20100224 TZAC Arusha

YUSUPH NCHIRA .........•.............•. .I...•.•.•.•••••.•.••..••••.•.••.•••••• APPELLANT '"" VERSUS . I , THE D.P.P .....•.....••...•........•.....•....•I I ••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the Convictioh of the High Court of Tanzania at Arusha) · I . i (Bwana, J.) I .. . dated the 14th day of May, 2001 1 ' I in - Criminal Appeal No. 56 of 2006 • ---- I____ _ ' j JUDGMENT !:OF THE COURT 15th & 26 th February,2010 NSEKELA, J.A. I This is a second appeal a;tter the appellant was convicted by I District Court of Arusha for the offence of armed robbery contrary to sections 285 and 286 of the Peha! Code Cap 16 R.E 2002. He was ' sentenced to a term of thirty 1(30) years imprisonment. ,_. I His first I '! appeal to the High Court was di~missed, hence t~is second appeal. I 2 At the hearing of the app¢al, the appellant was unrepresented. He did not wish to elaborate 011 the four grounds of appeal he had I l filed. The grounds of appeal were understandably inelegantly drafted, but the issues involJed were (1) that the evidence of identification against him was dnsatisfactory; (ii) that the second trial l magistrate did not comply with .section 214 of the Criminal Procedure 1 I I Act, Cap 20 R.E 2002; (iii) thqt PW4 gave evidence during the trial

I I I despite the fact that his name', was not listed during the preliminary hearing and (iv) that the ourden of proof was shifted to the appellant The respondent R~public was represented by Mr. Zakaria 1 • Elisaria, learned State Attorney, who addressed the Court in support I ... of the appeal. On the question of th~ identification of the appellant at the scene of crime, the learned State Attorney sul:Jmitted that a gang of I I bandits, seven of them, stor~ed into PW1 's room armed with a bush. I knife, demanding money from her. She was beaten and lost some of I her teeth. The room was illutninated from electric light. With the aid of this light, she was able t~ identify the appellant. She raised an • I 41 3 alarm after which PW2, Estomi/ Jonas and PW3, Francis Estomii ca.me to the scene. These witnesses were neightbqurs who engaged the I , bandits as they exited from th~ house. In the process they managed 11 to retrieve some of the stdlen goods. PW2 also identified the ! appellant whom he injured dn the head. On the strength of the ~ . guidelines set forth in the cas~ of Waziri Amani v Republic (1980] • Ii , ' i TLR 250 at page 252, the learned State Attorhey concluded that the evidence of against the ap9;e11ant was very. scanty to support the I: appellant's conviction. The d:ext complaint related to the second trial I Magistra~e's non-compliance with section 214 of the

Criminal m-•.,., ► Procedurb Act. The case w~s tried by two different Magistrates, but 1 ; I the succeeding second magistrate did not inform the appellant of the necessity if need be, of ricalling witnesses. The learned State ' Attorney submitted that this; was not an issue before the High Court and hence can no; be rais~d now. The third ground of complaint I I related to the calling of PW4 to testify during the trial when his name was not included in the list 6f witnesses when the preliminary hearing /1 i was conducted. The learried State Attorney admitted this fact but I j, i i ' • 4 submitted that there was no +iscarriage of ju.~tice. The appellant was given an opportunity to cr1ss-examine PW4. The core question in t~is appeal is th~ identification of the . .,.. . I , appellant at the scene of crirne. As stated before, this is a second I appeal and so we are guided in our approach to the evidence according to the principles pet forth by this Court in numerous decisions including ·Directo of Public Prosecutions v Jaffari 1 Mfaume Kawawa [1981] TLR 149. The Court stated as follows at page 153- •" The next import~nt point for consideration and . decision in this c se is whether it is proper for 1 this court to evaluate the evidence afresh and i come to its own conclusions on matters of fact. l I This is a second appeal brought under section ' 5(7) of·the Appe{late Jurisdiction

AcC 1979. The appeal therefore!' lies to this court only on a point I I I ' or points of law~ Obviously this position applies /· only where thete are no misdirection~ or non- directions on t~e evidence by the first appellate ... 5 court. In cases w/iere there are misdirection's or non-d.,rec · t· 1ons orii th e ev1uence, ·rt . . rt a cou 0 f second appeal is eJitled to look at the relevant l . evidence and make iits own findings" I 1 J 1 i . ! Ii Both the learned trial rr{ gistrate and the learned judge on first. i. \ ;I , appeal, emphasized the fact lhat the appellalt was without mistake. ' .I ' i· identified through lamp light.! The learned judge stated thus:- J I ~i "On the issue I, of identificatihn I . it was uncontroverted I that the • apP,ellant was l 'I '! l1 \! I' ~ I! identified by P :it, 2 and 3 witj the help of ' !l1\ I 1\ . l i i lamp light. Pl1V1I again identified the appellant .. I l\ 1 ! I ! I at the police st.Jtion I am satiJfied that the . .! ,. ; !,, identification was1 proper and left no doubt as J! i' ri i; !'· .t \ to the identity the appellant a] being one of I 1· '..,I i •I !· : 11 I those armed r1bber.s who attaCked PW1 that night.'' . 'l I I I . .c~~·.:..r ./~ .. . /. \, .. ./.,. l ""1· ~ .. : ·''· ;-'• 6 With respect, we are unable to agree ·with this conclusion. I These conclusions are not supported by the evidence on the record. ,1 There are a

