Frank Simbeya & Others vs Republic (Criminal Appeal No. 320 of 2021) [2024] TZCA 1085 (7 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA (CORAM: KEREFU, J.A., KIHWELO, 3.A. And MDEMU. J.A.^ CRIMINAL APPEAL NO. 320 OF 2021 FRANK SIMBEYA ............... . .............................. . ......... . ...... 1 S T APPELLANT JAMES SIMZOSHA ............................. . .......... . ..................... 2 nd APPELLANT ROMWARD KALUMBWE @ SINESHA ............................ . ..... 3 rd APPELLANT SAMWEL KALUMBWE ...... . ...................................................4™ APPELLANT ELIUD GEREMANIKO @ SIMBEYA.........................................5th APPELLANT VERSUS THE REPUBLIC . .................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Sumbawanga) (Ndunguru, 3.) dated the 18t hday of May, 2021 in Criminal Sessions Case No. 59 of 2019 JUDGMENT OF THE COURT 04h & 7th November, 2024 KEREFU. J.A.: The appellants herein, were arraigned before the High Court of Tanzania at Sumbawanga for the offence of murder contrary to section 196 of the Penal Code, Cap. 16 (the Penal Code) in Criminal Sessions Case No. 59 of 2019. The information laid by the prosecution alleged that, on 24th July, 2016 at Kafukoka Village within Kalambo District in Rukwa Region, the appellants murdered one Emanuel Malisawa (the deceased). The appellants pleaded not guilty to the charge. However, after a full trial, they were convicted and each was sentenced to suffer death by hanging.

The brief facts of the case that led to the appellants' arraignment, conviction and sentence as obtained from the record of appeal are not complicated. They go thus: on 23r d July 2016, in the Village of Kafukoka, a pregnant woman, one Eliminata Msokwe @ Mama Dani died. The family members of the said woman were annoyed, as they thought that the death of their loved one was caused by witchcraft and the main suspect was the deceased. It was the testimony of Dafrosa Maiko (PW4), the wife of the deceased that, in the morning of 24th July, 2016, while at home with her husband and her daughter one Zawadi Ndaipi (PW3) and before the body of the pregnant woman was laid to rest, a group of people came to their house and started accusing her husband to have bewitched the pregnant woman and that, he was responsible for her death. It was the testimony of PW4 that, the said people took the deceased to the house of Mama Dani, locked him inside the house and assaulted him till he died. Thereafter; they took his dead body outside and burned it. PW4 went on to state that, the people who came to pick her husband were five and she managed to identify them except one, who was young. PW4 went ahead to mentioned the said people as, BABA NESHA, NAMCHULE, TAAKOLA and ELIUD. That, the said people were familiar to her because they are all residents in the same village. She added that,

together with her daughter (PW3), they witnessed the incident from fat through the angle of their house as they were terrified. That, they followed the culprits from behind to see what was going to happen to the deceased, Thereafter, they reported the matter to the Village Chairperson who relayed the same to the Police Station. In her testimony, PW3 supported the narration by PW4 and added that, the people who invaded their house and took the deceased were armed with panga, axe and clubs. That, her father was killed by residents who were angry and she could not identify all of them. No. F. 9968 D/C Obet (PW1) testified that he was involved in the investigation of the incident. That, on 24th July, 2016 around 02:00 hours, in a company of other police officers and Dr. Arcado Erick Mwamba (PW2), they visited the scene of crime where they found the body of the deceased outside the house burning. PW1 prepared a sketch map of the scene of crime which was admitted in evidence as exhibit PI. PW1 stated further that, he interrogated PW4, who named the first and second appellants to be responsible with the death of the deceased. That, having arrested the first and second appellants on 31s t July, 2016, they mentioned the otner appellants, hence all of them were arrested on 27th December, 2016 at Ilambila Village.

An autopsy on the deceased's body was conducted by PW2, who concluded that the cause of death was due to neurogenic hypovolaemic shock, severe burn wounds and skull fracture. A postmortem report to that effect was admitted in evidence as exhibit P2. In their respective defence, the appellants denied any involvement in the alleged offence by disputing each and every detail of the prosecution accusations. Specifically, the first and second appellants who testified as DW1 and DW2 respectively stated that, they were arrested by the police officers on 30th July, 2016 at Matai playing ground, where they went to watch football. That, they were not told the reason of their arrest. DW1 and DW2, stated further that, at the police custody they were severely tortured to confess to have committed the offence and they were forced to sign some documents, which they did not sign. In their testimonies, the third, fourth and fifth appellants, who testified as DW3, DW4 and DW5 testified that, they were arrested by the police officers on 27th December, 2016 at Ilambila Village at night hours when they were sleeping at their respective homes and taken to the Police Station without being told the reason of their arrest. DW3 added that, he did not know the first and second appellants prior to the incident. DW2, DW3 and DW5 also stated that, they did not know PW3 and PW4 prior to

