Mesanga Mwita Vs Republic Criminal Appeal No

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: JUMA. C.J.. LEVIRA, J.A. And MASOUP, J.A/1 CRIMINAL APPEAL NO. 413 OF 2022 MESANGA MWITA........................................................ APPELLANT VERSUS THE REPUBLIC......................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Mtulva, J.l dated the 15th day of July, 2022 in Criminal Sessions Case No. 103 of 2021 JUDGMENT OF THE COURT 13th & 19th March, 2025 LEVIRA, J.A.: This is an appeal against conviction and sentence of death passed on the appellant, Mesanga Mwita by the High Court of Tanzania at Musoma. The appellant was convicted of the Murder of Joyce Julius, who was his then wife on 9thFebruary, 2019 at Bukabwa Village within Butiama District in Mara Region. The case against him was substantially based on direct evidence of a single witness, one Chacha Mesanga, a 4 year old boy and son of the appellant (PW5). According to PW5, on 8th February 2019, he went with his mother to Butiama to pay a visit to his father. At his father's residence, they met the appellant, his step mother, and one Kibago who was a cattle keeper. On that day they slept at Kibago's house located within the appellant's compound and Kibago went to sleep at a neighbour's house. In his father's compound there were two houses. His father and stepmother slept together in the other house which had solar power and was located at about 8 meters from Kibago's house. PW5 explained further that, the room in which he slept with the deceased was small sized 2 meters x 5 meters and inside that room there was only one bed and the door of that room was closed with a support of a stone from inside the room. Later, PW5 saw his father entering that room with a "sime"and a hand torch which had a bright light. He attacked the deceased on the head by using the said "sime" and put her down. The distance from the bed to where the attack took place was like one meter. The light from the appellant's torch enabled PW5 to observe everything which had occurred. In the course, PW5 came up with another version of his testimony that, when his father entered the room where he was sleeping with his mother, he removed her from the bed then attacked her in his presence. It was, as well, the evidence of PW5 that when the appellant finished to attack the deceased, he carried her on his shoulders to outside 2 the house. From there, he took her on a bicycle to unknown place and after sometimes, he returned alone and took PW5 to another house to sleep. On the next day, the appellant sent PW5 to his grandmother (the mother of the appellant) where he stayed for a while before the appellant went to take him back. PW5 went on to testify that, at a night which he could not recall, police officers went to the appellant's residence with his uncle, one Kurwa Julius (PW1) and arrested the appellant on allegation that he killed the deceased. Having seen his uncle, PW5 rushed to him and informed him that his father (the appellant) had killed his mother (the deceased) by attacking her with a "sime" on her head and strangled her. In his testimony, PW1 corroborated the evidence of PW5 to the extent that, he was aware that PW5 and his mother had gone to pay a visit to his father. He communicated with the deceased when she was at her husband's premises on 8th March, 2019. From that date there was no further communication. On 4th April, 2019, PW1 and his fellows went to Mazame Police Station where they were informed that the deceased died in previous days and they were directed to report to Butiama Police Station. Thereafter, they went to the appellant's residence at Bukabwa and the appellant was arrested in presence of PW5 who recognized and informed PW1 that, he saw the appellant while attacking the deceased on head. According to PW1, at the night of 4thApril, 2019, the appellant and 3 Kibago were arrested and taken to Butiama Police Station and on 9thApril, 2019, the postmortem examination of the deceased's body was conducted in his presence and he saw that the deceased was attacked at the head. Another prosecution witness was Joshua Waryoba (PW2) who testified to the effect that, the body of the deceased was found along Mara River at the entrance of Lake Victoria on 9th February, 2019, The case was investigated by Ast. Inspector Haza and Corporal Richard who were ordered by Joshua Rian (PW3) to do so. According to PW3, they saw the body of the deceased with cut wounds suggesting that she was killed by a sharp weapon. At the scene of crime (where the body was found) neither the deceased nor the attacker was identified until in April 2019, when PW3 was informed that the deceased was identified and the appellant arrested. G 7535, Corpl. Richard (PW4), a police officer from Butiama Police Station, Investigation Department, was