number of factors that have to be taken into account. PWl; PW2 and PW3 did not explain why t~ey remembered the ... appellant as the culprit. Had they seen him before, when and for how long. The incident admittedly happened at night and we are told there was lamp light. Fair enough, but hqw bright was this for an accurate identification. These witnesses did not shed light on this. There is no evidence on the record that PWl identified the appellant '' I' at the p¢1ice station. Again who are these people, apart from PW2 i and PW3: who responded to PWl's alarm for help? With respect we agree with the . learned State Attorney, that the appellant's ,,.. identification was far from satisfactory! It could not be relied upon to • I .. I convict the appellant. i ii . \: ·\:. We n·ow come to the second ground of complaint, namely that •. t ! . .., there was non-compliance with section 214 of the Criminal Procedure Ii Act. The alleged non-compliance was that the tase was tried by two If i Ii l trial magistrates but when the second trial magistrate took over the I 7 conduct of the case, the appJllant was not informed of his rights I under section 214 (1) of the Oriminal Procedure Act which provides I as under:- 1 i 11 214 (1) Where any magistrate, after having heard I and recorded the v,thole or any part of the I . evidence in any tria'i/ or conducted in whole or in part any committal

Jfroceedings is for any reason unable to . completJ the trial or'- the committal ' ' · proceedings or he iJ unable to complete the trial ' I I within a reasonable time, another magistrate who :: I: has and who exercfses Jurisdiction may take over I and continue the trr or committal proceedings, as the case may be, ahd the magistrate so taking . I over may act on //the evidence or proceeding recorded by his Jredecessor and may, in the ,; ,i case of a tria~ and if he considers it • 1, ,,' necessary, resummon the witnesses and I recommence th~ trial or the 'I ' committal proceedings'~ (e~phasis added) j . 8 2. Whenever the pro~isions of subsection ( 1) apply I • the High Court may, whether there be an appeal Ii ,I or not, set aside aty conviction passed on the I I I' I evidence not wholly! recorded by the magistrate I before the convicti1n was had, if it is of the opinion that the accused has been materially I ,, ·prejudiced thereby arc/ may order a new trial'~ I The! law before this a~endment was to the effect that the I . I magistrate who took over ~as mandatorily ,required to inform an I accused 0f his right to de~and that the witnesses who testified j II before be!summoned to testify{ before him if the appellant so desired. " I I I (See: Liamba Singnga v RJpublic [1994] TLR 94; Criminal Appeal No. 60 of 2001, Ndeoya r~adayo v The Republic (unreported). 11 I The appellant was

charged ~n the 25/3/2004 when the old section • 11 i had been amended as quoted! above. The magistrate who takes over I th e WI"tnesses now has d.ISCret"IOn tO resumron i an.d recommence th e trial. This was not done Jnd the appellant was convicted. The j . evidence of seven prosecuti;on witnesses w~s taken by Mr. P.W.D I, I ~.~-~_::=:==··:.~ :~ J-·:._ :_,'=·----- L ·~--"""'·'•-·"H"""'-··£=,.~o-----------~----•··•··· .-.,, ..............·,_.........·.. -. 1· 9 '' .·... __,; ' .:'/,·_:/ ,;·_,.c-< Mbuge, Senior District Magistrate then Miss R.N·. Mugissa, Resident :/ ' ,. / . I Magistrate took over and on the '3/5/2005, he made a ruling that the appellants had a case to ansWe\-. The learned jResident Magistrate I I ·1 I proceeded· on to hear the defende 1: case, wrote thbI J·udgment in which I I . I , she convicted the appellant. Th ere was no oblidation on her part to 1 I : /i ,! inform the appellant to dema~d that the wit1esses who testified 1 before the first magistrate be rdsummoned to testify before her. On appeal to the High ·court, th~re was an opining under section 1 1 I 214(2). U~fortunately, in his petition of appeal, the appellant did not , I .. . I I raise the issue nor did the High1 Court take up the matter on its own

