20100507 TZCA Mwanza

i

IN THE COURT OF APPEAL OF TANZANIA

ATMWANZA (CORAM: MSOFFE, J.A., MBAROUK, J.A. And BWANA, JJA.) I CRIMINAL APPEAL NO. 26 OF 2006 . C . i PAULO MAKARANGA ..................... ·······························I······· APPELLANT VERSUS . THE REPUBLIC ............................................. (1 • • • • • • • • • • • • • • • • • RESPONDENT I (Appeal from the Judgment of the High Court dlf Tanzania at Mwanza) (Rweyemamu, J.) dated the 28th day of September, 2005 in HC Criminal Appeal No. 164 of 2004

JUDGMENT OF THE COURT 6 & 7 May, 2010 MSOFFE, J.A.: This appeal arises from the decision of the High Court (Rweyemamu, J.) upholding the decision of the District Court of Mwanza (Madebele, DM) in which. the appellant las convicted of armed robbery contrary to Sections 285 and 286 of the Penal Code and sentenced to an imprisonment term of thirty yearb. The appellant filed a four point memorandum o~ appeal in which the key issue is on the aspect of identification • 1 In both the memorandum of appeal and in his oral submissiJn before us he ii maintained that the courts below erred in deciding that he was ! properly identified on the date and time of incident. On the other hand Mr. Edwin Kakolaki, learned Senior State I Attorney representing the respondent Republic, contended that there I is nothing to fault the courts below in their assessmeht of the evidence on the crucial aspect of identification. The identifyirlg witnesses (PWl I and PW2) knew the appellant before the date of, incident. At the relevant time and place of incident there was i hurricane lamp I illuminating the area. PWl stated that the appellant was in company I with other robbers but did not identify them - to Isuggest that this witness was honest and reliable in his identification; of the appellant. As if all this was not enough, these witnesses mentioned the appellant to the police on the same night. In

consequJnce thereof, the appellant was arrested on the same night. The cumJlative effect of all the above pieces of evidence, Mr. Kakolaki wenf on to urge in conclusion, is that the appellant was identified on the fateful day and I I time. I PWl Kija Mabula and PW2 Zuberi Balele testi fied and told the 1 trial District Court that on 20/6/2003 at around mid~ight the house in 2 which they were living in was broken into by bandits. The bandits were wielding machetes and an iron bar. The bJndits hit the two witnesses with the dangerous or offensive weapons and then stole and ran away with an assortment of articles including a radio cassette, clothes, a wrist watch, a radio and a pair of shoes. Both PW1 and I PW2 saw and identified the appellant among the robbers because they ' I knew him before that day, and also because of th~ fact that at the material time there was light coming from a hurricanJ lamp. As stated above, the determination of the case depended on the crucial issue of identification. In other words, the prosecution case was to fall or rise on this crucial aspect of the case. :T"he judge on first appeal addressed this issue thus:- . .... the appellant was properly identified and PW2/ they knew him before; conditions of J PW1 identification were favourable as the room they were sleeping in-where the attack took; place was lighted; that the two witnesses men~ioned the

appellant to PW4 a police bfficer immediately after the incident. The appellant was arrested immediately thereafter. ... 3 Then she went on to say:- .... Furthe0 according to the appellant, the two witnesses were not his enemies. There was no ! I suggestion that they had any reason I to fabricate a case against him and if thei( were making a random mention they wou1J have I I implicated other people/ since the attack was carried on by five people including the appellant .... With respect, we are in entire agreement with the appellate judge in her reasoning. We will only add that, as correctly submitted by Mr. Kakolaki, in the circumstances of this case t~ere was no need for more evidence of description as the appellant apJeared to suggest in the second ground of appeal. The appellant wJs known to both PW1 and PW2 prior to the date of incident. There was thus no need for further evidence of description from these. witn'.esses. It is not I always the case that evidence of description is nFcessary. If an I accused person is known to the witness there is no heed of evidence I of description. In this regard, we associate ourselv~s with the view I expressed by this Court in Samwel Msinga v Republic, Criminal Appeal No. 143 of 2005 (unreported) that:- 4 • I ..... if a witness knows the suspec~ and mentions his name to third persons/ t1at in itself is part of a description ..... I In

this context, the fact that PWl and PW2 mentioned the appellant to ! the police at the earliest possible opportunity was also significant in I assuring that they were reliable witnesses. In ~arwa Wangiti ! Mwita and Another v Republic, Criminal Appeal No. 6 of 1995 I (unreported) this Court stated:- I The ability of a witness to name a suspect at the earliest opportunity is an all important assurance of his reliabil~ty, in I the same way as u(Jexplained delay or complete failure to do so should put a pfudent court to inquiry. (Emphasis supplied.) As stated above, once PWl and PW2 named the appellant to the police ' I I he was arrested almost immediateiy on the same! night. This, as demonstrated above, was significant in lending further credence to the I ' prosecution case against the appellant. I The appeal has no merit. We hereby dismiss it.. ! 5 I i DATED at MWANZA this ih day of May, 2010. J. H. MSOFFE

JUSTICE OF APPEAL I M.S. MBAROUK

JUSTICE OF APPEAL S. J. BWANA

JUSTICE OF APPEAL I certify that this is a true copy of the original. _, <= j)s_:' ..:.q (J. S. MGETTA) !STRICT REGISTRAR 6