among the police officers who went to the scene where the body of the deceased was found on 9th February, 2019. His evidence did not differ substantially with that of PW3. The most notable part of his evidence is that, he was among the people who were present when the medical doctor was examining the body of the deceased and the doctor told them that, the body of the deceased was strangulated. In his defence, the appellant denied any involvement in the death of his then, wife. He testified that he received the information regarding 4 the death of his wife on the day he was arrested. He, as well, denied the allegation that PW5 was present on the day when the incident took place and when he was arrested. It was his further defence that the case against him was fabricated. At the end of the trial, the trial Judge was satisfied that PW5, despite being a child, delivered credible and reliable evidence to convict the appellant. He was convinced that the prosecution had established its case beyond reasonable doubt, that it was the appellant who murdered Joyce Julius, the deceased on the night hours of 8thFebruary, 2019. Accordingly, he convicted and sentenced him to suffer death by hanging. The appellant was aggrieved and preferred this appeal. The appellant's grounds of appeal are paraphrased as follows: One, that the prosecution failed to prove the case against the appellant beyond reasonable doubt, as his conviction was based on weak, inconsistent, incredible and unreliable evidence of prosecution witnesses; two, that the defence case was not considered by the trial court and three, that the appellant was not identified by PW5 at the scene of crime. At the hearing of the appeal, the appellant was represented by Mr. Daud John Mahemba, learned advocate, whereas the respondent had the services of Ms. Grace Michael Madikenya, learned Senior State Attorney assisted by Ms. Agma Agrey Haule, learned State Attorney. Mr. Mahemba 5 argued the first and third grounds of appeal together and the second ground separately. In determining this appeal, we prefer to start with the complaint regarding identification of the appellant at the scene of crime as raised in the third ground of appeal. The evidence of PW5 was challenged by the appellant through his counsel regarding the light which enabled him to identify the appellant at the material night. Mr. Mahemba's argument based on how PW5 managed to identify the appellant, if at all, it is true that the appellant entered the room with a torch directing it towards the position where the deceased and PW5 were sleeping. According to him, when someone directs a torch light towards another, it is obvious that the one holding it is most likely to see those whom the torch is directed towards than the opposite. In support of his argument, he cited the case of Gervas Cosmas Chambi and Others v. Republic, 2021 [TZCA] 156 (29 March 2023; TANZLII). Besides, Mr. Mahemba argued further that the intensity of the light which enable PW5 to identity the appellant on the material date was not stated, taking into consideration that PW5 was only 4 years when the incident occurred. He insisted that the evidence of PW5 in that respect, was doubtful, particularly, on how he managed to estimate the measurements of Kibago's room which was illuminated by the said torch. Mr. Mahemba submitted further that, it is also doubtful how PW5 identified the appellant at that material night while it was the first time for him to see the appellant. According to the learned advocate, in the circumstances, there was a need of identification parade so as to test the memory and clear doubts that, indeed, PW5 identified the appellant. His argument based on the fact that the appellant said in his defence that PW5 was not at home when he was arrested. He backed up his argument with the decision of the Court in Mohamed Hamisi @ Bilali v. Republic, 2021 p"ZCA] 300 (24 April 2023; TANZLII). Mr. Mahemba implored us to find that the evidence of PW5 was doubtful as it lacks coherency and consistency, hence, unreliable. He cited the case of Waziri Amani v. Republic [1980] T.L.R. 250. Finally, the counsel for the appellant invited the Court to evaluate credibility of PW5 and make a finding that, he was not credible and his evidence could not be relied upon to ground conviction of the appellant. Hence, the case against the appellant was not proved beyond reasonable doubt. In reply, Ms. Haule opposed the arguments raised by the counsel for the appellant. It was her firm submission that the appellant was properly identified by PW5 at the scene of crime. She referred us to page 82 of the record of appeal where PW5 testified that when the appellant entered with a torch, he fixed it up to the roof so it illuminated the room. 7 Thus, it is not true that he said that the torch was directed