John Madata vs Republic (Criminal Appeal 453 of 2017) [2020] TZCA 154 (2 April 2020)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: LILA, J.A. KOROSSO, J.A., And KITUSI, J.A.^ CRIMINAL APPEAL NO. 453 OF 2017 JOHN MADATA.............................................................................APPELLANT VERSUS THE REPUBLIC..................................................... ... ................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) fHerbert, SRM, Ext. J.^ Dated the 29th day of August, 2017 in Criminal Appeal No. 28 of 2017 JUDGMENT OF THE COURT 25th March & 2n d April, 2020. KITUSI, J.A,: John Madata wascharged with andconvicted ofArmed Robbery contrary to section 287A of thePenal Code [Cap. 16 R.E. 2002], before the Court of the Resident Magistrates of Mbeya, which sentenced him to the minimum term of 30 years in jail. John Madata's appeal before a Senior Resident Magistrate with Extended jurisdiction was unsuccessful, hence this second attempt to challenge the conviction and sentence. We shall hence forth refer to him interchangeably as John Madata or the appellant. l

The background of the matter goes like this; Costa Godwin Mtalazi (PW8) was running a shop dealing with mobile cell phones within Mbeya City. On 17th May, 2016 after the day's work at the shop he closed it at 6:00 p.m. and retired. He had received some money from that day's sales and he kept it in a safe within the shop as he retired home. When he left, the night guards took charge of the premises as usual. On that night it was Agnes Jonathan Simfukwe (PW1) and Wema Mwambipile who were on duty. At around 2:57 a.m. the guards were unsuspectingly invaded by four armed bandits who ordered them to squat and remain still. PW1 did identify one of them whom she kept referring to as the first bandit. She said she managed to identify him because in executing the robbery he appeared to be the leader of the group and took a bit of time (two minutes) to tie Wema with ropes, about two meters from where she was squatting, and later he intentionally trumped on her leg and insulted her. Also, she had more time to observe him as he tied her too. She said the place was well lit with electricity lights at the shop and more light from other shops around that place. Subsequently, help came in a form of a whistle that was blown by another security guard of a neighbouring shop where upon the bandits 2

who had earlier entered PW8's shop got out holding a box and entered into a car that had just pulled by that shop. The first bandit was the last to board the car before it sped away. On 18/5/2016, Corporal Elichana (PW3), PC Hassan (PW5) and PC Mwinamila (PW6) all police officers, were manning police check points along Mbeya - Iringa road. PW3 and PW6 were at a check point at Mafinga town while PW5 was at a check point at Rugemba area, both within Iringa Region. In the course of that duty, PW3 received a call from a police officer known as Deusdedit who alerted him that there was a motor vehicle approaching Mafinga at a high speed and that the driver had defied his order to stop. PW3 was told to order the driver to stop. Shortly after receiving that information, the vehicle answering the description of the suspected one approached the Mafinga check point and PW6 ordered the driver to stop, but what followed was a drama which is told by PW3, PW5 and PW6 in their testimonies. The driver of the runaway vehicle ignored the police order and drove on, so PW3 and PW6 jumped into their own vehicle and chased it, but shortly thereafter they lost its trail because of heavy traffic. PW3 and PW6 despaired and drove back to Mafinga town and for some reason went to

the market where they parked their vehicle and PW3 got off to a shop. While there, PW6 spotted the motor vehicle they had earlier been chasing and four people disembarked from it, leaving the driver. The four people headed towards the same shop where PW3 had also gone. PW6 got off from his vehicle and approached the suspected vehicle which had pulled at the market. PW6 asked the driver of that vehicle to produce his driving licence, but the driver did not comply. While PW6 and the driver were arguing about the driving licence, the four passengers, one of them being the appellant, returned from the shop and asked, what was the matter. PW6 attempted to get the ignition key from the vehicle so as to prevent the suspects from escaping, but the driver sensing that they were going to be in trouble, rolled up the window of the car and drove it off, dragging PW6 whose hand had been trapped at the said window. At some point PW6 dropped from the car trap but he sustained injuries. He walked back to where PW3 was and he was taken to hospital by his colleague where he got medical services and later, they resumed duty. PW3 said he identified the appellant as one of the four people who had disembarked from the runaway car. PW6 also mentioned the appellant as the person who had asked, 'what was the matter' when he

