Ruba Rumanyika vs Republic (Criminal Appeal No. 422 of 2021) [2024] TZCA 1221 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA fCORAM: MUGASHA. 3.A.. KHAMIS. J.A. And ISMAIL. J.A.^ CRIMINAL APPEAL NO. 422 OF 2021 RUBA RUMANYIKA ............................................................... APPELLANT VERSUS THE REPUBLIC.................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Bukoba) ( Kilekamaienqa, J.^ dated the 23r d day of July, 2021 in Criminal Appeal No. 81 of 2021 JUDGMENT OF THE COURT 3rd & 10th December, 2024 MUGASHA. J.A.: This is a second appeal against the judgment of the High Court of Tanzania (Hon. N.N. Kilekamajenga) sitting at Bukoba in Criminal Appeal No. 81 of 2021. Originally, the appellant was arraigned before the District Court of Karagwe charged with and convicted of the offence of armed robbery contrary to section 287A of the Penal Code Cap 16 [R.E 2002] now [R.E 2019]. At the trial Court, it was alleged by the prosecution that, the appellant on 19/1/2018 at Kamagambo village, within Karagwe District in

Kagera Region, armed with a machete and a piece of iron bar did steal TZS. 1,800,000/= the property of one Ladislaus s/o Didas. It was also alleged that, immediately before or after such time of stealing, he did use the said weapon to assault the said Ladislaus s/o Didas and Judith w/o Ladislaus to obtain and retain the said sum of money. The appellant pleaded not guilty. The factual account underlying the appeal is briefly as follows; Ladislaus Didas (PW1) and Judith Ladislaus (PW2) were husband and wife, residing at Kamagambo village. On 19/1/2018 at around 08.00 hrs. they were at their residence. While there, Ladislaus was sleeping and his wife was in the sitting room cooking. Suddenly, they heard a bang on the door and subsequently, it was broken. Three persons stormed in the house and found the wife (PW2) in the sitting room and forcefully demanded money from her. When PW2 attempted to shout, the bandits threatened to kill her and was beaten severely until she revealed the husband's whereabouts at the moment. When PW1 who was in the bedroom tried to close the door, the bandits broke it open and stormed therein. He was beaten and pressed to show where he had kept the money. PW1 showed them a total 2

of TZS. 800,000/= which was in his pocket. However, the bandits kept on beating him severely demanding more money which PW1 yielded and gave them additional TZS. 1,000,000/= which was hidden in a shoe under the bed. The bandits also took PWl's two cell phones. According to PW1 he managed to identify the bandits by their faces and names to be Rugarabamu Chamani, Aristide and Aloyce Akili, and Ruba Rumanyika. He added that, Rugarabamu Chamani, Aristide Aloyce Akili were already tried convicted, and sentenced to thirty years imprisonment, but the appellant who managed to escape was arrested later. He also told the trial Court that, at the scene of crime there were electricity lights which aided them to properly identify the bandits. Furthermore, he told the trial court that, he apprehended one of the bandits that is, Rugarabamu Chamani. Then, he raised an alarm which was heeded to by neighbours including PW3 and PW4 who found the bandit at the scene of crime. One bandit namely Aristides was spotted hiding in the banana plant and he was arrested as well. Initially PW1 claimed to have recognized the appellant herein through his voice because he knew him and they used to do the same business. In another instance, she said, the two suspects were interrogated and mentioned the

two other robbers namely Ruba Rumanyika (the appellant herein) and Akili Aloyce. PW1 tendered in Court kikoi, mzula, knife and one stick, alleged to have been found with the appellant which were collectively admitted as Exhibit PI and P2 respectively. He also averred that the suspects were later taken to Kayanga Police station. According to E.8774 D/Cpl Martin who testified as PW5, told the trial Court that, the suspects Rugarabamu Hamani and Aristides Ryamlinda were found arrested at the village chairman's office. He added that, PW1 mentioned the names of all suspects and that he knew them by face and their names. The village chairman led the police to the house of Akili Aloyce and was arrested. Also, PW5 was told that the appellant herein had escaped with the money TZS. 1,800,000/=. During the defence, besides denying the accusations by the prosecution, the appellant confirmed to know PW1 because they were doing business together. However, he alleged that, he had a conflict with PW1 and the case was fabricated against him. He denied escaping from the village and participating in the robbery. As indicated above, the trial court was convinced that the prosecution proved its case against the appellant who was found guilty of the offence

as charged, convicted, and sentenced. After being dissatisfied by the decisions of both the, trial and first appellate courts the appellant preferred this appeal with the following grounds: -

