20111006 TZCA Mtwara 2

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IN THE COURT OF APPEAL OF TANZANIA

ATMTWARA (CORAM: MUNUO, J.A., MBAROUK, J.A., And BWANA, J.A.) CRIMINAL APPEAL NO. 123 OF 2009 MOHAMED SAIDI .•...•.••... ·.•..•••...•...•..••..•.........••.•..••..•••••...•.• APPELLANT V~RSUS THE REPUBLIC .............:••··················~······························· RESPONDENT (Appeal from the d~cision of the High Court of Tanzania at Mtwara) · (Mipawa, J.) dated the 30th day of March, 2009 in, Criminal Appeal No. 51 of 2006

JUDGMENT OF THE COURT 5 & 6 October 2011 MBAROUK, J.A.: The appellant with two others not subject to this appeal were charged before the District Court of Mtwara at Mtwara with two counts. The 1st count was the offence of armed robbery contrary to sections 285 and 286 of the Penal Code, Cap. 16 Vol. 1 of the Laws. The second count was unlawful wounding, contrary to section 228 (1) of the Penal Code, Cap 2 16 Vol. 1 of the Laws. The District Court of Mtwara only found the appellant guilty. He was convicted of a lesser offence of robbery with st violence as for the 1st count and 2nd count as charged. For the 1 count, the appellant was sentenced to fifteen (15) years imprisonment whereas for the 2nd count, he was sentenced to two (2) years imprisonment. Aggrieved, the appellant unsuccessfully appealed to the High Court of Tanzania at Mtwara. Undaunted, the appellant preferred this second appeal. Briefly stated, the facts of the prosecution's case as they were at the trial court were as follows: On 25/12/2004 at about 9.30 p.m., PWl, Aziza Msusa, the victim, closed her saloon and hired a taxi to Magomeni, a suburb in Mtwara Municipality. Upon reaching Magomeni, PWl proceeded to Magomeni Grocery which was few paces from the road. While on the way to the said grocery, three young men emerged threatened her with a knife and invaded her. PWl's gold chain was cut and her poach

was stolen and her arm twisted. · PWl yelled from pain and raised an alarm for help. She testified to have identified the culprits by the help of enough electric light at the scene of crime. The alarm raised by PWl was 3 responded by two prison officers namely PW2 D. 1399 Cpl. Sostenes and PW3, A. 6241 Cpl. Taimu who both knew PW1. At once, PW1 showed to PW2 and PW3 the culprits who were still at the scene of crime. The culprits which included the appellant said that the properties they had robbed from PW1 were with one Athman and he was ready to retrieve them and handover to PW1. En-route to where Athman was, his co- bandits appeared and joined the appellant to assault PW2 and PW3. PW2 was stabbed on the chest with a knife and he was admitted at Ligula Regional Hospital. According to PW3, they were able to identify the appellant as there was electricity light. PW3 testified that although other culprits took to their heels, but they arrested the appellant who also ran away later. While at the scene, the appellant told them that, he did not know that PW1 was related to· them otherwise he would not have robbed her. PW2 and PW3 claimed to have known the appellant before the incident as he was one time a remandee in prison. Furthermore, PW4 WP 2939 Cpl. Sponser testified to the effect that, the appellant confessed in his cautioned statement - Exhibit P3 that he committed the

offences charged against him. 4 The appellant's defence was to the effect that, he was arrested on 4/9/2005 by prison officers while watching a video show. He was ordered to report to police station without being told his offence. On 5/9/2005, he said, he was forced to give his confession as shown in his cautioned statement, Exhibit P3. He was then charged and sent to court. At the hearing of the appeal, the appellant appeared in person, unrepresented, whereas the respondent Republic was represented by Mr. Prudens Rweyongeza, learned Senior State Attorney, assisted by Mr. Ismail Manjoti, learned State Attorney. Although the appellant's memorandum of appeal contained a total of seven grounds of appeal, but we think, the main issue is whether the appellant was correctly identified committing the offence charged against him. Responding to the complaints made by the appellant, Mr. Rweyongeza from the outset did not support the appeal. He opted to give his reply mainly on the issue whether the appellant was sufficiently 5 identified committing the offence against him. He submitted that the identification evidence was overwhelming. First, he said as the record shows, PWl testified that at the scene of crime there was enough electricity light and she identified the appearance of all the three bandits who invaded her, including the appellant. Second, the learned Senior State Attorney