found him at the car. On the same day in the evening PW5 was on duty at Rungemba police check point. He received information from PW3 about the runaway vehicle from Mafinga. It turned out that the said motor vehicle did in fact appear shortly thereafter and PW5 ordered the driver to stop, but once again he disobeyed. Realizing that he was being confronted by police, the driver turned and headed back to Mafinga where he had been driving from. PW5 informed his colleagues at Mafinga about the direction that the fugitives had taken, and the police from Mafinga decided to drive towards Rungemba too. So, as PW5 was chasing the fugitives from Rungemba, PW3 and PW6 were closing in on them from Mafinga. At some point the Mafinga team blocked the road. This seemed to work because the fugitives abandoned the vehicle and ran off. The police searched into the motor vehicle in the presence of Nicholaus Simon Mwambogoja (PW4), a civilian and independent witness. The search led to the finding of a number of cell phones as follows; 7 Huwawei, 11 Samsung, 2 Microsoft, 4 Nokia and 1 Sony. All these were new. There were also unused phone top up vouchers an iron bar, and an empty wallet. But nobody was arrested at the scene. 5

Meanwhile PC Mohamed (PW9) was working on a case of theft of top- up vouchers and five cell phones allegedly stolen from the shop of one Christian Eleuter Mbala in Iringa town. On 19/5/2016 the OC-CID Iringa informed (PW9) that at Mafinga, an abandoned motor vehicle had been found containing top-up vouchers and cell phones. Suspecting that these items were related to the case that was being investigated by PW9, it was instructed that the items be transferred to Iringa for further investigation in the course of which, Mr. Mbala identified the top- up vouchers and 5 cell phones. Then as a mere fate, on 10/7/2016 a young man known as Kasesa from Dodoma turned up at the central police station Iringa and asked the OC CID Iringa for an audience with PW9. When PW9 met the unknown young man, the latter told him that he had been sent by a person known as John Madata to collect a motor vehicle make Subaru which was lying at that station. That vehicle happened to be registered as T. 217 CYC make, Subaru, the one which was abandoned during the chase between Mafinga and Rungemba. PW9 put Kasesa under restraint. Then he used him as a decoy to lure John Madata into turning himself up to the police by instructing the said young man to tell Madata that he needed to sign some 6

documents in order for the motor vehicle to be released. On 14/7/2016 in the morning when PW9 was with Kasesa, John Madata called the youth unaware of the trap. He told the youth over the phone that he was at a place within Iringa township. The police went with Kasesa to that place and arrested John Madata. We are not told what happened to Kasesa thereafter. Upon his arrest, John Madata allegedly confessed to have committed several offences including the alleged "robbery" from the cell phone shop in Mbeya, belonging to PW8. A parade of identification was prepared and supervised by PW7 during which PW1 identified John Madata as the man she had earlier been referring to as the first bandit. D/C Exaud (PW2) of Mbeya Police recorded John Madata's cautioned statement on 22/7/2016 from around 10:45 a.m. to 11:55 a.m. after he had been transferred from Iringa. John Madata or the first bandit is the appellant. The appellant objected to the admissibility of the cautioned statement on ground of torture and that he did not make any statement, therefore he repudiated it. After an inquiry however, the statement was admitted as Exhibit PI.

In defence the appellant denied the allegations and told a story of how he innocently found himself in the hands of the police as a culprit. According to him the motor vehicle Reg. No. 217 CYC Subaru belongs to him and he had allowed his friend known as Emmanuel Juma or Emma to use it from Mwanza where the appellant and Emma live, to Tunduma to attend funeral of his relative. He stated that one night when Emma was still away with the car, he called the appellant to inform him that he got involved in an accident at Iringa town and was on his way to Iringa Police station. However, when the appellant called Emma two days later, he was not reachable and he never again heard from him. The appellant traveled to Iringa on 13/7/2016 to make a follow up. He denied knowing Kasesa and he said that he personally went to Iringa central police station where he ended up getting arrested instead of being given his motor vehicle. The appellant said he arrived in Mbeya from Iringa on 21/7/2016 at 11:00 a.m. but his statement was recorded on 22/7/2016 at 10:00 a.m., beyond the basic four hours stipulated under the law. Besides, he wondered why he was being charged with armed robbery while the statement he made to the police concerned the offence of breaking and

