Elias Binige vs Republic (Criminal Appeal No 288 of 2016) [2018] TZCA 431 (18 September 2018)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: MUSSA. J.A.. LILA. J.A. And MWAMBEGELE. J.A.^ CRIMINAL APPEAL NO. 288 OF 2016 ELIAS BINIGE ................................................................ APPELLANT VERSUS THE REPUBLIC............................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (Makani, J.) dated 6th day of May, 2001 in DC. Criminal Appeal No. 32 of 2015 JUDGMENT OF THE COURT 29th August & 5th September, 2018 LILA, J.A. The appellant, Elias Binige, was charged with the offence of armed robbery contrary to section 287A of the Penal Code Cap. 16 R. E. 2002. It was alleged by the Republic that on the 28th day of July, 2014 at about 20:00hrs at Mwamva area within the District of Kahama in Shinyanga Region did steal a motor cycle make Sanlag Reg. No. T.706 CWT valued at Tshs. 1,400,000/= the property of one Gumba s/o Rashid and immediately before the time of such stealing did cut one Juma s/o Weja on his different parts of the body by using a panga in order to obtain and retain the said properties. i Upon his arraignment, the appellant denied the charge. To prove its case, the prosecution summoned four witnesses. The appellant did not call any witness, instead, he defended himself. The trial ended with the appellant being found guilty of the offence. He was convicted and sentenced to serve 30 years in jail. Dissatisfied with both the conviction and sentence of the trial court, he appealed to the High Court (Makani, J.). His appeal was dismissed in its entirety. Still convinced of his innocence, he has attempted this second appeal faulting the decision of the High Court. A brief background of the case as gathered from the record is this. Juma Weja (PW1), a motorcyclist doing a transportation business in what is now famous as "bodaboda" was, on 27/7/2014 at 19:30, at Kahama along Tabora road at Royal Supermarket. He was stopped by a person he did not know before who wanted to be taken to Mwamva area behind Chinese Company camp. They negotiated for a fare for about five (5) minutes and reached an agreed fare of 2,000/=. The journey to Mwamva started and after a short while, was stopped by that person who held him by the neck tightly. During the squabble, two other persons armed with pangas appeared in aid of that person. PW1 was hacked with the panga consequent upon which he fell unconscious only 2 to recover at 05:00 hours. Then he found the motorcycle make Sanlg Registration No. T. 706 CWT red in colour (exhibit PI) and Tshs. 40,000/= he had, missing. He reported the matter to his boss one Rashid Bamba, the owner of the motorcycle, and later reported to Kahama Police Station. He then went to hospital for treatment after being issued with a PF3. Later, on 3/8/2014, he was called to identify the motorcycle at Kahama police station. Thereat he found two persons who were handcuffed and amongst them he identified the appellant as being the one who hired him and later robbed him the motorcycle on the basis of the clothes he had worn on the incident date which were a blue jacket and a red trouser. On being cross-examined by the appellant, he insisted that he was robbed on 27/7/2014 at 19.30hrs not 28/7/2014 and that he was called at the police station to identify the motorcycle whereat he found the appellant and another person handcuffed. PW2 one F. 6932 DC George, an investigation police officer at Kahama, had it that on 3/8/2014 the appellant and the motorcycle were taken to the police station and he filled a certificate of seizure dated 3/8/2018 (exhibit P2). That later he contacted PW1 to go thereat for the purpose of identifying the motorcycle but on his arrival PW1 also identified the appellant as being the one who robbed him even before being asked. He also recorded the appellant's cautioned statement on 4/8/2014 in which he admitted robbing PW1 the motorcycle assisted by his colleagues and took the motorcycled to Runzewe. In the course of being cross-examined by the appellant, he said the appellant was arrested on 1/8/2014 at Ushirombo not on 15/9/2014. He said the appellant was locked in but at night he broke the cell and escaped and was re-arrested on 16/9/2014 at Runzewe area. F. 1568 DCPL Erick (PW3), a policeman working at Runzewe police station, informed the trial court that he arrested the appellant having nothing after being tipped by a certain informer. That then the appellant was later taken to Kahama. E. 5784 CPL Lazaro (PW4), said that he arrested the appellant at Runzewe on 1/8/2014 having nothing. In his sworn defence, the appellant disassociated himself with the commission of crime. He insisted that he was arrested by PW3 at Runzewe on 16/9/2014 on accusation of committing a traffic offence and was charged at Bukombe District Court and on the next day was taken to Kahama by PW3. That on 18/9/2014, he was given by PW2 some papers to sign. He attacked PWl's evidence on identification on the ground that no identification parade was conducted. Regarding the seizure certificate, he said he was arrested at Runzewe but the certificate shows that it was filled at Kahama. Regarding the cautioned statement, he said it indicates that it was written in August while he was arrested in September, 2014. He said he was, in August, serving a sentence in respect of a traffic offence and he tendered a warrant of Commitment dated 20/8/2013 (exhibit Dl). At the end of the trial, the trial court was satisfied that the prosecution had proved the charge against the appellant and it proceeded to convict and sentenced him to serve thirty (30) years imprisonment. For