20140820 TZHC Mwanza

_ 9 Vi1~1~· .. , --> -rz:;kcfv......,_c:f ~ :- pot!.~"~'- -;f~~-,:

IN THE HIGH COURT OF TANZANIA

AT MWANZA , HIGH COURT CRIMINAL APPEAL NO. 21 OF 2014 .·' (Original Criminal Case No. 547 of 2010 of the District Court of Mwanza District . ,.. -at M1;v~nza). · • • . •• ' • '· - • • J/ ; ' . 'I.:/' .: .. ;, : .. . '.i, ' , ..., ' .., . RASHID S/01SELEMANI @ CHID .... ~•.•····~······~·······~·..... ·:APPELLANT·· .. :;·. . . ,,. ; " ',·,•; :· · . . '. . ,: ··. \ ,·., ,·, {' . ,... . . , J/E.~SUS '... . , . .. . .. - t L . ,• . - . • :·;,i} : · •r · · · · , .r.· '· · •: ·.'· :. !• :~/ •/, · "':1,j'-,; · , ·." . THE REPUBLIC ■■ ~ ■■■■■ e ■■■■ ~ ■ ~~•••••••••••••••••••• .. •••••• ■■ 11 ■■■■■■■■■ RESPONDENT • ~ ,f . o .,.. • ( • • .' 1 I • • ' •' :' •, • ; : : 0 ~. ' ·:(' • • 1 , ' • ,.... . ,, t ) \ (} f •~I, / • '". • • t . . ., t, l ·. ; r ' . . •~ ; ,, i ' . . ... ,.... . . . • . . before the ,District Court::of ·Mwanza at. Mwanza. He was. convicted.- as·· :;'•,·.:•:. '. ..... :· .· .·· .- ·' : . . ,, ..-·;,,· ·.•.--:. ; .·.. ··:.:c:-u, charged and sentenced to th'irfy '(30} years imprisonm,er:it. Being aggrieved .;..__ .~<\', j" ,1·:· .. ~;~::.~·;._:'.i • f· ... :_1. t," ·1 • · .•. by the decision o_f the_ District Court, he has'lodged this·appeal.; ..e . .. . ~ . • .• ,- i ~' ..... :·- t ., . •-'. : ~ '\- ;I . 1.' ,· • . . ~. . . ... .. _' : :: . . ! • ,~ ;i': ··- .. In his petitior:, of appeal, the appellant filed six grounds of a·ppeal: .. .' . Basically, his main grounds

of complaint against_ the decision of the District . . .. . },•• .. '.! ~;;; . ~_:/: -~:-,,1; ..-.. ~-r'-·. . ... t. Court, are basically. as follows:.~ First;-that, he. w~~- ~r~ng,IY, _c~~vi~ted ~,/·· • ~ • I • t •' ">o .. : ~--.. ,1•• ~ :• • •-': \,, ri ' . l • • <~. •, • •:.' • ,: , · • I" 1 I , _"; + "•, • • ,. .•· the basis of,very weak prosecution visual identification evioence. S~cond, . •' ' ..: _'; •~ ', :•,. !;. : ,".' i ••::•:·!.;: l. ·. •; t".!.;,., . . f • ,. . •:· I : . < •:-, ,.···•• that, he was sentenced-against the, ...~e~tencing principle ·as he;was 17 years .... · .. zr; . .. . , l I I.,.. . .. 4 .. • • • -: 4. : ·: C. _ • , / ! ~.-_.;~.--,.: ':--•·. . .:,.~ . .. • ,· ' L : •. ~ .<::~::•:: ;:<•·•: ·"'~--- '} ~'. _,.. '' .. ' ' -·1 ~ . ?~.· . · •\':\ C '; ,~;r by then. Third, the. identification· parade was not properly conducted. ' ·• ·\ .' • 'I ·_ Fourth,. the doctrine· of recent possession was wro~gly invoked in finding . him ' guilty_ . as charged. . . Fifth, the trial . magistrate . . erred in law by relying on the caution statement which was retracted. Sixth, the defence of the ·)3ppellant was ignored by the trial magistrate. He accordingly urged this ' ~ '. . '' ·1·• . .....,..,, .'1\';' ~:Jr'"): '. court to allow his appea_l; quash the conviction and set aside the sentence : 'of imprisonment imposed on him. . I For the respondent Republic in this

