Erick Mathias vs Republic (Criminal Appeal No. 595 of 2022) [2024] TZCA 1222 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MUGASHA. J.A.. KHAMIS, 3.A. And ISMAIL, J.A.l CRIMINAL APPEAL NO. 595 OF 2022 ERICK MATHIAS ......................................................................... APPELLANT VERSUS THE REPUBLIC....................................................... ................ RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Bukoba) fMwenda, J) dated the 9th day of August, 2021 in Criminal Appeal No. 11 of 2021 JUDGMENT OF THE COURT 3rd & 10th December, 2024 ISMAIL. 3.A.: Erick Mathias, the appellant, and two other persons who have since been acquitted, were jointly charged with armed robbery, contrary to the provisions of section 287A of the Penal Code, Cap. 16 R.E. 2019 (then R.E. 2002). The incident occurred in the evening of 30th August, 2016 at Ihungo area within the Municipality of Bukoba. The Resident Magistrate's Court of Bukoba at Bukoba (trial court) found the 3r d accused person not guilty and acquitted him. As it did that, it

found the appellant and the 1s t accused guilty and convicted them of armed robbery and sentenced them to imprisonment for 30 years. On appeal, the High Court upheld the appellant's conviction and sentence as the 1s t accused was a let off the hook. Rattled by the outcome on appeal, the appellant is before this Court, seeking to demonstrate his innocence. The record informs that about 19:45 hours on 30th August, 2016, Ashiru John, PW3, a cyclist of a motor cycle registered as MC 570 AXT was hired by the appellant who was bound for Ihungo area. The initial fare of TZS. 3,000/= was whittled down to TZS. 2,500/= after negotiations. At Ihungo, the appellant allegedly ordered PW3 to stop beside the Halotel tower where they spent a few minutes as the appellant left and came back with his colleague who was described as tall. As PW3 was turning his motor cycle towards the direction that they came from, the tall man who was identified later as the 1s t accused, stabbed him on the neck with a machete. As PW3 fell down, the appellant wrested control of the motorcycle after which he and his co-assailant sped off. Before they left, the 1s t accused inflicted two more cuts on the neck and right hand. Shortly thereafter, PW3 raised an alarm which was responded to by a few people including PW6, whose house was close to the scene of crime. It was

alleged that the scene of crime was sufficiently luminant to enable PW3 identify his assailants if he met them, the contention which was supported by PW6. The victim was rushed to police where a PF3 (exhibit P3) was issued to refer PW3 to a health facility. The suspected assailants included the 3r d accused from whom the motor cycle was recovered. An identification parade, supervised by PW7, led to the identification of the appellant. The suspects were arraigned in court facing the charge of armed robbery the involvement of which they denied. Six witnesses testified for the prosecution while defence testimony was composed of three witnesses all of whom were the accused persons themselves. The trial court convicted the 1s t and 2n d accused while the 3r d accused was acquitted. Bemused by the conviction and sentence, the convicted duo preferred an appeal to the High Court. As earlier stated, the appeal proceedings gave a let off to the 1s t accused but not the appellant. This is what triggered the instant appeal. Three grounds of appeal were raised. Given what will unfold shortly, we find no reason to reproduce the grounds of appeal. At the hearing, the appellant fended for himself, unrepresented, while Mses. Wampumbulya Shani and Immaculate Mapunda, both learned