to him as submitted by Mr. Mahemba. She added that, the light from the torch enabled PW5 to identify the appellant as he said, it had a very bright light. Regarding the age of PW5, Ms. Haule submitted that section 127 (1) of the Evidence Act, Cap 6 (the Evidence Act) provides that every person is competent to testify. Therefore, PW5 was a competent witness and his evidence was recorded in accordance with the requirements of the law under section 127 (2) of the Evidence Act as per the record, she insisted. Ms. Haule added that, the credibility of PW5 was tested by the trial Judge and at page 111 of the record of appeal, the Judge was satisfied that PW5 gave credible and reliable evidence despite that he was 4 years old. Ms. Haule insisted that PW5 was a trustworthy witness. He mentioned the appellant at the earliest opportune, therefore his evidence was reliable as per Court's decision in Makende Simon v. Republic, 2021 [TZCA] 156 (3 May 2021; TANZLII). Regarding the complaint on how PW5 identified the appellant while it was the first time for him to see his father, Ms. Haule acknowledge that fact, but she said, PW5 saw his father before the incident, he greeted him, while with the deceased. Therefore, he identified the appellant during commission of the offence and at time of his arrest because they were together for a long time before the arrest. She argued that, the case of Mohamed Hamis Bilali cited by the counsel for the appellant is 8 distinguishable because identification parade is conducted to identity a stranger while in the present case, the appellant was not a stranger to PW5. Besides, she said, the arrest of the appellant was done in the presence of PW5. She submitted further that in general, the appellant was identified properly by PW5 in accordance with the conditions set in Waziri Amani's case (supra) as cited in Makende Simon (supra). She referred us to page 82 of the record of appeal where PW5 testified that the distance from his bed to where the attack took place was approximately one meter, the room was small and that there was bright light from the torch which was placed up to the roof and illuminated the room and PW5 knew the appellant as his father. That apart, she said, each case should be determined according to its circumstances as it was held in Makende Simon's case (supra). According to her, in the present case there was familiarity, the appellant is the father of PW5, they were together in one compound, PW5 saw him opening the door, he had torch which illuminated the room and thus, identification by PW5 was proper. Finally, Ms. Haule urged us to find that the prosecution proved the case against the appellant beyond reasonable doubt and dismiss the appeal. In his brief rejoinder, Mr. Mahemba urged us to assess the credibility of PW5 against his age on the material date and when he testified before the trial court. Having heard the parties' submissions in respect of identification made by PW5 at the scene of crime and perusing the record of appeal thoroughly, the issue for our determination is whether the appellant was properly identified by PW5, a 4-year-old child and the sole eyewitness. It is settled position that "a conviction can be based on the testimony of a singie - eye witness and there is no rule of law or evidence which says to the contrary provided the sole eye witness passed the test o f credibility in basing conviction on his testimony aiond' - see; Anil Phukan v. State of Assam 1993 AIR 1462 cited by the Court in Ahmad Omari v. Republic, 2005 [TZCA] 154 (27 November 2009; TANZLII). In the present case, the only eyewitness was PW5. His evidence on identification of the appellant at the scene of crime has been highly attacked by the appellant due to his age. The law is settled as to competence of a witness, it does not discriminate anyone on age basis but what is required is the capability of a witness in understanding the questions put to him and giving rational answers - see: section 127 (1) of the Evidence Act, Cap. Therefore, the age of PW5 could not hinder him from testifying before the court, unless the trial court observed that he was not capable to understand the questions put to him and give rational 10 answers, which is not the case herein. Apart from his age, the evidence of PW5 was challenged by the appellant through Mr. Mahemba on the account that it was not watertight because it did not eliminate all the possibilities of mistaken identity; by failure to state the intensity of the light from the torch and where it was directed. Before we embark into determining the issues raised, we find it apposite to state that, we shall as well consider the credibility of PW5. We are aware of the settled position, that credibility of a witness is best assessed by the trial court which has the opportunity to hear and watch