appeal, is Mr. Obadiah Kajungu, Learned State Attorney. Mr. Kajungu did not support the appeal. Much as .he agreed that the dock identity was not favourable, he emphasized that, a .·_,r--,_.· .part from the visual identification· evidence, the trial court considered. other : "' : ~ -. ... ·e_vidence like, that the appellant was found with the stolen property (motor cycle) and that, a bag containing the appellant's clothe_s was found at the . sc~ne of the crime. More so, it . is Mr. Kajungu, contention that, the . ,· \ appellant was identified. at the· identification parade. ·.. : . The prosecution case against the-appellant was built on the evidence ·of six· w·itnesses. These were Chacha Mwita (PWl), Christopher Marwa. (P~2), Inspector Kim_asa (PW3); E. 6921 David Leonard, (PW4); E. 9453 · '/.~ I o: Sgt Thomas "(PWS) ~l)d Matutu Mtundi Nyanduru (PW6). · 2 PWl told the tria~ court that, on 28th J·une, 2010 he wa~ at Mabatini bus stand. While watchi~g a footb.all match nearby, He was informed that, . .., PW2, whom he left his. motor ·cycle with_, had been stabbed with a knife and the motor cycle has been robbed. According to PW1, after a thcirough .. . ' ' search, the appellant was caught at Lamadi with the motor cycle. Another piece of evidence came from PW2~ This witness told the trial court that, on the fateful day, while at Mabatini, PWl gave him his motorcycl_e so that he

could refuel it: Then came the appellant· w~o hired · him. As they were approaching Lake primary school, the appellant stabbed PW2 with a sharp object on his head. He then fell down. The appellatit tried-to stab PW2 on his stomach but as he was protecting himself with his .: .-·: · arm, he was stabbed in the arm, and the appellant took the motor cycle and disappeared. The matter was reported to t~e police and a search ensued. According to PW2, · at the scene of the crime, a small bag was found which was taken to the_ police. PW3 was the police inspector who conducted the identification parade whe_re PW2 identified the appellant. . . PW4, and investigations officer told the trial- court how ·he went to Lamadi ,. to pick up the appellant together with the motor cycle, and a knife which allegedly was used to stab PW2. PWl was the Police Officer who t9ok the 3 J~.-~t,-.: \/. ?. ;: -_:, ·~:~·· ~; :: :-~~-.~:·z. :.·\~: ·:s. - .'.~~.·:· ·.. •,.'' appellant's caution state.ment on 1st July, 2010. He told the trial court that, ·in his statem·ent, th~. appellant co11fessed to have stolen the motor cycle '."':I' ' :t:-· ., '· from PW2 •. Finally PW6, the owner of the motor cycle testified. He told ., the trial court that; on .28th June, 2010, he_ received a report that his motor l,•,,-. ,. :;:t},. :cycle had been_ stolen. He tendered in court the registration card and ,, ~-. '. purchase

receipt which were admitted as exhibits P6 and P7 respectively . ., ·:: ·;~· :-~..... ,., tt: .. C h ··.'. The appellant gave sworn evidence in which he· denied committing . ' the offence. The appellant claimed that, on 26/6/2010 he was at Bunda to see his grandmother. On 28/6/2010 while ori his way to the bus stand with :.~-:{ . ;~~~:: ;· ... ·':~-j / ,:r:~ ~ ·.!' ' his relatives;. he was arrested by the police who took him to Bunda police . ;~.~ - ' :i~;: ~:~ ' ... · statio~n. While there, the police asked him where he got ''bhang'~ The next *\:',, .'_ ·~~;·. . .• day he was· taken to Lamadi police station· where he stayed for a day and "l-;, :l~..-. , ,'), f'•.' he was then taken to Mwanza police station where he was kept in· a small -;:·-~~,' '•" . :,,.. ~ rqom and beaten. Therefore, he was arraigned in court. ·~~;.~i,\ ; ~~:41~ .:, :· ~ . ' :{fi :~ . . . . . ' . . In convicting the appellant, the learned trial magistrate found PW2 ' ~ ~~;... . -. ', &;:;·.. ·Oto be a credible witness who recognized the· appellant at the time he hired :;tY '". . ·, .·.•' ;: ~ ,. . .him since there vyas light from the nearby shops, and also identified the appeliant at the identification parade . '··1·. ., . 4 f ·}t?,····•••.· if./::::'·-~~ . :'_i•:·;::· ,~ _·_ ... ·- With regard to the_.first ground of app~al, Mr. Kajungu, Learned State . , · Attorney agreed that the dock identity was not

