yohana so moris mainga vs republic 2007 tzhc 338 18 june 2007

IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURISDICTION HC. CRIMINAL APPEAL N0.59 OF 2006 (Original Cr. Case No.123 o f2005 of the District Court of Sengerema District at Sengerema Before: F.S.K. LWILA, Senior District Magistrate) YOHANA s/o MORIS MAINGA.................................. APPELLANT Versus THE REPUBLIC....................................................RESPONDENT 11/4/2007 & 18/6/2007 JUD G M EN T RWEYEMAMU, J: The appellant Yohana s/o Moris Mainga was charged and convicted of Armed Robbery and sentenced to serve 30 years imprisonment and 12 strokes of the cane. Dissatisfied he appealed that conviction and sentence. The facts and evidence adduced at trial briefly were that: On 9/11/2004, Pw2 and two other fishermen (all employees of Pw4) left their camp and went with a boat to fish. Pw1saw them leave. According to Pw2 the identifying witness, they were in the boat with his other colleagues after laying their fishnets when they were attacked by bandits armed with machete and clubs. They managed to identify only the appellant who was a former co-worker. They were attacked and forced out of the boat. They managed to swim across, and in the morning they saw their boat floating without the engine. They returned to the camp, informed Pw1 - of the mishap and reported that they managed to identify the appellant as one of the assailants. The latter reported the incident to Pw4 the owner of the stolen engine- including the fact of the group having identified the appellant. Pw2 and his colleagues also reported the mishap immediately after to Pw3 - village chairperson, to whom the identity of the appellant was given. He was the one who gave them a letter directing police involvement. The mishap was in deed so reported to Pw5 - a Police officer of Nyakaliro police post. That witness who was a police investigator testified to have ultimately managed to arrest the appellant (whose identity he was given), on 10/5/2005 - at a place known as Gambare Island. In his nine grounds of appeal adopted at the hearing, the appellant basically challenges; evidence of identification at the scene of crime, (although he admitted at trial that he was no stranger to the identifying witness) and alleges that the case was a frame up - orchestrated by Pw1who was a former co-employee. Supporting conviction, Mr. Mwenempazi state attorney for the Republic/Respondent refutes the appellant's claims. On the issue of victimization, the learned counsel submits that Pw1, (of whom the appellant claims to have grudge/alleges existence of bad blood) did not testify to have identified the appellant. 2 Regarding identification; he submits that according to the evidence on record, there was sufficient light at the scene; Pw2 knew the accused before (a fact admitted by the appellant); and that the witnesses (Pw2 and his colleagues) made immediate report of the incident and identity of the culprit to Pw1, the owner of the stolen property; to the village chairperson Pw3, and to Pw4. That was how the report finally reached the investigator Pw5. I have considered the above submissions in light of the evidence on record. The evidence clearly indicates that there was light at the scene of crime; that the appellant was no stranger to the identifying witness Pw2 and his colleagues; a report of the mishap and the identity of the appellant was made immediately by the three people. The latter fact is of significance as held by the TCA in Karonya & Makoye V R (CA) Cr. Appeal 46/2001 (MZA - subregistry) that; "ability to name a suspect at the earliest opportunity is an all important assurance of his reliability similarly delay, or complete failure to do so, should put a prudent court at enquiry. " In view of all this, I agree with trial court that identification of the appellant was watertight. It is in material that not all the three persons who were attacked came to testify. In relying on the evidence of Pw2, the court acted according to law - Section 143 of the Evidence Act, 1967 as discussed by TCA in Yohanis Msingwa V R, 1990 TLR 148; that court held that: "No particular number of witnesses is required for proof of any fact. What is important is the witness's opportunity to see what he/she claimed to have seen and his/her credibility" Pw2 gave positive evidence of identification, which the DC found credible at it was entitled to do, and I have seen no basis of disturbing its findings on credibility. Two, the victimization theory does not stick. As rightly submitted by Mr. Mwenempazi, that witness did not claim to have identified the appellant, and further, there was no reason to suggest that Pw2 and his colleagues who did, had any reason to lie against him. On the basis of the evidence found credible by the trial court, a conclusion which I accept, the offences charged were properly proved, and the sentence passed was proper. I accordingly find the appeal to have no merit and dismiss it. Sgd: R. M. RWEYEMAMU JUDGE 18/6/2007 Date: 18/6/2007 Coram: Hon. R. M. Rweyemamu, J Appellant: Yohana Moris Mainga - Present under custody For Republic: Mr. Makwega - SA B/Clerk: Miss Judith COURT: Judgment read this 18/6/2007 as per coram above. Right of Appeal Explained. Sgd: R. M. RWEYEMAMU JUDGE 18/6/2007 4