when the witness testifies and on appeal, like in the present case, we assess coherence of the testimony of a witness and we consider it in relation to the evidence of other witnesses including the accused person- see: Shabani Daudi v. Republic, 2000 [TZCA] 28 (11 March 2004; TANZLII). Having laid down that foundation, we think, it is equally important to state that, it is trite law that for evidence of visual identification to be acted upon by the court to ground a conviction, it has to be water-tight eliminating all the possibilities of mistaken identity. In the case of Waziri Amani v. Republic [1980] T.L.R. 250 the Court stated in clear terms as follows: ”Evidence o f visual identification, as Courts in East Africa and England have warned in a number of cases, is o f the weakest kind and most unreliable. li It follows therefore; that no court should act on evidence o f visual Identification unless all possibilities o fmistaken identity are eliminated and the court is fully satisfied the evidence before it is absolutely watertight" In the present case, in convicting the appellant, the trial court relied mostly on the evidence of PW5 the only eyewitness at the scene of crime. At page 129 of the record of appeal, the learned trial Judge had this to say: "In the present casef however, there is eye witness PW5 who witnessed the events from opening of the door, attacks on head, strangulations and transportation o f the deceased's body, However, the defence had registered the so called doubts on visual identification of accused during night hours. The law regulating visual identification requires the evidence to be watertight so as to remove any possibility o f mistaken identity.... I am aware in the present case, the defence had raised doubts in some of the facts and complained on discrepancies with regard to the light of the torch and solar, exhibits in celhphone numbers, torch, solar and weapon sime. However, that will not detain this court. The law in precedent of Mohamed Said Matula v. Republic [1995] TLR 3 shows that minor inconsistencies do not go to 12 the root o f the case. In any case, the thread of evidence in the present case is stronger than minor questions asked by the defence/' [Emphasis added]. It is very clear from the above excerpt that, the trial Judge resolved the appellant's complaint regarding the identification by a mere blanket statement, having combined it with other claims, that the complaint falls under minor inconsistencies which do not go to the root of the case. With respect, we are unable to go along with his finding because we do think that in the circumstances of this case, visual identification by PW5 at the scene of crime was very vital as it led to the appellant's conviction and thus deserved proper attention as it goes to the root of the case. We say so because, had it not been the identification evidence by PW5, a sole eyewitness, the appellant could not have been arrested, prosecuted and convicted of murder. Luckily, we are the first appellate Court in this case so, we have the opportunity of reevaluating the evidence on record. Mr. Mahende reminded us that the incident in the present case took place at night as per the testimony of PW5. However, he said, the evidence of PW5 was doubtful on how he identified the appellant. He referred us to page 82 of the record of appeal where PW5 claimed that through the aid of the light from the torch, he was able to identify the appellant. The main argument being that since the torch was directed towards the identifying witness it was not possible for him to see the person holding it. We shall let part of PW5's evidence speak for itself: "My father then came with SIME he damaged the door and entered inside the room. He also had torch. It was a hand sized torch, the torch had very highly light. After he entered insider he attacked my mother on the head and put her down. He attacked my mother on the head next to the ears and at the top of the head. He used SIME. At aii this time I was sitting at my bed. My bed and where the attack took place is like one meter. I saw my father from torch light He came and fixed a torch up to the roof. It was in the roof next to the coifigated sheets. He took my mother from the bed. He attacked her in a short period of time/'iEmphasis added]. In cross-examination at page 84 of the record of appeal, PW5 stated: "After eating we went to sleep. It was night hours. Kibago's house had no solar power, in the house there was a bed and locked by a use o f stone. The torch was directed to us; I was able to see him. I saw him from when he handled the torch on his hand\ He lightened my mother and attacked her. The torch was lighting us. "[Emphasis added]. 