convenience purposes, we are compelled to show the basis of the appellant's conviction by the trial court and the High Court dismissing the appeal. The judgment of the trial court clearly indicates that the presiding magistrate hinged his conviction on his findings that the appellant was sufficiently identified by PW1 at the Supermarket by means of the electricity light and at Kahama police station, he was arrested with the motorcycle the subject of the robbery incidence immediately after the offence was committed which evidence was corroborated by the certificate of seizure and lastly the cautioned statement. He was, on the defence side, not convinced that at the time 5 of his arrest the appellant was serving a sentence in respect of a traffic offence he had earlier on committed, that there existed variance between the charge sheet and evidence on the date of the robbery incidence and failure by the police to conduct an identification parade to have weakened the prosecution case warranting his acquittal. In dismissing the appeal, the high Court (Makani, J.), agreed with the finding of the trial court that the appellant was properly identified by PW1 at the Supermarket by means of the electricity light which she presumed to give a powerful light and the ample time they had in negotiating the hire fare. With respect to the admissibility of the cautioned statement, she said the appellant was arrested on 1/8/2014 and taken to Kahama on 3/8/2014 where his statement was recorded on 4/8/2014. She discounted the appellant's contention that he was arrested on 15/9/2014 and as there was no allegation of threat or force during the recording then the same was properly admitted. Also relying on the cautioned statement and the evidence by PW1 the judge was satisfied that PW1 was injured by a panga although no PF3 was tendered to prove so. In her final analysis she upheld the trial court's findings and dismissed the appeal in its entirety. As alluded to above, the appellant filed the present appeal seeking to fault the concurrent findings of guilt by the two courts below. He has raised seven grounds of complaint which are substantially the same as those he raised at the first appellate court except for the issue of cautioned statement which he presently attacks it on the basis of trial court's failure to conduct a trial within trial to establish whether it was voluntarily taken. Before us, the appellant appeared in person with no legal representation. Mr. Solomon Lwenge, learned Senior State Attorney, represented the respondent Republic and was assisted by Mr. Shaban Juma Massanja, learned State Attorney. After having adopted his Memorandum of Appeal, the appellant chose to rejoin after the learned Senior State Attorney had argued the appeal. In order to appreciate the arguments by Mr. Lwenge, we find it apposite to state, albeit in a summary form, the appellant's complaints in this appeal. He complains about the variance between the charge sheet and evidence on the date when the offence was committed, the two courts below wrongly predicated his conviction on the cautioned statement which was not voluntarily taken, there was no medical proof that PW1 was injured in the course of robbery incidence, the evidence by PW1 and PW2 who are policemen was not corroborated by independent witnesses, no description of the suspects were given to the police prior to his arrest and no identification parade was conducted. The cumulative effects of all the above, he concluded, was that the charge was not proved against him. Mr. Lwenge, argued the appeal generally and he first addressed himself on the issue of identification. He was emphatic that the appellant was properly identified by PW1 who was found to be a credible witness by both courts below. He said PW1 had enough time to see the appellant at the supermarket when they were negotiation the fare where they took about five minutes and there was electricity light and later at Kahama police station where he identified the appellant by the clothes he had worn on the incident date. He, however, conceded that no identification parade was conducted but was of the view that it was unnecessary because PW1 identified the appellant at the police station where he had gone to identify the motorcycle which was recovered. He also conceded that it is not clear how the motorcycle reached at the police station and that the appellant was not arrested at Runzewe having the motorcycle, subject of the robbery incidence. In respect of the certificate of seizure, the learned Senior State Attorney said the same should be disregarded because while the appellant was arrested on 1/8/2014 not having the motorcycle but the certificate was filled on 3/8/2014. He said there was not only no connection between the appellant's arrest and the motorcycle but also there is a broken chain of custody as it is not clear how the motorcycle reached the police station. He said there is a missing link between the appellant's arrest and the recovery of the motorcycle. Mr. Lwenge also argued on the issue of the cautioned statement (exhibit P3). He conceded that it was recorded belatedly because the appellant was arrested on 1/8/2014 and was taken to Kahama police station on 3/8/2014 but his statement was taken a day after (on 4/8/2014). He urged the court to expunge it. On the issue of variance of the date when the offence was committed between the charge sheet which indicated 28/8/2014 and the evidence by PW1 who insisted to have been on 27/8/2014, the Learned Senior State Attorney said the offence was committed on 27/8/2014 at 19:30 hrs and PW1 who fell unconscious recovered at ll.OOhrs. He said the