Yohana Kulwa @ Mwigulu and Others vs Republic (Consolidated Criminal Appeals Nos. 192 of 2015; Consolidated Criminal Appeals Nos. 397 of 2016) [2018] TZCA 786 (17 September 2018)

· IN·THE COURT OF APPEAL OF TANZANIA • AT TABORA '' (CdRAM·: ''MlJSA, J.A., LILA, J.A., AND MWAMBEGELE:·iA) . CONSOLIDATED C.RIMINAL APPEALS NO. 192 OF 2015 & 397 .OF.2016

1. YOHANA KULWA@ MWIGULU7 i
2. NG'WANA SELELI@ MASELE
3. NGASA JOHN
4. MASHAKA JACKSON r .. , .. ....................... : ............... APPELLANTS VERSUS THE REPUBLIC ...................... a ................... 11 .................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Tabora) (Kaduri, J.) Dated the 17 th day of February, 2011 in Criminal Appeals No. 125, 179, 180 and 181 of 2007 JUDGMENT OF THE COURT 4 th September, & 19 th November, 2018 MWAMBEGELE, J.A.: Before the District Court of Shinyanga sitting at Shinyanga, the four appellants - Yohana Kulwa @ Mwigulu,. Ng'wana Seleli ·@ Masele, Ng~a ,,, .,-,John and Mashaka Jackson - were arraigned for armed robbery. After a fully-fledged trial, they were found guilty as charged and each of them was awarded the mandatory minimum sentence of thirty years in prison. There 1 •·

, .. ~as another person going by the name of Mulyambelele Masanja who was· the fifth accused person charged on the second count for receiving ·stolen property and convicted as well and sentenced to two years in ja.il. He did not appeal. The appellants' first appeal to the High Court proved futile hence this second appeal. They have raised a total of twenty-nine grounds of complaint which have the same substance and can be condensed in the following four grounds:

1. The 1 st appellate court wrongly upheld the conviction by the trial court relying on the evidence of visual identification of PW1 and PW2 wh1ch was not watertight;

2. The 1 st appellate court wrongly upheld the conviction by the trial court relying on the cautioned and extra-judicial statements whose voluntariness was challenged; , · · ~~:··-c,·-::··"''"3:·The, 1 st appellate <:ourt wrorigly"Ti'pfteld"the conviction by the , trial court relying on the evidence of the -doctrine of r,ecent possession which was not treated according to law. 2 ---· -.:'":-:· ,,.;,.',

3. The 1 st appellate court wrongly relied on the evidence of. PF3 ·. which was admitted in evidence without compliance with the law. At the hearing of the appeal before us on 04.09.2018, the four appellants appeared in person, unrepresented. The respondent Republic appeared through Mr. Iddi Mgeni, learned State Attorney. Before delving into the determination of the appeal, we find it pertinent to narrate, albeit briefly, its factual background. It goes thus: Yasin Shem (PW3); an Indian National, was, at the material time, a resident of Balewa Street in Shinyanga Region. He traded in gemstones. He used to buy.gemstones from small holders at his office which ostensibly is within his residence. On 30.10.,2007 at about 11:00 hours, he was visited by four people who masqueraded as persons seeking to sell gemstones. That scenario was quite common to him, for, he used to receive at his ,office sellers of gemstones in groups. Before the unexpected visitors produced the ,,gemstones they pretended to have, one ~f them raised a panga ready to hack him. No sooner had one of them raised a panga, than another one held tight his neck, fell him down and the rest 3

descended on him demanding money in the •process. · He was• hacked on . his right arm._ and sustained wounds on both palms:' tie had no money to give them. He-was raising an alarm in the process of attack. At the end of ~- - ... the day, the robbers made away with two cell phones make Nokia, a wrist watch and a diamond weighing scale. They left behind PW3 tied to a chair with a rope. Passers-by and neighbours responded to PW3's distress call. Among them were Kulwa Charles @ Bala (PW1) and Oscar Charles (PW2) who worked in the same street. While on their way to the locus in quo, PW1 and PW2, allegedly, saw the appellants running away from there. They allegedly identified them because they used to work together. at Balewa Street ·loading and unloading shipment on and off big trucks. They went to the scene of crime and found PW3 in blood. Upon their information to the police, the first appellant was arrested two hours after the robbery. The rest of the appellants wer.e··arr:ested on the following day. All the appellants pleaded-the defence of alibi. 4