favourable as to the • • • • • ' & intensity of the light. In his judg_ment, the ·trial court magistrate seem~d to ·.'' have satisfied himself as to the identity of the appellant. At page 3 of his typed judgment, he had this to say:- . ""i:;,,. ' ' • "Secondary that, the PW2 identified the accused well as at the time he hired him there was light from the nearby · shops. That's why even in the identification parade he manages to identify him. " Neither PW2 nor the trial magistrate took any effort to describe the . intensity of the light during the commission of the crime since it was during night time. The importance of proper and correct identification in cases whose determinat_ion hinges on •identification cannot be over emphasizes. In every case in which there is question as to the identity of the accused, the fact of there having been a description given and the terms of that description given are matters of the highest importance of which evidence· ought always to be given; first of all, of course, by the person who· gave:the 5 ff9_~_~f./~:~:;-~---: ".-i: ··•:"·~~:'~ [.-_~r~.- ·:;:·~~-~:~~.·_-~t ·, _·.-. -·-·: ;~f :_. 't->-:' {~,;·_, :'.:1>:: ·., ' :.-,.~; ' , ~-:\•' i, . • ' : description and purport to identify the accused, and then by the person or Cl• • • . • . t ,• . ' .. - persons to whom the description was given. - . In the case of laribu Al)dallah VR, Criminal

Appeal No. 220 of · ·. ;1994, , the Court of Appeal of Tan:zania . observes thus:- "In matters of identification, it is not enough merely to . look. at factors favouring· accurate identification. Equally important is credibility of witnesses. The conditions for identification might appear ideal but that is not. " ,r, ·. , _In this particular case, all what PW2 told the court was that, he identified the appellant because there was light from nearby shops. It is :·-.!?; i• L'•..,,. ~\-. _. h~w trite law that; courts shou-ld closely examine the circumstances in .· which. the· identification by each_ witness was made: The Court of Appeal - _has alrea9y prescribed in sufficient details the most salient factors to be ·considered. These may be summarized as follows:- How long did the ·_ Witness has the accused under observation; At what distance; In what ,,.•q'; • ~:,..,: · light; was the observation impeded _in ~ny way, as for example, by passing ' ' •.· ,· i}~:: -.: traffic ,or a press of people; Had the witr:,ess ever seen the accused before .·.~'i;. ., J ,.- :i.:·.~ , ._. ~ i .. if yes how often; etc. :f.~);: 6 -~:,:.r·""'.... ,\J·\ ~.,.-, - · According to the testimony of ~W2, t~e appel!ant hired him after they had bargained the fare. It is not know if PW2 knew th~ appellant before the incident. The appellant being a passenger definitely he stayed at the back of motor cycle and

therefore, somehow, itwas not easy for PW2 to observe the appellant. As if that is not enough, PW2 never describe the · intensity of the light. To crown it all,-- one but can conclude that the circumstances of the identification were not favourable (see: Waziri Amani VR [1980] TLR 250) and therefore, the trial magistrate ought to h_ave taken caution before convicting the accused in reliance on the correctness of the identification. (See also Shamir John V.R, Criminal. Appeal NO. 166 OF 2004 (CA unreported) With the above, I hold that, the identification -, evidence of the appellant totally failed to place the appellant at the scene of the crime. PW2 might h.ave been honest but mistaken. I. thus- allow this ground of · ·. . , appeal. -6 ~- With regard to the second ground of appeal, ~ince I have allowed the first ground, I need not labour on this. When cross examined by the appellant, PW2 told the court that the robbery occurred around 10.00 hours at night and that' he identified the appellant at the identification 7 :}r . _;,_ /.· , .•;:,~.; . ·,. :, .. . , ··.i;parade. If· PW2 did identify the appellant that .material night, he could ' • I • ... ~ . ! ·. · ': have given a description of the appeli'ant before the identification parade. \' .. :·/f};;., . .:i: He was silent. Whe.n . ' .PW3 . , . .;,,,,.. . wanted. to tender PF No. 186 to prove that the . appellant was ideritified