submitted that PWl stated that, it took about one hour before she was helped. Hence, she stayed with the appellant and other bandits for a long time and that led her to identify them. Third, Mr. Rweyongeza submitted that at the earliest opportunity PWl on 18/4/2005 even before the appellant was arrested, the record shows that she named the appellant by his nick name "tall'~ as among those she identified. Fourth, PW2 and PW3 identified the appellant as there was enough . . ' electricity light at the scene of crime, Mr. Rweyongeza said. He further added that, the. appellant told PW2 arid PW3 that he did not know that PWl was related to them, otherwise, he could not have robbed her properties. That means, he said PW2 and PW3 had time talking with the appellant in close contact, hence enabled to identify him. Fifth, Mr. Rweyongeza further contended that, PW3, the Prison Officer, testified to the effect that he knew the appellant and his colleagues even before the 6 incident. He said, he used to see the appellant while he was in remand prison. Thereafter, the learned Senior State Attorney urged us to find that as PWl, PW2 and PW3 properly identified the appellant. However, Mr. Rweyongeza declined to support conviction and sentence against the appellant imposed on him for the 2nd count. This is because, the evidence shows that at the scene of crime there was a fracas, hence it was

difficult to establish with certainty on who stabbed PW2. We think, this appeal can be disposed of by examining mainly the issue of identification. As pointed out earlier by Mr. Rweyongeza, the evidence of PWl, PW2 and PW3 was sufficiently established that the appellant was properly identified at the scene of crime. We agree with him to that effect for the same reasons he has advanced. Firstly, as the prosecution witnesses, PWl, PW2 and PW3 testified, there was enough electricity light which enabled them to identify the appellant properly at the scene of crime. Secondly, we agree with Mr. Rweyongeza that the record shows that PWl stayed with the bandits including the appellant for a long time before she was helped by PW2 and PW3. We think, that period PWl I I ! 7 stayed with the appellant enabled her to sufficiently identify the appellant. Thirdly, the record also shows that PWl named the appellant even before he was arrested as among those who invaded her. This Court in the case of Marwa Wangiti Mwita and Another v. Republic, Criminal Appeal No. 6 of 1995 (unreported) showed the importance of naming a suspect at the earliest opportunity by stating that:- "The ability of a witness to name a suspect at the earliest opportunity is an all important assurance of his reliability." Even if the appellant claimed that there are several people named as "tall" in town, but we think such

evidence was not the only one which implicated him in this case. There is .an identification evidence of PWl, PW2 and PW3. We have no reason to differ with the learned Senior State Attorney on that point. Fourthly, we also agree with Mr. Rweyongeza that the appellant was known to PW3, the Prison Officer who testified that he knew the appellant even before the incident in this case. PW3 testified to the effect that, he initially used to see the appellant while he was in remand. Even if the appellant categorically denied to have been in remand 8 custody, but his own defence witness DW4 Kazumali Mnung'a Linkado testified that the appellant was once in remand prison facing a case of bhang - Seep. 22 of the record. We are of the considered opinion that the guidelines in the case of Waziri Amani v. Republic (1980) TLR 250 were established in eliminating the possibilities of mistaken identity in this case. On the other hand, Mr. Rweyongeza reminded us that the facts of the case show that PW1 was invaded with a knife when her chain was cut. For that reason, he urged us to enhance the sentence from that of fifteen years to the mandatory minimum sentence of armed robbery which is thirty years imprisonment. We are convinced that, the evidence on record has sufficiently established that the appellant was properly identified committing the offence charged as the learned Senior State

Attorney has shown. We also agree with him that the 2nd count of unlawful wounding was not proved beyond reasonable doubt because of the fracas at the scene of crime 9 which made it difficult to know who exactly stabbed PW2, the Prison Officer. On the other hand, we also agree with Mr. Rweyongeza that, as the evidence shows that a knife was used, hence the sentence has to be enhanced as directed by the law in the offence of armed robbery. In the event, and for those reasons, the appeal is hereby dismissed and the sentence enhanced to the mandatory thirty years imprisonment. It is so ordered. DATED at MTWARA this 6th day of October, 2011. E.N. MUNUO

JUSTICE OF APPEAL M.S. MBAROUK

JUSTICE OF APPEAL S.J. BWANA

JUSTICE OF APPEAL I certi a true copy of the original.