". I • At the hearing · of the appeal, all the appellants .. adopted .their respective grounds· of ppeal. Having so done, they aH deferred _;.their elaboration to a later stage after they heard the response of the respondent Republic, if need would arise. Responding, Mr. Mgeni supported all the·grounds of appeal save for one on identification. On the grounds that the learned counsel supported, respecting reception of the PF3 in evidence, the learned state attorney stated that it1 was put in evidence contrary to the provisions of section 240 (3) of the Criminal Procedure Act, Cap. 20 of the Revised Edition, 2002 {hereinafter referred to as the CPA). It was his view that the .PF3 must be expunged from the record. Regarding the ground respecting admission in evidence the cautioned and extrajudicial statements, the learned State Attorney -conceded that they were wrongly· received in evidence given that the appellants 't --....J ""·•·•·· ( .. J , ••• ,., •• ;- ,.:...,,,., ~ '' .. ·• ~ -• • ,n,..'>·••:.-,,\ ... .;"--·..::,_,.., ~ ,~- .. . -· -- .... .,,. complained that the same were involuntarily made. In the circumstances, . . he .,submitted, the trial .court ought to -,have- ,conducted an inquiry to ·. · '" investigate if they were voluntarily made and therefore their admissibility in 5

.~ evidence. He was also of the-view that the statements must be expunged from the record. On the doctrine of recent .possession, the learned State Attorney was . of the view that it was wrongly applied. He argued that the victim (PW3) tendered the exhibits without stating how .they came into his possession. He submitted that the chain of custody was at stake. Regarding the evidence of visual identification, the learned State Attorney was of the view that the same was sufficient to prove the' case against the appellants beyond reasonable doubt. He argued that PWl and PW2 knew the appellants before the incident as they worked together at Balewa Street. He added that the incidentoccurred in broad daylight and that they were not far from the scene of crime. He added that the appellants never cross-examined PWl and PW2 regarding identification. The tearned State Attorney referred us to the cases of Waziri Amani v. Republic [1980] TLR 250 and Hassan Juma,. Kanenyera v. Republic [1992] TLR .;LQQ.to,,_belster his argument to the effect U1atthe identification of the appellants was absolutely watertight. ·5

· -for their part, the appellants dissociated themselves with the charges levell~d against them claiming that they did not .knoyv PWl and PW2. They claimed that the circumstances obtaining at the· locus in quo were not such ~· -·· .......... ·-·· .... ·-- .. ~-- . ._ . ... . --thafany assailant could easily be identified. They claimed that PWl and PW2 were arrested first i,n connection with the offence before being turned into prosecution witnesses. They thus prayed that the Court analyses their grounds of appeal and set them free. We have considered the arguments by the learned State Attorney on the grounds he conceded. We agree with him on his concession. We shall herein bellow state briefly on why we think the learned State Attorney is justified to support those grounds of grievance. Regarding the admission of PF3 into evidence, we simply wish to state that it is now settled law that noncompliance of the provisions of section 240 (3) of the CPA is fatal and makes a PF3 admitted in blatant disregard of the section liable to be expunged - see: Alfeoe,Valentirio v. Republic, Criminal Appeal,,, NG .. ,-92 of 2006, Mwita Matiku @ ,.,Mabee.,- ·· Wilson & anor v. Republic, Criminal Appeal No. 235 of 2013, Arabi Abdu Hassan v. Republic, Criminal Appeal No 187 of 2005, Ahmad 7

Mangwalanya v.: Republic, Criminal Appeal No. 105 of 2010, Prosper Mnjoera Kisa- v., Re,public, Criminal Appeal No 73 of'200} apd Meston Mtulinga v. Republic, Criminal Appeal No 426 of 2006 (all unreported), ~ . ~ . ,.. .. -· ..... . . · .... ·· .. . . ,,. ..... . ... -~ .. .. .. . .. to mention but a few. In· all these cases, the Court uninterruptedly held that a trial court must advise an accused person of his right to call the doctor and his answer must be on record. This was not done in the instant case. It signifies that the PF3, which was admitted in evidence as Exh. Pl, was wron9ly admitted in evidence. As rightly submitted by the 1earned State Attorney, it ought to have been expunged by the first appellate court. As that was not done by the first appellate court, we expunge it now. Next for consideration is the reception in evidence of the cautioned and extra-judicial statements. It is in evidence that the first appellant's cautioned and extra-judicial statements were admitted in evidence as Exh . . P4 and Exh. Pl0, respectively. The record of appeal also bears it true that the first appellant objectd.-t9 .. bqth.,,cautioned and extra-judicial. statempt~. •M•~•,.•·· , ... , w ~ being tendered and admitted in evidence on the ground that he was · · tortured before making them. The same is the case with the other appellants who also challenged the voluntariness of their, a.utioned statements. In ss,h an eventuality, the trial court ?Yght to have 8

