20100512 TZCA Mwanza

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IN THE COURT OF APPEAL OF TANZANIA

ATMWANZA I I (CORAM: MSOFFE, J.A., MBAROUK, l.A. And BWANA, J.A.} I I CRIMINAL APPEAL NO. 27 OF 2006. I 1. THOBIAS MANG'ERA MANGO }···············~···· APPELLANTS 2. SHUKURANI MASENGENYA MANGO I 1

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VERSUS I THE REPUBLIC .................................................. ~- RESPONDENT I (Appeal from the Judgment of the High Court of Tanzania at Mwanza} : I I (Masanche, J.} I

I I I st Dated the 31 day of October, 2005 1 • I m HC Criminal Appeal No. 201 of 2004

JUDGMENT OF THE COURT 11 May & 13th May, 2010 BWANA, J.A.: I The two appellants were among. five persons who ! were charged I with the offence of armed robbery contrary to Section$ 285 and 286 of I the Penal Code. One of the five, Wilfred Wilbert (accu.sed No. 3), died I I in the course of the trial. At the conclusion of the said trial the fourth I i and fifth accused persons were acquitted. The two appellants herein I 1 Ii f i and who stood trial as first and secohd accused, were convicted of the 1 i I offence. Each one was sentenced to thirty (30) years imprisonment. I i' I Aggrieved by that decision of the trial court - the District Court I I of Mwanza at Mwanza - they uns!ccessfully appe lled to the High I 1 Court. Undaunted, they preferred this second appeal. Before us, the first appellant 1was represent .d by Mr. Feran 1 I Kweka, learned advocate. The second appellant was unrepresented. The respondent Republic was repre~nted by Mr. Jictor Kahangwa, I,, learned Senior State Attorney. 11 I ! The appellants lodged separatei memoranda of appeal. The first appellant gave six grounds of appeal\ while the seco~d appellant had seven grounds of appeal. Both memofanda of appeal ?re couched in a 1 language indicative that they wer~ drafted by non-professional lawyers. The bottom line of their app~als may be sumled up as being I the following:- i: 1. That the case against them was not proved beyond reasonable I I doubt as expected in a criminal case. I 2 ..

2. That they were not adequ tely identified as the ones who committed the offence.

3. Non-compliance with the provisions of Section 214 of the Criminal Procedure Act (the CPA) occasioneJ failure of justice.

4. The Courts "a quo"erred in law by relying J the evidence of i' an accomplice to convict them.

5. The second appellant had rais d the defence of "alibi" but it was not considered. Mr. Kweka, learned counsel, adopte the grounds of appeal as lodged i by his client although he had no part in their dralting. We will shortly consider those grounds of app :al. Before we do so, howeve;, it is proper to appraise ourselveS on t~e issues involved in this case, albeit briefly, as culled frbm the court recLd. Fatuma Said Ahmed, PW4, ust to work with Zeid Bureau de I Change at Mwanza Hotel. On 3rd of July 1999 at about 8:30a.m, two bandits struck at the said Bureau de Change and stdie large sums of money, the property of Zeid Bureau de Change. rmlediately before the robbery, the first appellant visite the Bureau. He was described 3 I. I by PW4 as a frequent customer and therefore, knowh to her although I she did not know his name. This time he did not stay long inside the I Bureau. He just told PW4 that he was travelling. Immediately after the appellant left the Bur¢au, two bandits I entered the place and at gun point and forced PW4 to surrender the 1 money she had. While Wilfred Wilbert (later charged as 3rd accused) I pointed a pistol at her, the second appellant her~in collected the I money and put it in a wallet. Both bandits then vanished. I Following PW4's description of the bandits to tne police, a team i of police officers consisting of PW1, PW2 and PW3 managed to