the incident. DW4 also complained of being tortured by the ponce for him to confess to have committed the offence, which he did not commit. At the end of the trial, the learned trial Judge was convinced that the case against the appellant was proved to the required standard through the testimonies of PW2 and PW3, the prosecution eye witnesses, who t properly identified the appellants at the scene of crime. The learned trial Judge also relied on the principle of the last person to be seen with the deceased. Thus, the appellants were found guilty, convicted and sentenced as indicated above. ' t Aggrieved, the appellants are now before us challenging the High i Court's decision. We shall not recite all grounds of appeal filed by the ‘j appellants for a reason to be detailed at a later stage of this judgment. Suffice to say that, initially, the appellants lodged a substantive memorandum of appeal on 15th July, 2021 comprised of five grounds and then, on 30th August, 2022, they lodged a supplementary memorandum of i appeal with six grounds. However later, when Mr. Deogratius Phailod Sanga, learned counsel was assigned by the Court the dock brief to represent the appellants, he lodged a supplementary memorandum of appeal on 23r d October, 2024 with the following two grounds: i t

1. That, the prosecution failed to prove their case beyond j reasonable doubt as required by the law; and *

2. That, the trial court erroneously convicted the appellants basing on the evidence which are contradictory and at variance with the charge sheet When the appeal was placed before us for hearing, the appellants were represented by Mr. Deogratius Phailod Sanga, learned counsel whereas the respondent, Republic was represented by Mr. John Mwesiga Kabengula, learned Senior State Attorney. Upon taking the floor and before advancing his arguments in support of the appeal, Mr. Sanga prayed to abandon the two memoranda of appeal

filed by the appellants on 15th July, 2021 and 30th August, 2022 respectively. He then, intimated that he would only argue the two grounds of appeal indicated in the supplementary memorandum of appeal lodged on 23r d October, 2024. Starting with the first ground, Mr. Sanga contended that, the visual identification of the appellants by PW3 and PW4, which was relied upon by the trial court to convict the appellants, was not watertight. He argued that despite the fact that the incident happened during the day, the appellants were not properly identified by PW3 and PW4 to avoid any mistaken identity. To clarify on this point, the learned counsel referred us to pages 85 to 91 of the record of appeal, where the said witnesses categorically testified that on the fateful date at the scene of crime, they identified five

people by the names of BABA NESHA, NAMCHULE, TAAKOLA and ELIUD together with the other one whom they did not know his name, but they said he was young. It was the strong argument by Mr. Sanga that, all the four names mentioned by PW3 and PW4 are different from the names of the appellants indicated in the charge. Mr. Sanga argued further that, much as PW3 and PW4, seemed to suggest that they were able to identify the appellants, they failed to describe them, such as, their attire, physique and any special marks or symbols which enabled them to identify the appellants. He added that, the said witnesses did not even state the distance at which they observed the incident. Thus, Mr. Sanga also faulted the learned triai Judge to rely on the evidence of PW3 and PW4 which was unreliable for being tainted with material contradictions and inconsistencies on how they identified the appellants at the scene of crime. That, while at page 85 of the record of appeal, PW3 stated that, the people who entered their house and took the deceased were five in number, at page 86 of the same record, she testified that, the deceased was kilted by the residents who were angry and she couid not know all of them. He also referred us to page 92 of the same record, where PW4 stated that, her husband was taken by a group of people who came to their house and some of them were not found.

Mr. Sanga referred us, yet to another contradiction between the evidence of PW1, the arresting police officer and PW4. That, in his testimony found at page 75 of the record of appeal, PW1 testified that, PW4 was the one who told him that, the first and second appellants were among the persons who killed her husband. However, PW4 in her testimony, never mentioned the names of the first and second appellants to be among the five people who entered into to their house on the fateful date. It was the further argument of Mr. Sanga that, since there was no identification parade conducted to corroborate the evidence of PW3 and PW4, their claim relegating their identification to a mere dock identification. He thus emphasized that, the evidence of visual identification by PW3 and PW4 cannot be said to be absolutely watertight. As such, the learned counsel insisted that, since the visual identification evidence by PW3 and PW4 was not watertight, the same could not have been relied upon by the trial court to ground the appellants' conviction. To bolster his proposition, he cited the cases of Daniel Amos Mziho v. The Director of Public Prosecutions, Criminal Appeal No. 221 of 2020 [2023] TZCA 17973 and Ibrahim Eston v. Republic, Criminal Appeal No. 75 of 2021 [2024] TZCA 516. He then concluded that, since the testimonies of PW3 and PW4, the only prosecution eye witnesses at the 8