stealing. He conceded that on 3/8/2016 a parade of identification was conducted after he had been asked and told the police that he was ready for it. He described how he was given the right to choose positions and change clothes. He admitted that the witness, whom he referred to as 'the lady', picked him twice even after changing clothes and positions. He challenged the parade for having participants of different appearances as, for instance, he was the only one who had a scar. The Senior Resident Magistrate with extended jurisdiction dismissed the first appeal. In this second appeal five grounds were initially raised by the appellant who was being represented by Mr. Victor Mkumbe, learned advocate. However, the learned counsel was prompted to withdraw grounds 3 and 4 of appeal after he conceded that they are new. The law is settled that this Court may not entertain grounds of appeal which were not raised or decided upon by the High Court or Resident Magistrate with extended jurisdiction (See Galus Kitaya v. Republic, Criminal Appeal No. 196 of 2015, Hassan Bundala @ Swaga v. Republic, Criminal Appeal No. 386 of 2015 (both unreported) cited in another unreported case of Godfrey Wilson v. Republic, Criminal Appeal No. 168 of 2018). On our closer scrutiny we have come to note that even the question of 9

alibi is a new ground that was not raised during the first appeal, but we shall deal with that issue at an appropriate moment. Mr. Mkumbe prayed to argue this ground as an additional one. Therefore, the remaining grounds of appeal were three, that is the first ground which challenges the evidence of visual identification as having been inadequate, ground two which challenges the cautioned statement which was allegedly recorded outside the time and ground five which challenges the parade of identification. Mr. Mkumbe had also filed written submissions so, likewise, the learned counsel withdrew the parts of the written submissions relevant to grounds 3 and 4. Having done so, Mr. Mkumbe adopted the remaining grounds of appeal and the remaining relevant part of the written submissions, with no more. The respondent Republic was represented by Ms. Lugano Mwakilasa, learned Senior State Attorney, and Mr. Ofmedy Mtenga, learned State Attorney. They were opposed to the appeal, and it was Mr. Mtenga who submitted on their position.

The learned State Attorney addressed the issue of visual identification first and held on to the view that it left no room for mistake. He referred to the testimony of PW1 in which she stated that she had the appellant under observation for more than the initial two minutes during which the appellant was tying the other security guard. He submitted that PW1 concentrated on the appellant alone, and argued that the factors for unmistaken visual identification as set out in various decisions were met. He cited to us the case of Chacha Mwita & 2 Others v. Republic, Criminal Appeal No. 302 of 2013 (unreported). Mr. Mtenga proceeded to submit that there was bright light from electricity power, and maintained that what is referred to in the proceedings as big light means bright light, sufficient for identification. The next point Mr. Mtenga submitted on was the parade of identification which he maintained was flawless. He said it was prepared and supervised by Asst. Inspector Nyenza (PW7) a qualified officer, in the course of which PW1 identified the appellant twice. When his attention was drawn to the contradiction between PW1 and PW7 as to whether the appellant changed positions or clothes, the learned State Attorney submitted that the contradiction was minor. li

Next was the issue of cautioned statement. Mr. Mtenga submitted that it was recorded within the prescribed period of four hours counting from the time the appellant arrived in Mbeya. The learned State Attorney strongly submitted that although the appellant was arrested on 14/7/2016 time could not run from that day because he was being conveyed to Mbeya, where he arrived on 22/7/2016. Lastly the learned State Attorney submitted on the defence of alibi ; and whether the two courts below considered it. He submitted that the defence was discounted because it was raised without notice and it was not supported by any evidence. He maintained that although an accused has no duty to prove his defence of alibi, in some serious cases one is expected to establish the truth of that defence. Rejoining, Mr. Mkumbe submitted that a defence of alibi raised without notice does not become totally worthless, because the Court still has a discretion to address it. He attacked the evidence of visual identification as being unspecific on the number of the electric lights and the distance between the lights and the culprits. Then he submitted that there is no mention of the duration during which PW1 had appellant under observation after the initial two minutes.