difference is not only minor but also immaterial and the anomaly is 9 curable under section 234(3) of the Criminal Procedure Act, Cap.20 R. E. 2002 (The CPA). Regarding other grounds of appeal, Mr. Lwenge said there was no need for corroboration of the evidence by witnesses who are policemen. He also said there is ample evidence by PW1 that he was injured with a panga through he did not tender a PF3 as exhibit. On the issue of informer not testifying in court, he said he was not disclosed and really did not give evidence in court but that did not affect negatively the prosecution case. Concluding, the learned Senior State Attorney said apart from the expunge of the appellant's cautioned statement, there being no evidence of the appellant being found in possession of the motorcycle at the time of his arrest and the certificate of seizure being disregarded, there still remain the word of mouth of PW1 on identification of the appellant as being his assailment who the Court should believe, as the two courts below did, which sufficiently established the offence the appellant was charged with. He urged the Court to dismiss the appeal. He availed us with the Court's decision in Benson Kibaso Nyankonda @ Olembe Patroba Apiyo Vs. Republic [1998] TLR. 40 to cement his assertions. 10 In rejoinder, the appellant had nothing to say other than urging the Court to determine the appeal based on the grounds of appeal he For convenience purposes, we propose not to determine the appeal according to the sequence followed by Mr. Lwenge in arguing the appeal. For that reason, we will consider other grounds first and reserve the issue of identification to a later stage of the judgment. We begin with the certificate of seizure. Like Mr. Lwenge, we too are of the view that the same should be disregarded on the basis that the motorcycle was not seized at the time the appellant was arrested and the filling was done some days later after the appellant was arrested. It is undisputed that the appellant was arrested on 1/8/2014 at Runzewe area but the motorcycle was at Kahama police station and the certificate was filled on 3/8/2014 indicating that the house/room searched was of the appellant. There is no evidence that the appellant's house or room was ever searched. Further, there is no explanation as to where the motorcycle was recovered and how it found itself at Kahama police station. There is, as rightly argued by Mr. Lwenge, no connection between the appellant's arrest and recovery of the motorcycle. As there is no evidence establishing that the appellant was arrested while in possession of the motorcycle, it goes without saying that the doctrine of 11 recent possession was wrongly invoked by the trial magistrate and consequently wrongly found the appellant guilty. For the certificate to have evidential value, in terms of section 41 of the CPA, it must be filled immediately after the search and recovery of the property subject of the case. For this reason, both courts below ought to have disregarded the certificate of seizure. In respect of the cautioned statement, we also agree with the learned Senior State Attorney that the same was recorded belatedly. The evidence by PW2 and PW3 clearly shows that the appellant was arrested on 1/8/2014 at Runzewe and on 3/8/2014 taken to Kahama where his statement was taken on 4/8/2014. Both courts below approached it in the context of how it was taken and whether the same was voluntarily taken and overlooked to consider whether it was taken within the prescribed time of four hours from the time of arrest. After excluding the time spent from the appellant's arrest at Runzewe and his being taken to Kahama, it is apparent that the cautioned statement was recorded a day after which is well beyond the basic period of four hours mandatorily provided under sections 50 and 51 of the Criminal procedure Act, cap. 20 R.E. 2002 (the CPA). This was sufficient to expunge it but we have also noted that after it was admitted as exhibit it was not read out to the appellant. The remedy is to expunge it, as we hereby do - see Roland Thomas @ Malagamba Vs. Republic, Criminal Appeal No. 308 of 2007 and Petro Teophan Vs. Republic, Criminal appeal No. 58 of 2012 (both unreported). In all, the cautioned statement was not evidence worth being acted upon and the first appellate judge was enjoined by law to discount it. We, again, agree with the Learned Senior State Attorney that there is no law compelling the evidence by policemen to be corroborated and also compelling the informer to be a witness in a criminal trial. We now revert to the issue of identification. After we have expunged the cautioned statement and disregarded the certificate of seizure, we are of the considered opinion that this appeal stands or falls on the basis of the purported visual identification evidence by PW1. In the circumstances, we find it crucial that we first set out the detailed exposition of the law obtaining on visual identification. The law on visual identification is now settled that it is of the weakest kind unless the conditions are favourable for a proper and unmistaken identification. Courts have been warned not to convict on such evidence unless the evidence is watertight and all possibilities of mistaken identity are eliminated. Admittedly, as to what constitutes favourable conditions depends on the circumstances of each case. However, matters such as whether it was day time or at night, the type and intensity of light, the closeness of the assailant and the identifier, the time taken in the encounter and whether the person identifying knew the suspect prior to the incidence have been set out as the requisite