying so, we are aware that a court may convict on a retr9cted confession

I I I even without corroboration if it is fully satisfied in the circumstances of the case that the confession must be true -See Tuwamoi V

I I I Uganda (1967) EA 84 at page 91. As we have tried to show above, there was no evidence which could corroborate, the cautioned I I statement. In Rex v Basherville (1916) 2 K.B. 667, Reading CJ. stated:- I I We hold that evidence in corroboration' must be independent testimony which affects the I accused by connecting or tending to connect him with the crime. In other words it ml/St be i I evidence which implicates him, that is ·which confirms in some material particular not only the I I ! evidence that the crime has been committed but also that the prison committed it .. In this case the only evidence that could probably cd>rroborate the i cautioned statement was that of PW2. However, in view of the position we have taken on the evidence of PW2 the eyidence of this ! witness could not corroborate the cautioned statement.I As already observed, this is a second appeal where the Court is usually slow or cautious in interfering with findings of fact by the courts below. The Court interferes where there are misdirections or i non-directions on the evidence, a miscarriage of justic~ or a violation of some principle of law - Daniel Nguru and Others V Republic, ' C.A.T. Criminal Appeal No. 178 of 2004 (unreported). After giving I the matter a very careful thought and consideration we are satisfied ! that this is a fit case for us to interfere with the concurrent findings of fact by the courts below. I' , I Accordingly, for reasons stated, we allow the appeal quash the I i conviction and set aside the sentence. The appellants are to be ' I I released from prison unless lawfully held. I , I I I th DATED at DAR ES SALAAM this 20 day of May, 2009. I J.H. MSOFFE

JUSTICE OF APPEAL j M.S. MBAROUK

JUSTICE OF APPEAL K.K. ORIYO

JUSTICE OF APPEAL I certify that this is a true copy of the original. I I P.B. Khaday

DEPUTY REGISTRAR