conducted an inquiry to investigate their admissibility in evidence. ,That this is the law founded-''Uppn prudence we held in a number,-- of o,ur,', decisions - see: Robinson- Mwanjisi and three others v. Republic· ,'< ,. ,, • ., .... ,. ,. .,,.. ' •. , -- ·-- - ·•,.--., [2003] TLR 218 and Twaha Ali & 5 Others v. Republic, Criminal Appeal No. 78 of 2004 and Juma Bushiri v. Republic, Criminal Appeal No. 485 of 2007 (both unreported). In all the cases we held that it is improper to admit a disputed confession in evidence without first conducting an inquiry or a trial within trial to verify its voluntariness. In Twaha Ali & 5 Others v. Republic, Criminal Appeal No. 78 of 2004 (unreported), for instance, we categorically held: " if the objection [to tendering a cautioned statement] is made after the trial court has informed the accused of his right to say something in connection with the alleged confession, the trial court must stop everything and proceed to conduct an ,,-"" ••;,,,·:i-·,l-,,,,,-,-, .... l<'••-•· ,,...,. ,- .,,., .,.._,..,,·l),Jol, .. c,;,-. 1<,j,.,>•-.•o. -•-,A• • inquiry ... into the voluntariness or not of the alleged confession. Such an inquiry ·, · should be conducted before the confession is admittedin evidence ... , ✓ [Emphasis added]. 9

.- In the case at hand, the -appellants :having objected to the tendering - . __ 6f.:the cautioned and·extra-judicial statement?, the trial court ought to have stopped everything and proceeded to conduct an inquiry. For the . . " . .. . ,. avoidance of doubt, whether to conduct an inquiry or a trial within trial is a matter of nomenclature; it refers to one and the same thing but in different courts. It is an inquiry in the courts subordinate to the High Court (except for the primary court) and a trial within trial in the High Court. Regarding the evidence on visual identification which the learned State Attorney was of the strong view that it was sufficient to mount a conviction against the appellants, we find it appropriate to first revisit the law on it. The oft-cited case of Waziri Amani; the case referred to by the learned State Attorney, is a landmark case in our jurisdiction on visual identification. The case set out guidelines on visual identification which the courts in - this jurisdiction have uninterruptedly followed. Regarding this kind of evidence,,"the Court ·gave the word of caution at pp .. 251 -:-:-,252: •:.evidence: of visual identification, as Courts in East Africa and England have warned in a number .... \· . ~· ... ,. 'f 10

. of case~ -is of the weakest kind a{Jd most unreliable. It follows therefore/ .th?Jt no court . . .. . · ... :, .. ,should act on evidence of visual identification unless all possibilities of mistaken identity .. •. . .... • are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight." [Emphasis supplied]. Then, the Court went on at p. 252: ''Although no hard and fast rules can be laid down as to the manner a trial Judge should determine questions of disputed identi[½ it seems clear to us that he could not be said to have properly resolved the issue unless there is shown on the record a careful and considered analysis of all the surrounding circumstances of the crime being tried. We would, for example, expect to find on record questions as the following posed and resolved by him: ~he ime he witness·· ····•had•.,. · the accused -under .. , .. ,,._.,., .. q ... ., •• observation; the distance at which he ·· observed him;"theconditions in which such . observation occurred, for instance, whether .c,/ was day or nighttif1!e, whether..«there was good or poor lighting at the scene; and + 11