As for the parade of identification, Mr. Mkumbe attacked it for not showing on the register whether PW7 asked the appellant and whether the appellant replied that he wished to have a relative or friend around, as per the PGO. On the cautioned statement the learned counsel was of the view that after the arrest of the appellant on 14/7/2016, the police should have recorded his statement within four hours of that arrest, or they should have sought for an order of extension of time from a Magistrate in terms of section 50 (1) (b) of the CPA, because time runs from the time of the arrest. As we are about to start our deliberations, there is one sore point that we need to iron out and which the learned attorneys were called upon to address on. This is that there is nothing in the entire evidence to show that the alleged robbery was facilitated by any armed violence to constitute the offence of Armed Robbery. Mr. Mtenga conceded to the defect and prayed that we be pleased to find the appellant to have committed a lesser offence of robbery with violence. Similarly, Mr. Mkumbe submitted that there was no proof of armed robbery. He invited us to find the appellant guilty of robbery with violence, should we find his 13

appeal against the conviction lacking in merit. If we are to reach that conclusion, Mr. Mkumbe also moved us to consider reducing the sentence bearing in mind that the appellant has been in custody since 4/11/2016. In our case the relevant part of the particulars of the charge alleges that; "... immediately before or after such stealing, he used an iron bar and handcuffed two security guards one AGNES JONATHAN and WEMA MWAMBIPILE in order to threaten them and retain the said properties '' However nowhere has any witness alluded to the fact that the security guards were threatened by the iron bar, rather the security guards were just caught unprepared, ordered to squat and gagged. The question is whether what transpired at PW8's shop amounted to armed robbery in law. The answer is in the decisions of the Court such as; Shaban Said Ally v. Republic, Criminal Appeal No. 270 of 2018 (unreported), where we said, inter alia) "It follows from the above position o f the law that in order to establish an offence o f armed robbery the prosecution must prove the following: - 14

1. There must be proof of theft; see the case of Dickson Luvana v. Republic, Criminal Appeal No. 1 o f2005 (unreported);
2. There must be proof of the use of dangerous or offensive weapon or robbery instrument against at or immediately after the commission of robbery.
3. That use of dangerous or offensive weapon or robbery instrument must be directed against a person. See Kashima Mnadi v. Republic\ Criminal Appeal No. 78 o f 2011 (unreported)" We do not see anywhere in this case where it is suggested that the person who tied the security guards and kept them tamed, used an iron bar to threaten them before or after the alleged stealing. We think there is no dispute that the shop was broken into and theft committed therefrom, but there is nothing establishing that a dangerous or offensive weapon was used against anyone. Consequently, it is our finding that although theft was committed, it does not fall under armed robbery. What we see is mere threat on the security guards which could be robbery with violence, 15

as submitted by both Mr. Mkumbe for the appellant and Mr. Mtenga, learned State Attorney. Let us now turn to the crucial issue, was the appellant the perpetrator of the robbery? The respondent republic says he was, on the ground that he was identified at the scene, and on the ground that he also confessed. The case for the appellant is that he was not at the scene so he could not have been identified, and that the confession was taken outside the prescribed time, it should not be acted upon. We commence with the issue of visual identification, and from the beginning we appreciate that it was by a single witness against a stranger, at night, so obviously the circumstances were unfavourable. That utmost care should be exercised before acting on evidence of visual identification under such circumstances, is beyond debate, and we shall do just that. The way the security guards were unexpectedly rounded up by the robbers and ordered to squat before being tied, leaves only a possibility that PW1 may have had a mere glimpse of the assailant closest to her. In addition, if the prosecution intends the cautioned statement to be acted upon, it suggests that the bandits ordered the security guards to lie down. This is contradictory to PWl's testimony who said they were ordered to 16

squat, and we doubt if she could have identified the appellant while lying down. The prosecution did not produce the sketch map of the scene of crime, and that complicates the situation because we cannot figure out where PW1 was, where were the lights, or where was the shop and the other robbers. We are hesitant to take PWl's word because she only described the assailant's attire on that night with nothing to render assurance for future identification if he changed clothes. More than two months later, PW1 picked the appellant in the parade of identification without making any link between the way she identified him on the night of the robbery and the way she identified him at the parade. The learned advocate for the appellant raised this argument on first appeal, and we think it is a sound one. We think it is unsafe to rely on such evidence, more so when the appellant says he has a scar and he was the only one on that parade with a scar, yet PW1 never mentioned that special mark before picking him. The two courts below concurrently found the evidence of visual identification impeccable. We have no powers to disturb such concurrent findings except for a reason. See Mohamed Juma Mpakama v. Republic, Criminal Case No. 385 of 2017 (unreported) and many other 17