scene of crime, was weak on the visual identification of the appellants, the i remaining evidence on record could not have any weight to corroborate it. Based on his submission, the learned counsel urged us to allow the appeal, quash the conviction and set aside the sentence imposed on the appellants and set them free. In response, Mr. Kabengula, at the outset, expressed the stance of the respondent Republic of supporting the appeal. The learned Senior State Attorney was in agreement with what was submitted by his learned friend in all fours. He insisted that, the evidence of PW3 and PW4, who were the only prosecution's eye witnesses at the scene of crime did not meet the conditions on visual identification stipulated in the cases of Waziri Amani v. Republic [1980] TLR 250, Daniel Amos Mziho (supra) and Jacob Mayani @ Boyi v. Republic, Criminal Appeal No. 56(j of 2016 [2020] TZCA 1768. He then insisted that, since the appellants were not properly identified at the scene of crime and the identification parade was not conducted, it was improper for the learned trial Judge to conclude that the case against them was proved to the hilt. As such, h i also urged us to allow the appeal, quash the conviction and set aside the i sentence imposed against the appellants and release them from the prison.

In his brief rejoinder, Mr. Sanga did not have much to say other than welcoming the concession by his learned friend. We have considered the submissions made by the learned counsel for the parties in the light of the record of appeal before us and the appellant's grounds of complaints. The main issue for our determination is i the sufficiency or otherwise of the evidence of visual identification acted upon by the trial court to convict the appellants. Before doing so, we wish to restate the salutary principles of law that, one, a first appeal is in the form of a re-hearing and as such, this being the first appellate court, it is duty bound to re-evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and if warranted arrive at its own conclusions of fact. Two, the credibility of a witness is the monopoly of the trial court, but only in so faf as the demeanour is concerned. On the part of the first appellate court, the credibility of a witness can be determined in two other ways namely; when assessing the coherence of the testimony of that witness and when the testimony is considered in relation to the evidence of other witnesses; including that of the accused person (see - D.R. Pandya v. Republic (1957) EA 336. Starting with the first ground on visual identification, we wish to point out at the outset that, we agree with both learned counsel for the 10

parties that, it is trite law that for evidence of visual identification to be acted upon by the court to ground a conviction, the same must be watertight to eliminate all possibilities of mistaken identity. In the case of Waziri Amani (supra), the Court gave the word of caution at pages 251 — 252, that: "...evidence o f visual identification , as Courts in East Africa and England have warned in a number o f cases, is o f the weakest kind and most unreliable. It follows therefore, that no court should act on evidence o f 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 added], In addition, in the case of Taiko Lengei v Republic, Criminal Appeal No. 131 of 2014 [2015] TZCA 288, the Court, while citing the erstwhile East African Court of Appeal in Mohamed Alhui v. Rex (1942) 9 E.A.C.A 72, emphasized that: "In every case in which there is a question as to the identity o f the accused\ the fact o f there having been a description given and the terms o f that description given are matters o f the highest importance o f which evidence ought always to be given: first o f all, o f course, by the persons who i i

gave the description and purport to identify the accused, and then by the person or persons to whom the description was given." Now, in the case at hand, it is on record, and as correctly argued by both learned counsel for the parties that, in convicting the appellants, the trial court relied mostly on the visual identification evidence by PW3 and PW4, the only prosecution eye witnesses at the scene of crime. This can be evidenced at page 148 of the record of appeal, where the learned trial Judge concluded that: "...It is my finding that the evidence on identification do meet the test set in Waziri Amani's case to warrant conviction. The detailed explanation by prosecution witnesses PW3 and PW4 and the favourable circumstances surrounding the killing o f the deceased one can say had eliminated all possibilities o f mistaken identity. In that regard, I have no doubt whatsoever the accused persons were properly identified at the scene o f crime." In their submissions before us, both learned counsel for the parties,' faulted the trial Judge for grounding conviction of the appellants on the evidence of PW3 and PW4, as they both argued that, the evidence of the said witnesses was tainted with material contradictions on how they 12