II I motion. it has now been rais~.d before us. rnl. vi~w of the decision I' we have arrived at in this apperl, it is inappropriate for us to discuss and detei'mine the issue, whichlwas not fully ar9ued by the parties. " /i I M. I . i . · We now come to the corplamt that PW4, Leokad1as Solomon, was not included as~ witness /during t ~ a r y hearing. Rules 4 and 7 ~f the Accelerated Trial and Disposal of Cases Rules~ No. 192 &1988 provide as under:{ --- ~-·· ; -~-:::-~-~~~·.:.:e::;: . --&,;.;..-·- ~ . - .·-~- .·. - .....-.-::: . =:.::_-=--~---· . .- -----..- :·· ' __ : -·· _ . . ., ·-· . ···---· __ ,.. __ -- ....... --- ............ -- -·-·- --~~~··;;;;;·;;;::;.,.,.,,.,;;;;:---'::;:..._._.~-·---·---'-· ·-··_·'·:_ ... _ _···..c-t-_-· -~~·······~--.-:.....=..:......:;,;.:_·-.---=····-=-~ -···- . --··•·- ,._ ....... __ _ . ---·--····------·· ---- I "4. The person p~osecuting shall in every trial ,. I under these rules, prepares, as clearly as I possible, the facts;; of the case wh{ch shall be I read to the accµsed and explained in a languag; he can uhderstand. I 7. The court may giJe notice to any person who I .. I is likely to be called as a witness after a preliminary hearin1, that he may be required I' ! to give evidence before the court a date to be - I \ specified in the nbtice and such (10tice shall : i ' . I . , be deemed to . be summonses I duly issued and I

. , served upon him to give evidence as required 1 in the trial'~ I , Ii .11\ ·i•.,· These rules read togethe~ with section 192(3) of the Criminal Procedure Act do no requfre that names of witnesses should be . I i 1: given during the preliminary hearing. i There is no such I I requirement at all. I 'I I ,•: . ,, :;;,,~0:.'..."C;:C..··-_• -., _- . _ :_ . ., r __ ---~ _.,_ ~C---' = ., _ C -~~--•--- .., . . _., , •• , '·-- • ,::: ~ 1 · ~ec. :-,_,>-=.:<:_- --= :;~;;~~- _;c ·__ •· •·. ~ = ~•- ... . __ ---- 7. ' • , ~ I 11 :,'.,_- I I :· ,, ' / Lastly, we come to the appell~nt's complaint that the burden of / proof was shifted to the appellant, instead of the prosecution proving its case beyond all reasonable doubt. There is some merit in this complaint. In the course of his judlgment the learned judge on first ' appeal had this to say:- I "In his defence the appellant stated that on the material day he was on Mt. Kilimanjaro I , - together with some tourists. I He described - his ! employment as a potter. However he failed 1 I ! to produce evidence in support of that i averment. ., He deniecl to have taken part in I 1 the said robbery'~ ( emphasis added) ' In his defence, the appellan~ was apparently putting up an alibi. i In Criminal Appeal No. 117 of, 1999. Ali Amsi v The Republic I (unreported), this Court observed as follows:- 1 ! "It is of course not the law

that I ' 1 once the alibi1is proved to be false, or is not'found to have ,;;;:;,,._ .-," - ~ . : . . . . . = . i . - ~- '.-- ----'~""-""='°·==---"~-'•~"'•~~•-=•··•~-:~ .... '· -· · ·.. :---- , I ...':... ~..__:__:,_ ;-r:,~ I _L, .~ ·----··,··-,_7_ ..... ·. :c;· .• -.. •::-:-..~- C-· ------- __ _.,_ .. :-.· .·_,:: , ~ 12 ,,, raised doubts~ the task of provingthe ahcused person's guilt is accoJplished. There must be st)}/ . credible and ) I it 1 convincing ipfosecution I, evidence,· bn its own merit, . ij to bring home the alleged I offence". ~lmphasis addedj . I 1· ', t lhe appellant had only! to raise doubts In his presence at the scet\le of crime and the prsecution had to prove its case beyond reasonable doubt. The a1rellant's story nJed not be believed. He had only to raise a reasonbble I doubt . and ~ot to prove anything. . In the result, and for the foregoing reasons, we allow the ,. I appeal, quash the convJion and set asi, e the sentence imposed upon the appellant. Hl is to be releised immediately ~n1eSs otherwise lawfully detainld in custody. 1 I . !. ' ) i ,_ I V~~. 13 I' It is so ordered. i' . t DATED at ARUSHA this, 24 th day ofFeb uary, 2010 . . , 'j ',~I.R. 1 , NSEKELA JUST!ICE OF APPEAll I' E.M.Ki.Ji .RUTAKANGWA .

JUSTICE OF APPEAL I l l \J\1.S. MANDIA : JUSTICE OF APPEAL I certiJ that this is. a true coi of th . ~ . . 1 M_/~. MALEW DEPUljY REGIS 1.RAR I :t -J"" ~- ' COURT OF APPEAL 1• .r \I'.