further· whether the witness knew or had seen the accused before or not. These .. ~ ' .. . . , . matters are. hut a few of the matters to which. the· ._ ... _, · tria/Judge should direct his mind before coming to. any :,,de/iRite conclusion on the issue of identity. " [Emphasis supplied]. The above excerpts from Waziri Amani lay down the principles in respect of visual identification during the night, in broad daylight and visual identification by rec.ognition. In the instant case, the offence was committed in broad daylight and the visual identifiers knew the appellants before. The issue of identification of the appellants has taxed our minds greatly in this appeal. Much as we are aware that the evidence of visual identification in the present case is one of recognition and that this kind of evidence, as we held in Samwel Dickson & Another v. Republic, Criminal Appeal No. 322 of 2oi4 (unreported)i citing with approval the. •.!• i, <f!l.\4." ,,. -.~ •....,.';:·1,·., .. • , . .,,. > ·• •J< -•"'-' - -C •!"I~ .. ,", ;l-1'u. , ~ ,.,,,.,.-1.•, ,, • ... ~ " • .Co• ___ .,.. ., ~ ' ,t;,•, .• ....•,-., '!"',:'$" •~ ~~••n••K-!.!,.,.. ,s. . . . ., .... ~ ·-· decision of the Court of Appeal of Kenya ofAnjonane v. Republic (1998] , .. ·"· Kr.R.Go; · is more reliable than identification 6La··sfranger, we have failed to see it as proving the guilt of the appellants without reasonable doubt. ... _ . .,(:·)'.,a•!' --- ,.,, .. ,,.., ,;-,- ,."fl°"'i-:.-i·,.~• f:,'1;.., .• Having closely revisited the law and juxtaposed it with the facts of the 12

• --- present case, we have -found it difficult to go along with .,the learned State • Attorney. The testimony of the identifiers was such that it leaves soiri'e ;. ,f ._ ,..: •• - .. ~ ·. _ _.,,· . .1 . doubts as to whether the· appeUants were identified with certainty. We say
• so because PWl and PW3 were -not descriptive on the circumtances obtaining at the locus in quo and its precincts which facilitated their identification by recognition. PWl, for instance, is recorded as saying: ' .. approaching there I saw two men running away from that house of the mhindi. At first ran the two and were later followed by the other two. I managed to identify them all {ie. four of them). It was Yohana, Ngassa, Mashaka .and Ng'wana. I know them by their first names. The four I have named are here in court that is the first to fourth accused {Pointed in court). I managed to identify them easily as I used to work with them for a long time. " .. ikewise, on the relevant part, P'fj'J. i? ~~<;:gf'Q.~~L 9 ,.?aying: ..,, ,,.., ,,::, 'l•F•/ ·., f :_.i·.(;.'• '""'•• ' , '~ .. w~ heard a cry for help and on the alert we/[ ,--~ , .. , i.- • ·, .• ,. <•. ,J!, ,. -- - .
• saw· people running from that house. They were about four {4) people: .. ,., [IJese were Yohanq, ... ,. " ,:' •, . -~ - Ngasa, Ngwana & Mashaka. After we made the 13

I ., ,. • ··· follow ups in that house where the cry for help . was;. we found the mhind( wounded and was _ bleeding. These (4) people .ran in different directions. Yohana ran towards ·to the. old primary court and the rest to the market place ... " The foregoing excerpts are the relevant parts of the testimonies of the identifiers. We have found three shortcomings in them. First, the identifiers did not state the distance between them and the persons being identified. Second, they did not even describe the attire of the appellants at the moment they were being identified. Third, time spent to identify them was not described and fourth, as they testified that there were other people going towards the scene of crime, they did not testify how they could identify the appellants in that state of affairs. These are very relevant ingredients to satisfy watertight visual identification as appearing in the two excerpts above. We·· find -:these-shortcomings marring the ··proseEutiGn•,,case· with doubts that must be resOlved in favour of the appellants as our criminal law practice dictates. For - the· avoidance of doubt, we will not make any .. determination on the doctrine. of recent possession !as . it was in respect. of . ': -- the fifth accused person at th~.,,trial who did not ,appeal. In sum, w~/ind 14 :)

the evid,ence of visual identification by recognition falls short of the .. ... threshold set out in Waziri Amani (supra). In the uphot we find that the case against the appellants was not proved to the hilt. The consolidated appeal is meritorious and we allow it. We consequently order that the appellants - Yohana Kulwa @ Mwigulu, Ng'wana Seleli @ Masele, Ngasa John and Mashaka Jackson - be released from prison custody unless otherwise held for some other lawful cause. Order accordingly. DATED at DAR ES SALAAM this lih day of September, 2018. K. M. MUSSA JUSTICE OF APPEAL S. A. LILA JUSTICE OF APPEAL J. C. M. MWAMBEGELE •• • "'''< ;, ·,,-,,.-!• ,.._,·•r!•,.·'lI.._ •·t;v;>• JUSTICE OF APPEAL I certify that this is a true copy' p_f the_.original. ~ H.S. MUSHI DEPUTY REGISTRAR COURT OF APPEAL 15 .J