at the· identification parade, the appellant objected r, • I · to its tendering claiming that he was beaten and he sustained injuries in · .., ·: his arm. Despite the objection, the court held thus:- "Objection overruled as the accused will prove that if the parade was. conducted without his consent or obtained ·by force in his defence. ✓, • ~I. ?>; ·.•. .. ,.. · Thereafter the PF No. 186 was admitted as Exhibit Pl (see Police ·:.f· :r . .. ·.General ·Order). : t \,Vith the above therefore, I hold that, the trial court erred in - :·:°a,drnitting Exhibit Pl without first conducting an inquiry, as required ·by 1\ ";',_': .·, ·. ;,.,/; · . ., the law If.,:; . ~e third ground of appeal is on the age of the appellant. The {}; ·.;; · .appellant claims that, at the time of the alleged commission of the offence, 'he was seventeen years and therefore he was not· eligible for a prison . · ,term, in t~~ms of section 119 (1), (2) (a) (b) and (c) of the Law of Child "., ... 8 ,,,- Act, No. 21 of 2009. The particulars of the accused. person . accompanying ' . . . ,,. the charge sheet read as follows:- "ParticLJlars of the Accused Person Name: Rashid s/o Selamani @ Chid Age: 17 years Tribe: Zanaki Religion.: Moslem Occupation: Student - Nyamisisi Primary School: Resident: Kiabakari - Musoma Dated at Mwanza this Id day of July 2010. (Signed) State Attorney. ·. The appellant was charged on the

3rd of July 2010. Judgment of .the .. --· trial court was delivered on 10th March 2011 eightrnonths thereafter. The record is silent as to when the appellant turned eighteen as there is_ no evidence to show his date of birth. Under. such circumstances, the .,!.' . appellant, I hold that, this ground of appeal has merit. •· J 9 ; ~".:. .:-:-~,;: ~-~~'._~· . . -.."•r · . \ ,, ~,-.: ·. .· ·..>,.- . ~.•. ,•' ·-~ .,.. . In the fourth ground of appeal, the. appellant has raised several •.' - •. t'~ • I issues, which hinges on the doctrine of recent possession. He ·submitted · that, ownership of the property stolen was not· proved to the tilt; Exhibit .P3, the motor cycle was not tendered by the person or persons who . arrested him from Rub 9na area, that the prosecutio·n failed to bring one Mtanga in court to testify· or corroborate the prosecution evidence; that :. there was no prior description of the property such as· special and/or '. peculiar marks before .the exhibit was shown to the victim, and, the objections of the appellant were wrongly and unfairly adjudged by the trial ,. ·court. .. ·' -:~·•-., ~:\:r•,, According to the record, it was PW4 who was ordered to go to ..· \amadi police station to pick up the appellant. PW4 told the court how he :\,vent to Lamadi and found the appeilant al~eady arrested and that, he was ~:{, ·! 7'; .__ -,.L · handed over the appellant, the

alleged motor cycle with Registration No. .};~-~ . ._ ....... ,,..·" j.::,. T608 BEQ Sunlg and a knife. PW4 then proceeded to police Nyamagana 't(~ : 1.:, and handed over • .the. appellant • together' • with the exhibits which were I • • !\~--~ •. i~~~- -',~dmitted as Exhibits P2 and P3 respectively. Also we have the testimony of PV\(S., the investigating officer. What he testified was what he read on -.·, · the case file, since he was stationed at Nyamagana c~ntral police. 10 .\s}:~i. , .. _.:_.1~~z _·, ;;;t:··:i ::·~:·- :(.:\,.'. - : \ ' ,;:..ts..:.,'!".'·.'..: ·, ;_ -~~ . .,._ . . . - -·. :-:-~ - '.'_~::!. :,;~f '•"?~ .::. :i}):; •. ~J-l•.: . '.~:. .i··: {7 .- '' >~· .. ' :.·., -~., ' ': ::_. ...:~!.t '~t . . : . .· 1 , . ' .• · \• .. ~ • ; ;·t· First and foremost, I take n,9te that, of all the prosecution witnesses, ··· , '.:-' ::::fj • . • ,~ . . • • .-, ' • • ' • T ••; • '\>: ;~}; . ' . ..~ . : ,~' -~· . ~ nobody testified to have seen the appellant with the motor :cycle. f¢cording-- · : ... ·i: . ·-)~ • • . •' . • ' •: :,~>I~ to PWS, on 29/6/2010, the app~llant, while at. Lamadi, tried to sell th~ ..', ·· · · · _. ;:'.< • !' . • ; ; -i. • •• • • '. ', • • • ' ,;,. • : •.~ •, ' •. ' • ,J:,_ •l motor cycle or to get oil so that ·he could contin.ue with ·'his journey': While 11 doing that, good citiz(;ns" suspected him and report~d the matter· to .· · ~· J f ·., ;. Lamadi