Senior State Attorneys, along with M r. Enosh Gabriel Kigoryo and Ms. Evaresta Kimaro, both learned State Attorneys, appeared for the respondent Republic. When he rose to address us, M r. Kigoryo stated that the respondent was in support of the appeal. He submitted that, in their view, the charges against the appellant were not proved to the hilt. He submitted that the trial court's finding of guilty was mainly predicated on the evidence of identification. The learned State Attorney argued that, whereas the charge involved three accused persons two of whom were acquitted at different stages of the trial and first appeal proceedings, there is evidence that supports the contention that the appellant was not known to the victim. This, in his contention, necessitated the constitution of an identification parade that culminated into his identification. Turning his attention to the parade, Mr. Kigoryo took a swipe at it, alleging that it was discrepant because: One, that there is uncertainty on the number of parades conducted, given the variance between PW3 who said there were two parades and PW7 who said there was only one. This being the reason that led to acquittal of the 1s t accused in the High Court,

doubts exist as to whether such parade was truly conducted. He argued that, if two parades existed, then the number of participants would be 20 and not 10 as testified by PW7, a fact that heightens the fear that the prosecution account was not credible. Two, that exhibit P4, the extract of parade register, was tendered but not read out to the appellant, thereby flouting the imperative requirement of having exhibits read out on admission as evidence. M r, Kigoryo argued that, noting that the chalking off of exhibit P4 will weaken the testimony of identification in a profound way, whatever remains of the prosecution case is too weak to sustain a conviction against the appellant. Finally on the contradictions, M r. Kigoryo's contention was that, the same were material, fundamental and cannot be wished away as they weaken the prosecution case. The appellant did not have anything useful to submit. He only implored the Court to allow the appeal, quash the conviction and set aside the sentence. As correctly alluded to by Mr. Kigoryo, the High Court's confirmation of guilt of the appellant was predicated on the contention that he was identified at the scene of crime, and then at the identification parade that

was overseen by PW7. This is found at page 176 of the record of appeal at which the learned 1s t appellate Judge reasoned as follows: "From the foregoing, since the 1st appellant was identified at the scene of crime by the victim (PW3) and iater came to be identified at the ID parade, this court is satisfied that the evidence against the first appellant one ERICK MATHIAS is watertight and the trial court wasjustified to convict him. His appeal therefore lacks m erit" From the foregoing, the broad and singular issue for our determination is whether the case against the appellant was proved at the required standard. We wish to preface our analysis by stating that the settled law is that, in criminal proceedings, a conviction must be founded on the evidence that is credible, coherent and sufficient - see: Mohamed Said v. Republic, Criminal Appeal No. 145 of 2017 [2019] TZCA 252 (23 August 2019, TANZLII). From this, what we ask ourselves is, was the testimony that supported the conviction credible, coherent and sufficient? To answer this question, we need to lay emphasis on how credibility of a witness in a case is established. We do so by extracting an excerpt from

our decision in Shabani Daudi v. Republic, Criminal Appeal No. 28 of 2001 (unreported). We reasoned in that decision, as follows: "Credibility o f a witness is the monopoly o f the trial court but only in so far as demeanor is concerned. The credibility o f the witness can also be determined in two other ways. One, when assessing the coherence o f the testimony o f that witness and two, when the testimony o f that witness is considered in relation to the evidence o f the other witnesses including that o f the accused person. In those two occasions, the credibility o f a witness can be determined even by a second appellate court examining the findings o f the 1st appellate court." In our analysis, the prosecution case was, by and large, founded on the testimony of identification adduced by PW3 and PW7 and exhibits PI, motorcycle registration card, P2, motorcycle with registration No. MC 570 AXT, P4, identification register forms (PF 186), P5, extra-judicial statement of the 1s t accused, and P6, sketch map of the scene of crime. With respect to the documentary exhibits, the record indicates, and Mr. Kigoryo has confirmed that, after admission, these exhibits were not read out to the