decisions of the Court. We think however, the evidence of PW1 regarding how she identified the appellant cannot stand alone given the fact that the culprit was a stranger whom she had under observation for not more than ten minutes at night. The purported evidence of visual identification by PW3 and PW6 cannot be acted upon because theirs was dock identification. The law requires a person claiming to have identified a stranger to identify such suspect at an identification parade before identifying him in court. About the parade of identification, the complaint that the PGO was not complied with has not been fully surmounted. The learned counsel submitted that the appellant was not informed of his right to have an advocate or friend around. He cited the case of Republic v. XC-7535 PC Venance Mbuta [2002] TLR 48. According to PW7 the appellant was informed about that right and elected to have none of those people around. After dealing with the issue of visual identification in the way we have dealt with, we do not see any rationale in stretching our imaginations this much. We shall leave this point. There is the issue of the cautioned statement. Earlier the appellant's objection was that he was tortured and did not sign it. Then the complaint 18

before the High Court on first appeal was that in making the statement the appellant was responding to the offence of breaking and stealing, with which the warning related, not for the offence of armed robbery with which he had been charged. Yet during his defence and in the course of hearing this appeal, the complaint is that the statement was recorded outside the statutory basic hours. We find this change of goal posts unique. From the foregoing we take it that the appellant made the statement as was rightly concluded by the two courts below, and that he made it voluntarily. The only question for our determination is whether the statement was taken within the time prescribed under the law, and this is actually what Mr. Mkumbe submitted on and argued that it was taken outside the prescribed time. He cited section 50 (1) (a) and (b) of the CPA which provides: - "50 (1) for the purpose of this Act the period available for interviewing a person who is in restraint in respect o f an offence is: - (a) Subject to paragraph (b) the basic period available for interviewing the person that is to say; the period o f four hours commencing at the time when 19

he was taken under restraint in respect of the offence, (b) I f the basic period available for interviewing is extended, the basic period so extended." For the respondent it has been submitted that the time begins to run from the time of the arrest, but the time taken to convey the suspect is excluded. The correct position of the law is that in computing the time, the period spent in conveying the suspect is excluded, which is the essence of section 50 (2) (a) of the CPA which provides; "(2) In calculating a period available for interviewing a person who is under restraint in respect of an offence, there shall not be reckoned as part of that period- (a)while the person is, after being taken under restraint, being conveyed to a police station or other place for any purpose connected with the investigation ." Mr. Mkumbe's argument is that the police should have sought for and obtained an extension of time, anyway. We do not agree that what 20

the learned counsel is suggesting is the correct position of the law because it renders the provision of section 50 (2) (a) of the CPA above quoted, redundant. A similar argument arose in the case of Michael Mgowole and Shadrack Mgowole v. Republic, Criminal Appeal No. 205 of 2017 (unreported), and we said; "The period after the arrests at Madibira and the time they were transported and formally handed over to the police at Mafinga does not count in reckoning the basic period o f four hours. This period is excluded under sections 50 (2) (a) read together with section 51 (1) of the CPA" That however, is not the end. Does the statement amount to a confession? We have no doubt from our reading of the statement that it amounts to a confession. Part of that statement reads; "Majira ya saa 3:00 hrs tuiienda pale na kukuta walinzi wawiii wa kike ambao tuiiwafunga Kamba na kuwalaza chini huku mimi nikibakia kuwalinda DEVI na EMA walivunja makufuli ya duka hilo kwa kutumia nondo kubwa ambayo ni kipande tulichokinga upande. Baada ya kuvunja tulichukua sefu na kutoka 21