tests in considering whether there was proper identification - see Waziri Amani Vs. Republic [1980] TLR 250 and Raymond Francis Vs. Republic [1994] TLR 100. The court in yet another decision of Jaribu Abdallah Vs. Republic, Criminal Appeal No. 220 of 1994 (unreported) developed another factor to be considered apart from the above ones. That is in respect of credibility of the identifying witness in that a witness is expected to give a description of the suspect in relation to things like physique and attire and if he knows him, to name him at the earliest opportunity [see Mohamed Allui Vs. Republic (1942) EACA 72 and Marwa Wangiti Mwita and Another Vs. Republic, Criminal Appeal No. 6 of 1985 (unreported) cited in the case of Mussa Hassan Barie and Another Vs. The Republic, Criminal appeal No.292 of 2011 (unreported)]. In addition to the foregoing, in incidences where the identifying witness is not familiar to the suspect, the need for conducting an identification parade has been insisted so as to corroborate the dock identification of an accused person by a witness of identification (See Moses Deo Vs. Republic [1987] TLR 134). In the present case, the only witness of identification is PW1. He was positive that he duly identified the appellant with the aid of electricity light at the Supermarket where they negotiated for the hire fare for about five minutes. He also said he later on identified the appellant to be his assailant at Kahama Police station because of the attire he had worn - blue jacket and a red trouser which he wore in the incident night. With respect to the learned Senior State Attorney, even assuming that the intensity of electricity light at the supermarket was strong enough to enable PW1 identify properly, which we are however not told, this is far from proving that the problem of identification was not at issue. It is evident that PW1 and the suspect were strangers to each other. His evidence of identification was not therefore recognition evidence. There was need, therefore, to approach the evidence of PW1 with the greatest circumspection. In doing so, we will therefore revert to 15 his evidence on record and examine it objectively in the light of the afore stated legal position obtaining on the issue of visual identification. During his testimony, PW1 said after he regained consciousness, he reported the robbery incidence to the owner of the motorcycle he referred to as his boss one Rashidi Bamba and later reported to the Kahama Police station. The record speaks out loudly that PW1 did not give the descriptions of the person who robbed him including the attire to his boss, the first person he met. Neither did he, according to evidence, give any descriptions of the suspects to the policemen at Kahama Police station. Worse still, PW2, who was assigned the case file to investigate following PWl's complaint did not tell the trial court that the description of the culprits were given, either. That aside, PW3 and PW4 who arrested the appellant told the trial court that they arrested the appellant simply on information relayed to them by undisclosed informers that the appellant was being accused of stealing a motorcycle and had escaped from police lockup. Actually, the two witnesses were recounting what they had allegedly been told by their respective informers. The appellant's arrest was, therefore, not based on any description given by PW1 at Kahama Police station. More so, PW1 was summoned at Kahama police station to only identify the motorcycle not the appellant. That is why even the Police at Kahama did not see need to hide the appellant when PW1 was called at the police station. Had they been given the description of the suspects by PW1 they would have definitely hidden the appellant and thereby conduct an identification parade. It is apparent that they were not minded to hold an identification parade. We are, given the above shortfalls, inclined to find that the appellant's identification by PW1 at the police station was based on simply the colour of the clothes he had worn. In the absence of stating peculiar marks, we find that such identification was wanting for anybody could, by coincidence, happen to wear a blue jacket and a red trouser. Otherwise, we are satisfied that the identification of the appellant was doubtful and, if anything, it was mere dock identification. All said, we are increasingly of the view that holding of identification parade was necessary in the circumstances of the case so as to ascertain whether really PW1 could positively single out the appellant as his assailant hence corroborate his evidence on identification - see Mussa Hassan Barie and Another Vs. The Republic, Criminal Appeal No. 292 of 2011 and Said Lubinza and Four Others Vs. The Republic, Criminal Appeals Nos. 24, 25, 26, 27 17 and 28 of 2012 (both unreported). Failure to conduct an identification parade, as the learned Senior State Attorney conceded, weakened the prosecution case. There was, therefore, no other evidence to corroborate the dock identification purportedly done by PW1. For the aforementioned reasons, we are satisfied that the evidence of visual identification by PW1 was doubtful for failure to meet the requisite tests to justify the conviction. We accordingly allow the appeal, quash the conviction and set aside the sentence. We order the release of the appellant from prison forthwith unless held therein for any other lawful cause. DATED at TABORA this 4th day of September, 2018. K. M. Mussa JUSTICE OF APPEAL S. A. Lila JUSTICE OF APPEAL J. C. M. Mwambegele JUSTICE OF APPEAL I certify that this is a tru riginal. A. H. I^sumi DEPUTY REGISTRAR COURT OF APPEAL m 18