identified the appellants, thus, unreliable. To verify this point, we have revisited the evidence of the said witnesses. PW3 at pages 85 of the record of appeal, is recorded to have testified that: "On 24.07.20161 with my mother and father were at home. At about 10:00 am while we were at home there came young men five in number, they took my father to the home o f the mother who died. When asked them why taking my father, they said he is the one bewitched the dead pregnant woman...I know the people who came to take my father at home. One is called BABA NESHA, MCHULE, ELIUD, TAAKOLA, the other one was young I did not know his name." Again, at page 86 of the same record, PW3 testified that: "The people who Invaded their house and took the deceased were armed with panga, axe and dubs, I did not witness when my father was killed. My father was killed by residents who were angry (with anger). I could not know all the people." Then, PW4, at page 89 of the same record of appeal, testified that: "The young men who came to collect my husband were five. I identified them. I know their names except one who by then was young. One was BABA NESHA, NAMCHULE, TAAKOLA, ELIUD and the young one whom I did not know his name." 13

Then at page 90 of the same record, PW4 testified that: "It was a group o f people who came to take my husband, others are not found. I identified the accused on dock." In addition, in his evidence, found at page 75 of the record of appeal, PW1, the arresting officer, testified that: "In the course o f investigation, when I interrogated the wife o f the deceased (PW4), she named the persons involved in the killing. She named FRANK SIMBEYA and JAMES SIMZOSHA. Having arrested the two, in the course o f interrogation, the two named the rest o f the accused to have been involved." From the above excerpts, it is clear to us that, PW3 and PW4 were incredible and unreliable witnesses as their evidence is tainted with material contradictions. That, in their testimonies, PW3 and PW4 gave different versions regarding the number of people who came to their house and take the deceased. It is even not clear as to whether, there were only the alleged five people who entered the deceased's house or it was a group of people who were furious and armed. Furthermore, and a ^ correctly submitted by Mr. Sanga, the incident happened during the day but, PW3 and PW4 who claimed to be at the scene and identified the 14

appellants, they completely failed to describe their attire, physique and any special marks or symbols to rule out the possibility of mistaken identity. It is also on record that, all the four names mentioned by PW3 and PW4 to be the people who killed the deceased are not the names of the appellants before us. Furthermore, in his testimony, although, PW1 claimed that the names of the first and second appellants were mentioned to him by PW4, in her testimony, PW4 is silent on that aspect. In Mohamed Said Matula v. Republic [1995] TLR 3 it was held that: "Where the testimonies by witnesses contain inconsistencies and contradictions the court has a duty to address the inconsistences and try to resolve them where possible or eise the court has to decide whether the inconsistences and contradictions are oniy minor, or whether they go to the root o f the matter." Unfortunately, in the case at hand, the learned trial Judge did not discharge the duty to address such contradictions and inconsistencies. Having examined and considered the said contradictions and inconsistencies, we are of the settled view that they are fundamental, as they raise doubts to the extent that we are unable to eliminate the possibilities of mistaken identity. Therefore, and since the said

contradictions go to the root of the prosecution's case, we resolve them in favour of the appellants. The prosecution case is further weakened by the absence of identification parade. It is our considered view that, had the identification parade been conducted, it would have served as corroboration of PW3 and PW4 dock identification of the appellants. In the circumstances, the PW3 and PW4's dock identification of the appellants without any corroboration by identification parade evidence was worthless - See cases of Muss^ Elias 8 t 3 Others v. Republic, Criminal Appeal No. 172 of 1993; Thaday Rajabu @ Kokomiti v. Republic, Criminal Appeal No. 58 of 2013 (botH unreported). On the basis of the reasons stated above, we are of the settled view that had the learned trial Judge properly scrutinized the evidence of PW3 and PW4, the only prosecution evidence of visual identification of the appellants, would have found that, such evidence was not watertight. In the circumstances, we agree with both learned counsel for the parties that, it was improper for the learned trial Judge to ground conviction of the appellants on the visual identification evidence adduced by PW3 and PW4. It was equally improper for the learned trial Judge to conclude that the case against the appellants was proved beyond reasonable doubts. As such, we find merit in the first ground of appeal. 16

Since our finding on this ground suffice to dispose of the appeal, the need for considering the other remaining ground of appeal does not arise. In the event, we allow the appeal. The conviction of the appellants is hereby quashed and the sentence imposed on them is hereby set aside. Consequently, we order for immediate release of the appellants from prison unless they are being held for some other lawful causes. DATED at SUMBAWANGA this 6th day of November, 2024. R. J. KEREFU JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 7th day of November, 2024 in the presence of Mr. Deogratius Phailod Sanga, learned counsel for the appellants, who are also present in persons, and Mr. John Mwesiga Kabengula, learned Senior State Attorney for the Republic/respondent; is hereby certified as a true copy of the originaf.