accused persons. Undoubtedly, this was a fatal omission that renders them liable to being expunged, thereby leaving the prosecution's case weakened. The decision to discard the exhibits is consistent a well- established principle that generally once a document is admitted in evidence after clearance by the person against whom it is tendered, it must be read over to that person. That has been the position of this Court in many cases including Mwinyi Jamal Kitalamba @ Igonzi and Four Others v. R, [2020] T.L.R. 508 and Huang Qin and Xu Fujie v. R, Criminal Appeal No. 173 of 2018 (unreported)/' See also: Robinson Mwanjisi & 3 Others v. Republic [2003] T.L.R. 218; and Ntobangi Kelya & Another v. Republic, Criminal Appeal No. 256 of 2017 (unreported). As held in the cited decisions and a host of others, such omission is prejudicial to the party against whom such testimony is admitted in court. So fatal is the irregularity that it cannot be cured under section 388 of the CPA. It follows that, save for the sketch map which we remain seized with on account of what is to unfold in due course, the resultant consequence is to have them chalked off, and we have no hesitation to follow this path

against the discrepant exhibits tendered in this matter. Having done so, the question that came to mind is, what then is left of the prosecution case? Could it be said that the case for the prosecution was proved to the hilt? M r. Kigoryo is of the view that the residue of what constituted the prosecution's testimony is too measle to hold the appellant to book, and we agree with him and here is the reason. In the instant matter, what is available is the testimony of identification which was adduced by PW3 who narrated his encounter with the appellant and the 1s t accused and how he identified him after spending time together before the robbery incident occurred. He also stated how the environment was luminant, courtesy of the Halotel tower which was sufficiently lit. What connects us to the scene of crime is the sketch map (p. 79 of the record of appeal). A closer look of it shows the point at which the victim was allegedly robbed (marked A) while the Halotel tower was across the road (marked F). While distance from A to other points is indicated, there is none between A and F, yet that distances looks to be the longest. It begs the question as to whether such distance was sufficiently lit as to allow an unmistaken identity. In our considered view, it is also unsafe to rely on the testimony of PW6 whose home is

marked B, the nearest point from the tower but 75 steps away from where PW3 was allegedly robbed. What we discern here is that, given the lack of clarity on the distance from where the lights were, it could not be ascertained clearly if the intensity of the lights extended to the scene of crime and allow positive identification. We take the view, therefore, that the discrepant oral account on visual identification could not be supplemented by the irregular identification parade which, besides being chalked off, it had various ailments. In the premises, there is no watertight evidence to prove beyond doubt that the appellant was positively identified. But even if we were to assume, for the sake of argument, that the oral account was worth of reliance, we gather that such testimony contradicts exhibit P6, the sketch map of the scene of the crime in a profound way. These contradictions are fundamental and they touch on the credibility of the entire testimony that the prosecution relied upon. Given their gravity, these contradictions cannot be ignored. We are, in that respect, constrained to follow the path that the Court charted in Sahoba

Benjuda v. Republic, Criminal Appeal No 96 1989 (unreported) in which it was held: " Contradictions in the evidence of a witness affect the credibility o f the witness and, unless the contradictions can be ignored as being oniy minor and immaterial the court will normally not act on the evidence o f such witness touching on the particular point unless it is supported by some other evidence. "[Emphasis is supplied]. We are in agreement, yet again, with Mr. Kigoryo who took an exception to the lower courts' analysis of evidence. We hold that, after disregarding the documentary evidence and casting away the testimony of PW3 and PW7 for being contradictory, there was nothing left of the prosecution case to justify a finding of guilt against the appellant. It cannot be said that the case met the threshold of proof of cases that we set in Magendo Paul & Another v. Republic [1993] T.L.R. 219. In that case, we held as follows: "For a case to be taken to have been proved beyond reasonable doubt, its evidence must be strong against the accused person as to leave a

remote possibility in his favour which can easily be dismissed," In fine, we allow the appeal, quash the conviction and set aside the sentence. We also order that the appellant be immediately set free unless held for some other lawful cause. DATED at BUKOBA this 9th day of December, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 10th day of December, 2024 in the presence of the appellant in person unrepresented and M r. Jamal Issa, learned State Attorney for the Respondent/Republic, is hereby certified as a 0. H. KINGWELEf^^ DEPUTY REGISTRAR COURT OF APPEAL