1. That, the High court erred in iaw by relying upon in weak insufficient witness and dismissed the appellant appeal without revisiting PW1, PW2, PW3 and PW4.
2. That, the High court proceeded in this case erred in iaw by relaying upon identification witness by PW1 and PW4 without following the required principles.
3. That, the appellate court below erred in iaw by failure to regard failure o f PW1 and PW4 to state the time taken by the assailants at the scene o f crime.
4. That, the appellate court erred in iaw by failure or omission to disregard weakness o f identifying the accused failure to state distance between appellant and victim to afford identification with doubt.
5. That, appellate court erred in iaw by enter a conviction against appellant by relaying identification witness at the scene o f crime that the assailant was well known victims before the incident without considering PGO 232.
6. That, the appellate court erred in iaw for failure to reason that if appellant was identified by electricity lights while PW1 5

and PW2 fail to state brightness and colour o f light produced and its Intensity. 7. That, the evidence o f identifying o f the assailant (s) well known before the event was met 8. That, the appellate court erred in law by relying upon unprocedural tendered exhibits instead being tendered in the trial court. 9. That, the appellate court convict the appellant without or by ignoring the doctors /medical Report which was totally not tendered before court (s) to support PW1 and PW2, injuries. 10. That, the appellate court failed to reason on why didn't the Republic failed to tender evidence and exhibits stolen in the crime. 11. That, the appellate court for not considering that the respondent failure to tender five exhibits which mentioned in the proceedings. 12. That the High court failed to exercise its powers as per sectionNo.384 o f CPA Cap 20 RE 2019 after proving the weakness contained in the case. 13. That, the appellate court erred in law by accepting demoralizing pack o f lies that the accused had escaped the case. 6

14. That, appellant prays to be set at liberty by CAT, set aside my conviction he is serving in prison. At the hearing of this appeal, the appellant appeared in person unrepresented whereas the respondent Republic had the services of Ms. Immaculate Mapunda and Ms. Wampumbulya Shani, both learned Senior State Attorneys alongside Ms. Evaresta Kimaro and Mr. Enosh Gabriel Kigoryo, both learned State Attorneys. Ms. Shani addressed the Court on this appeal and initially she did not support the appeal. Having gathered that, the robbery incident which is a subject of this appeal was also a subject of trial of Alistides Chrisostom, Rugalabamu Chamani Jamada and Akili Aloyce who upon conviction successfully appealed to the High Court vide Criminal Case No 32 of 2018, we called the record in order to satisfy ourselves if there is any other pending appeal before the Court. However, we gathered that, before the RM with extended Jurisdiction, Alistides Chrisostom, Rugalabamu Chamani Jamada and Akili Aloyce were acquitted after their appeal was allowed. That apart, the exhibits tendered at the trial that is, a stick and a knife, alleged to have been seized from Alistides Chrisostom; and a hat and kikoi seized from Rugalabamu Chamani Jamada were expunged from the record

having failed the test on account of the chain of custody being compromised. Moreover, in the record of the original trial, none of the accused persons mentioned the appellant herein to have been involved in the armed robbery and yet, the complainant who testified as PW1 in that case did not testify to have identified the appellant at the scene of crime. And, instead, PW1 stated that, the cash money was taken by one William; the person armed with the stick and knife was Akili Aloyce and that the hat and kikoi found at the scene of crime belonged to Rugalabamu Chamani Jamada. We took judicial notice of the said proceedings as per the dictates of sections 58 and 59(1) (c) and (d) of the Evidence Act [ Cap 6 R.E 2019]. Having availed the parties the respective proceedings, we invited them to address us on the fate of the present appeal. Upon taking the floor, Ms. Shani conceded that the Republic did not appeal against the decision of the RM with extended Jurisdiction who allowed Criminal Appeal No.49 of 2020. Moreover, in the wake of acquittal of the appellants; the expunging of exhibits and given that, at the respective trial neither PW1 nor the appellants therein did mention the appellant herein, in the present appeal the evidence of PW1 and PW2 on the visual identification of the appellant is highly suspect. She added that, such evidence cannot be relied upon to sustain the conviction of the