na wakati huokulikuwa na m/inzi wa maduka ya nyuma akawa anapiga filimbi..." In the same statement the appellant narrated about the car- chase drama and how he and the others dispersed in the course of escaping and consequently they lost one another. He said he lost contact with his colleagues for some time and came to link up with them again on 14/7/2016 when he decided to travel to Iringa to get his car. In his sworn statement during trial the appellant said he traveled to Iringa on 13/7/2016 in order to get his car, so the fact that he traveled to Iringa to get his car is both in the sworn evidence and in the cautioned statement. In the cautioned statement the appellant stated that his intention was to seek assistance from a police officer he knew before, but when he arrived at the police station in Iringa that officer was not there so he found himself in the wrong hands. We think the appellant's statement and his conduct constitute a confession in terms of section 3 of the Evidence Act [Cap 6 R.E 2002]. The court was faced with an almost similar scenario in the case of Amir Ramadhani v. Republic, Criminal Appeal No. 228 of 2005 (unreported). In that case the appellant was charged with robbery of a motor vehicle and he found himself in a police chase like in this case. When he pleaded 22

that he had been an innocent passerby mistaken for a thief the court relied on his confession both verbal and by conduct to find him guilty. Although in this case the appellant's conduct of turning up at police might suggest that he was innocent, we think he was not, because it is clear from his cautioned statement that what gave him the nerve to go to the police was the expectation that he would get assistance from a police officer he was acquainted to. Not only that, but this whole version of him being an innocent owner of the car came up when the appellant was testifying in defence. This is because the type of questions the appellant's advocate had earlier put to PW2 at page 20 and to PW9 at page 69 suggested that the appellant was denying ownership of the vehicle and was demanding proof from the prosecution witnesses. The line of defence taken by the appellant was new to the extent that the State Attorney cross examined him if the story he was giving in court had been communicated to his advocate earlier, and he answered that question in the negative. Certainly, if the appellant was an innocent owner of the vehicle and was interested in getting it handed to him, he would not have initially intimated that he was not the owner thereof. We take this as being conduct that points to his guilt and supports the confession. 23

Lastly is the complaint that the appellant's defence of alibi was not considered. We are not going to spend time any more than it is necessary on this, because on a closer scrutiny this defence was well considered by the trial court and rejected because of lack of notice and substantiation. This ground was not raised before the High Court, therefore it is a new one although counsel was granted leave to argue it. We are of the settled view that this complaint has no merit because the trial court's conclusion on it was well reasoned and remained unchallenged at the level of the High Court. It is common knowledge that although the accused has no duty to prove his innocence, he is expected to make the theme of his defence known so as to make the trial fair even to the prosecution, and we think this theme may be deduced from the line of cross examinations or notices such as when the said accused intends to raise a defence of alibi. We endorse as correct what the High Court (Lugakingira, J as he then was,) said in Mohamed Katindi v. Republic [1986] TLR 134, holding No. (iii); "it is the obligation o f the defence counsel, both in duty to his client and as officer o f the court, to indicate in cross examination the theme of his client's defence so 24

as to give the prosecution an opportunity to deal with that theme" The same position was taken by the Court in Hatibu Gandhi v. Republic [1996] TLR 12. In that case the appellant's defence that he made his confession under torture was rejected as being an afterthought because he had not raised it at the time of cross examining the magistrate who had recorded it. We are aware that an accused who freely confesses to a crime is the best witness. See the case of Diamon Malekela @ Maunganya v. Republic, Criminal Appeal No. 205 of 2005 (unreported). Therefore, since the appellant confessed both by his written statement and by his conduct, our conclusion is that he is one of the perpetrators of the robbery from the shop of Costa Godwin Mtalazi. Therefore this appeal has no merit. As earlier shown, the offence that was proved against the appellant was that of robbery with violence. We thus substitute the conviction of Armed Robbery with that of robbery with violence under section 285 and 286 of the Penal Code. We vary the sentence of 30 years imprisonment and substitute it with a term of 15 years, to commence from the date the 25

appellant started to serve the previous sentence of 30 years. The appeal is dismissed except for the substituted conviction and variation of sentence. DATED at MBEYA this 1s t day of April, 2020. S. A. LILA JUSTICE OF APPEAL W. B. KOROSSO JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL The Judgment delivered this 2n d day of April, 2020 in the presence of Mr. Victor Mkumbe, counsel for the Appellant and Mr. Ofmedy Mtenga, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. 26