arrest I Wilfred Wilbert at Bwiru area of the city of Mwanza. A~er interrogation I he admitted to have participated in the robbery at the Bureau. Some I cash money and travellers cheques were found hiddeh under a carpet I in the house where he was. He then led the lteam of police I investigators to a place where his fellow bandit was. That fellow bandit I is the second appellant. He was apprehended at Balel~ Guest House at Kitangiri area of Mwanza. When searched, the appellaint was found in I possession of shs 40,000/= hidden under his underwear. i I 4 In the guest room occupied by the second aphellant the police I also found sunglasses and a jacket, both matching the description i given by PW4. She had told the police what kind of j acket the second 1 appellant was wearing and that he had sunglasses on.! i The second appellant admitted to the police that he participated I in the robbery and that the first appellant was among them. He then I led the police to Igogo area to a place where the first I appellant was. He was arrested and subsequently charged together with the other suspects. I In his defence, the first appellant denied to ha~e participated in the robbery. He stated that on the material day and tir;ne, that is on 3rd I of July 1999 at 8:30am, he was hospitalized at Bugando Medical I Centre, in Ward J4, as a TB patient. However on the 4th of July, he was I taken by

the police from his hospital bed to Central ~olice Station for interrogation. i It is important to note at the outset that this appellant jumped ! bail. After a considerable lengthy period, the court decided to proceed I with the hearing of the case in his absence, pursuant to the provisions I 5 of Section 226 ( 1) of the CPA. We consider this to hare been a proper th procedure. The appellant was arrested on 8 July,, 2003 at a time I when five prosecution witness had already testified. ! This Court had the occasion to remark in the i case of Omary I I Kijuu V Republic - Criminal Appeal No. 39 of 2005 (unreported) thus:- "...... there was also another fact which the Courts below considered and in our Jew, properly so. The appellant disappeared ... after I the event. He emerged two (2) years later and got arrested This act of disappearing ... after I the event and reappearing after so long is inconsistent with his innocence ... " (Emphasis 1 ! added) I The second appellant raised the defence of "alibi" although he . I had not given notice of the same before the start ofl hearing of the case, as required under Section 194 (4) of the CPA. We will consider I the consequences thereof shortly. · I We have noted earlier that this is a second apbeal. It is trite law that an appellate court should not disturb concurrnt findings of 6 fact by courts ''a quo"unless it is evident that there

are misdirections i or non-directions on the evidence. Likewise, if it is evident that there is misapprehension of the evidence; a miscarriage lof justice; or i violation of some principle of law or practice, then a second appellate I I court is entitled to re-examine the relevant evidence' and make its own findings of fact. (See: The DPP vs Mfaume laff~ui Kawawa- , 1981 TLR 149; Issa Mgara @ Shuka v Republic - Criminal. Appeal I No. 37 of 2005 (unreported); Leonard Zedekia Maratu vs Republic - Criminal Appeal No. 86 of 2005 - (unreported.)). I I In this case, there is no dispute that a robbery, took place at Zeid Bureau de Change. It is also not in d;sputb that PW4's description of the bandits, their attire and circumstancys surrounding the robbery immediately before and immediately aft~r, led to the I arrest of the suspects, including the two appellants. Some of the suspects were found in possession of money hidd~n at peculiar I places. The attire the second appellant had on during the robbery, I was found with him in the room he had rented at Balele Guest House. 7 I Both the trial court and the fir~t appellate coul found PW4 as I I well as PWl, PW2 and pw3 to be credible witnesses. We are hesitant to fault those findings of fact. It is oJr considered viel that the case ' I i against the appellants was proved to the required standard in a I criminal trial. I i I . That was

not all. On the questidn of identification, the evidence of PW4 is crucial. She was the sole titness who waJ confronted by i I the bandits. She had visual contact with them. It is setjtled law that in a case which depends entirely on the ievidence of a sihgle identifying . : I witness, such evidence must be ab~olutely watertight to justify a conviction (See: Yohanis Msigwa ~ Republic -1990-TLR 148; I I Masudi Amlima v Republic - 19i9 TLR 25; Ma,elo Mwita @ Maseke and another v Republic -Criminal Appeal No. 63 of 2005 (unreported.)). i The guidelines for visual identification as provided in the much I I cited case of Waziri Amani v Republic (1980) TLR 250 although I I neither exhaustive nor restrictive, nevertheless do amplify the point II we intend to reemphasize herein. Courts of law are required not to act on such evidence:- 8 "unless all possibilities of miistaken identity ~re eliminated and that the court is satisfied t~at the evidence before it is absolutely watertight.." I The trial court as well as the first appellate court held that PW4 's identification of the appellants was adequate and that! there was no mistaken identity. We do agree with those findings. The issue of whether or not non compliance with section 214 of 1 the CPA occasioned failure of justice therefore prejudicing the I appellants was considered at great length by the :first appellate judge. It is