appellant herein. On this submission, she urged us to allow the appeal and set the appellant at liberty. The appellant had nothing useful to add apart from urging the Court to allow the appeal and set him at liberty. In this appeal, the major complaint of the appellant is that the charge was not proved beyond reasonable doubt because he was not identified at the scene of crime. Before dwelling on the major complaint of the appellant, we have gathered that, the 5th , 8th , 9th , 10th , 11th , 12th , 13th grounds are new involving factual issues which were not raised and determined in the first appellate court. Since it is settled law that, the Court has no jurisdiction to entertain what was not initially raised in the courts below save on a point of law, we shall not determine the said grounds of appeal. See: GODFREY WILSON VS REPUBLIC, Criminal Appeal No. 168 of 2018 (unreported). In the instant appeal, PW1 and PW2 told the trial court how they identified the bandits at the material time because one, they knew the appellant herein by face as they were doing the same business; two, they identified him by his voice; and three, the appellant was mentioned by other suspects tried in Criminal Case No 32 of 2018. They further stated that in the room there was electricity light and the incident took 9

about 30 minutes. The question to be answered is whether the appellant was positively identified at the scene of crime. In cases, akin to the one at hand, whose determination is essentially dependent on visual identification, it is not enough to merely look at the factors favouring or disfavouring accurate identification. Equally important and decisive is the credibility of the identifying witness. See: the case of RAHIM ISAKA & ANOTHER VS REPUBLIC, Criminal Appeal No. 229 of 2010. Granted that the trial court is best placed and advantaged to determine matters of credibility, in the present situation the learned trial Magistrate and the first appellate court did not consider the credibility of the identifying witnesses that is, PW1 and PW2. These witnesses gave two different versions on the identification of the appellant. Firstly, they alleged to have identified the appellant by face because they knew him. Secondly, the appellant was named by the other suspects who were arrested at the scene of the crime. This account raises more questions than answers. We asked ourselves, if the witnesses knew the appellant there was no need of relying on what was said by other suspects to discern if at all they did identify the appellant. In the premises, the credibility of account of PW1 and PW2 is highly suspect as it is not known exactly how such witnesses identified the 10

appellant at the scene of the crime. Since it is settled law that evidence on visual identification is weak and should not be acted upon unless all possibilities of mistakes are eliminated, it is our considered view that had the two courts below critically subjected the evidence of PW1 and PW2 to a thorough scrutiny, those courts should not have believed and acted on such evidence to convict the appellant. Next is the procedural irregularity surrounding the tendering exhibits (Exhibit PI and P2) during trial. It is on record that, PW1 stated that the appellant was not armed and he did not state if the appellant had exhibit P2. However, he stated that the appellant left "Kikoi and Mzura" at the scene of crime and prayed to tender the same. The appellant had no objection on that, nevertheless, the court admitted the knife as exhibit PI while Kikoi and Mzula were admitted as Exhibit P2. However, PW1 did not state where he obtained the said exhibits or how the said exhibits landed into his hands or if he had knowledge on the said Exhibits. See: REPUBLIC VERSUS CHARLES ABEL GASIRABO @CHARLES GAZIRABO, Criminal Appeal No. 358 of 2019 (Unreported). In the premises the exhibits PI and P2 were wrongly admitted and acted upon and we hereby expunge them from the record. 11

In view of what we have demonstrated above, it is glaring that, the charge of armed robbery was not proved against the appellant at the required standard. Without prejudice to the above verdict, we cannot pen off without commenting on what transpired in the judicial proceedings which we have taken judicial notice of because they have a bearing on the dispensation of criminal justice in our jurisdiction. We have noted that, while DC Criminal Appeal No. 49 of 2020 was dismissed on 7/5/2020 by the RM with Extended Jurisdiction in the presence of the learned State Attorney, almost four months later, the appeal subject to this matter was filed before the High Court on 21/8/2020. In the premises, it was incumbent on the Republic to draw the attention of the High Court on the outcome of the previously dismissed appeal as it had a bearing on the appeal subject to this matter. However, that did not happen until when this appeal was before us. It is understood that criminal justice entails rendering justice to parties. In that regard, it is crucial to the respective stakeholders to have a sense of justice and a spirit of cooperation in order to ensure that justice is availed and served to those entitled and not otherwise. What transpired should not be condoned because it has

adverse effects on the administration of criminal justice in our jurisdiction. We say no more. Ultimately, we allow the appeal and order the immediate release of the appellant from custody unless if held for 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 appeared in person and Mr. Jamal Issa, learned State Attorney for the respondent / Republic, is hereby certified as a true copy of the original. 13