police. He further told the court that, as soon as he realized that ~e _._' ,:i} . . was under surveillance,. the appellan.t tried to flee, whereas, some ./_.' r . . .~·1·<· ' . •',, motorists who were within the vicinity chased and caught the appell~nt i, somewhere near river Rubana, .and surrendered him to Lamadi police station. This leads to the question on why the good citizens were not called : . ' ; ;~.' to testify or more worse, even the arresting officer at Lamadi police did not . ·\· -:.''i ·' testify. In his testimony .PWS never mentioned abolit the appellant having a stained knife when he was arrested. Where then did the knife come from? Lastly, if PW4 was the one who went to Lamadi custody of the appellant and the exhibits and took {Motor cycle and the knife), how tome he :·~ Wq_~. the -one who tendered them in evidence, . instead of the arresting officer at Lamadi? ...... ' - In all fairness, it seems the appellant was arraigned . on the basis that· . - '. • . - . ~;:,t . . ·• ... . . ~ ~~~~1;: ' .. f ' . -~· he was found in possession of a motor cycle reported. to. have · been • ,·_1 .''' ,. • .,- • • --': •' < ...... .": r. ..•\1' ; .• ,-1.-·· ;~- . ·. , ' '. •.' .. 11 ' ,.,., ,· .. ~i,~.......·., ., :·. ,.-, _.-;~,. ', - . . , .. .... , , ll .. recently stolen •from PW2. In· the· case of Mustapha Darajani V. ~ep·ublic, Criminal Appeal No. 242 of 2008 {CAJ it was

held that, for ~~t-· .' the doctrine of recent possession to apply, it must be established, inter .~. ·-~~· 4, alia, that the property was found with the suspect, or there should be a nexus between the property stolen and the person found in possession of the property. I should add that, to prove this nexus, there must be )i~- .;'; ,. ; ; · .llnassailable evidence on how the property changed hands up to the time it I_., .. ' ~~; '"'* . . was found in the possession of the alleged thief. . ,- - . In this particular case, I have noted that, ~obody has testified in. c·ourt to say how he arrested the appellant with the motor cycle and that, during the arrest, he h·ad a· knife. Funny enough, PW4 who went to. , - .- ---- - -·------· - . ' ~-;-•· -:-:. --~,--· ~----;---.---.------ -- - ---- ··- Lamadi to pick up the appellant, was •also handed the motor cycle and a knife. In the case of Majid John Vincent @ Mlindangabo and Abdul ;;?-:' : I. .~.'i,c ' '-~ .. ..,.,. ,. ~ Selemani Hamisi @ Miburo V. Republic, Criminal Appeal NO. 264 i0'· '· :.r -of 2006 {CA) the Court of Appeal had this to say on the chain of custody . ;, ~;. . : ~;,~ of exhibits:- ·~ ' . "............Indeed, that would help in allaying and fears ,,'; ! ··~~", ..... - ... . about the "chain . of custody" in handling · the exhibit .·.-;._,.. ' [jJf ·::\ J before its production in evidence at the trial. We say so .~"

. ?~'.t ·.· t_•:,c '' . ~~ 12 '•·.' . tr\./:_·, ,. 1\1;:~\ . ,. ;.....;. ..., ~!-;:;::,., _:' .;:_ · .:· i'. ' . -. ~- ·'~, ...: ........ .'.... ,_ ..,. __ because presumably in the course of tendering Exhibit · . PW4 would have been in a better position to' tell the . court how it was handed· from the date of the _t. . ; .· ~ = ~ -- , , appellant's arrest to the date of its production in evidence at the trial such evidence would have been important in ascertaining whether or not there was any possibility of tempering with the exhibit in the process........ " I think with due respect, the issue here is whether or not the exhibits tendered in evidence connected the appellant with the principle of recent possession, taking into account the way they were. handled by different ·· people. Taking in strid~ the Maj.id· John Vincent Case (supra), there is a · possibility of planting of exhibits, which in my opinion, watered down the •:' principle of recerit possession, which at the end, may. have· resulted into miscarriage of justice. With the above observation, I find that, this ground of appeal has merit. ,, : ·, . 13 • • i ., -i??{:~:~;~;.~:;;.:.··'" :· -~-·~ :.-;· .~·.-:· ·/.~---~ ~ •~ ,'-;i., ,,-·.. . ~ 1--~·:, : t~, ·. .. ,•. The fifth and sixth issues n~ed not detain me. The above grounds are ·~n6ugh to determine this appeal. On its totality, I find that, the prosecution :i bas failed to prove its case as required by law. There is· no enough evidence to support the conviction and sentence. I would consequently allow the appeal. The conviction entered is quashed and the sentence set aside. The. appellant should be set at liberty unless he is held on some · other lawful cause. Right of appeal explained. A.E. BUKUKU _.. -~-. -·--.

JUDGE ;_~:/> ' i Delivered at Mwanza this 20th August; 201~ 14 :.-· -··- . . ·... _:· __