correct that during the trial, the venue bhanged three times. The first trial magistrate was transferred before ~oncluding the case. The second magistrate had to disqualify he~self after the accused persons expressed lack of confidence in hed Whether the second magistrate acted properly in so disqualifying /herself should not detain us. The issue at hand is the application of ~ection 214 (1) I ; of the CPA, namely that when there is a change of vfnue then the accused person should be accorded an opportunity ,to inform the I court whether the trial should proceed from where it had reached I 9 I I with the previous magistrate, or it shduld start "deno v'~ There is no dearth of authorities on this subJ·ect. in the instant ca~ the issue is I I whether such omission occasioned in~ustice to the abpellants. It is our judgment that it did not. The omijsions were not tltal. Further, it i I should be noted that the court has. discretion under Section 214 (1) i I of the CPA to proceed with the hearin~ without according an accused I person an opportunity provided for under that section. i I I . On the issue of accomplice evidence, it is trite law that an accomp I.ice .1s a compet en t w1"t ness. ITh ere,ore & I . t"10n .1s not a conv1c 1 illegal merely because it proceeds upoh the uncorroborlted testimony I ; i of an accomplice (Section 33 and 142iof the Tanzania Evidence Act). The court

would, however, in an appropriate case, enter such a i conviction where it finds such evidenc~ to be true and warns itself of i I the danger of convicting on such uhcorroborated e~[idence. (See; I I Fanuel Joseph Mbendule vs Repuflic - (1989) Tlr. 221; Pascal Kitingwa v Republic -(1994) TLR 65; Michael Mathias v Republic - Criminal Appeal No. 9 Jf 2007 - (unreJorted). In the present case, it is evident that the t~ird I accused per Ion mentioned 10 I l " his co-accused persons to the police after he had implicated himself. ! This however, was corroborated by the evidence of PW4, whose 1 evidence is material to the entire case. The defence of "alibi" was raised by the second :appellant. He I showed that on the material morning, he was at Bugando Medical I Centre where he had gone to see the first appellant and one other I person. Both the trial court and the first appellate court rejected this piece of evidence. They based their decisions on the point that the i appellant did not comply with the requirements of the law as provided under Section 194 (4) and (5) of the CPA. Both subsections ! (4) and (5) are imperative. Subsection (4) requires an accused i person to give notice to both the court and the prosecution of his ! intention to rely on such a defence. Where he fails t6 do so, he is ! given another opportunity under subsection (5) t9 furnish the I prosecution with the

particulars of the "alibi" at any titne I before the I prosecution closes its case. Both sub-section were not ;complied with I in this case. Therefore the court had discretion not Fo accord any I weight to that defence. (S.194 (6)).However having considered I the I 11 I t I evidence of PW4, the courts below rightly decided to ~elieve her and ! to accord no weight to second appellant's defence of "alibi". We are hesitant to differ with those concurrent findings of factl Therefore, for the foregoing reasons, we do not find any basis for which to fault the findings of the two courts below on all I substantive matters considered herein. The appekl I is patently I I wanting in merit. Accordingly it is dismissed in its entirety. The appellants to serve the prison terms as imposed by the trial court. DATED at MWANZA this 1th day of May, 2010. J. H. MSOFFE

JUSTICE OF APPEAL M.S. MBAROUK

JUSTICE OF APPEAL S. J. BWANA

JUSTICE OF APPEAL I certify that this is a true copy of the original. c:::=& -q (J. S. MGETTA)

DEPUTY REGISTRAR 12