14 At page 86 of the record, PW5 continued to say: "My father was black I cannot tell whether he is tall or shot I could not know the attacker whether fat or thin. "[Emphasis added]. In our assessment of the evidence of PW5 in general and the above excerpts in particular, we agree with Mr. Mahemba that the circumstances do not suggest that PW5 identified the appellant properly at the scene of crime. More so, as correctly put by Mr. Mahemba, that the torch was directed towards them and confirmed by PW5 during cross examination. If that was the case, then, under normal circumstances, it was not easy for a person towards whom a torch is flashed (PW5 in our case) to identify a person flashing the torch at him/her - see: Anael Sambo v. Republic, 2007 [TZCA] 274 (2 September 2010; TAZLII). Nonetheless, even if we have to consider that, the torch was kept on the roof as testified by PW5 in the examination in chief and thus illuminated the room, still we find it unsafe to conclude that, indeed, the person who PW5, allegedly, saw on the material night was the appellant. We say so because in cross examination, PW5 said he could not know the attacker "whether fat or thin." This proves that PW5 did not see properly the person who entered in the room otherwise, he was expected to at least, describe his physical appearance. We are convinced that there was no sufficient light in the room where PW5 and the deceased were sleeping 15 as we learn from the excerpt above where PW5 said: "He lightened my mother and attacked hen" In our considered view, if there was sufficient light in the room, there was no need for the attacker to direct the torch towards the deceased before attacking her. What PW5 stated above suggests that, the attacker intended to make sure that the person he was about to attack, was the intended one. In his defence which was not considered by the trial court, which Ms. Haule urged us to consider, the appellant testified that he was informed by the police officer that his then, wife had died. He denied to have killed his former wife and that the evidence regarding torch and "sime" was incorrect. The appellant insisted that PW5 touched him at the dock because he was couched, otherwise it was not possible for PW5 to identify him because the deceased left with PW5 in 2016 for another man while PW5 had some months. The last time for the appellant to meet PW5 was in 2018 when he went to the deceased's father. He insisted that he did not see neither PW5 nor the deceased in the year 2019. In her reply, Ms. Haule submitted forcefully that, PW5 identified the appellant properly because he was familiar with him. Much as we agree that familiarity is among the conditions which may favour proper identification, unlike the trial court, we cannot ignore the appellant's defence especially, the fact that there was no infrequent contact between him and PW5 which could build the familiarity alleged by the learned State 16 Attorney. It is apparent from the record that, PW5 did not know his father before the incident. PW5 admitted this fact in his evidence as he stated at page 86 of the record of appeal that: 1 1 Before the attack dayI have not seen my father;"Therefore, we do not agree with Ms. Haule that there was familiarity between PW5 and the appellant which enabled PW5 to properly identify the appellant in the unfavourable conditions at the material night. All we have endeavoured to discuss interprets that, there was evidential gap with adverse impact on the alleged identification of the appellant done by PW5. We do not find the evidence of PW5 credible and reliable on the identification of the appellant as, in our settled view, it was not watertight to the extent of eliminating ail the possibilities of mistaken identity. Having made the above finding, we have no reason to belabour determining other issues. Much as we think that, determination of whether cause of death was proved is a relevant question, it is not in the circumstances of this case. We leave it as a subject of another day. We are of a decided mind that, the identification evidence by PW5 was insufficient to ground the appellant's conviction. As a result, the case against the appellant was not proved beyond reasonable doubt. Consequently, we allow the appeal, quash conviction and set aside death sentence imposed on Mesanga Mwita, the appellant. We order the appellant to be released forthwith from prison unless he is otherwise lawfully held. DATED at MUSOMA this 18th day of March, 2025. I. H. JUMA CHIEF JUSTICE M. C. LEVIRA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 19thday of March, 2025 in the presence of the Appellant in person via Video link from Musoma District Prison also Mr. Daudi John Mahemba, learned Counsel for the Appellant and Mr. Jonas Samwel Kivuyo, learned State Attorney for the respondent/Republic is here by certified as a true copy of the aqqinal. E. G. MfcANGlM SENIOR DEPUTY REGISTRAR COURT OF APPEAL