Anasi Omary vs The Republic (Criminal Appeal No. 05 of 2022) [2024] TZCA 924 (23 September 2024)

IN THE COURT OF APPEAL OF TANZANIA ATTABORA C CQRAM: LILA. J. A.. FIKIRINI. J.A And KENTE. J.A.' CRIMINAL APPEAL NO. 05 OF 2022 ANASI OM ARY ..................... . .................................. . ............................. APPELLANT VERSUS THE REPUBLIC ............... . ................... . ............................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Tabora) (Khamis, J.) dated the 5th day of November, 2021 in Criminal Appeal No. 27 of 2020 JUDGMENT OF THE COURT 20th August, & 23rd September, 2024 KENTE. J.A.: This appeal is against the decision of the High Court of Tanzania sitting at Tabora, in the exercise of its appellate jurisdiction in Criminal Appeal No. 27 of 2020. Originally, the appellant together with one Joseph Lazaro (who was acquitted and therefore not a party to this appeal), appeared before the District Court of Nzega (the trial court) where the appellant was tried, convicted and sentenced to thirty years' imprisonment for each of the two counts of armed robbery contrary to sections 285 and 287 A of the Penal Code, Chapter 16 of the Revised Laws. In the alternative, the appellant was charged alone with, but acquitted of the offence of being in possession of goods suspected to have

been stolen or unlawfully acquired contrary to section 312 (1) (b) of the Penal Code. The particulars in support of the first count alleged that, on 5thJuly, 2019, during the night time, the appellant together with his co-accused, stole TZS 1.125.000.00 in cash, two cell phones TECNO CXL make valued at TZS 350.000.00 and another cell phone TECNO 401 make valued at TZS 40,000.00 the properties of one Konya Maduka. Moreover, it was particularised that, immediately before and after stealing the said items, the duo fired a gun in the air and stabbed the said Konya Maduka on different parts of his body in order to obtain and retain the stolen properties. The particulars of the second count were essentially that, almost at the same time and place, the appellant and his co-accused stole cash TZS 120.000.00 in cash, one cell phone of Itel make valued at TZS 60,000.00, Tigo, Halotel and Vodacom Airtime vouchers valued at TZS 100,000.00 and twelve pieces of vitenge valued at TZS 200,000.00 the properties of Ha mis Said Ramadhani. Likewise, it was further alleged in support of this count that, immediately before and after stealing the said items, the appellant and his fellow accused fired a gun in the air in order to threaten their victim with the ultimate aim of obtaining the stolen properties. The particulars of offence in the alternative count alleged that, on 6th July, 2019 at Nkinga Malucha Village within the District of Nzega in Tabora 2

Region, the appellant was found in possession of twelve pieces of vitenge valued at TZS 120,000.00, two pairs of rubber boots and one pair of sandals the properties which were suspected to have been stolen or unlawfully acquired. The appellant and his fellow suspect denied the charges levelled against them whereupon the matter proceeded to trial. However, at the end of the trial in which eight witnesses testified for the prosecution and the appellant and his fellow suspect made sworn and affirmed testimonies respectively without calling witnesses, whereas the appellant was found guilty and convicted presumably of the first and second counts and acquitted of the alternative count, his co-accused was found not guilty and accordingly acquitted of the first two counts with which he stood charged. Dissatisfied with the decision of the trial court, the appellant appealed to the High Court against both the conviction and sentence. After hearing the appeal which was basically challenging the decision of the trial court on the ground that it was based on weak and unreliable evidence, the High Court upheld the conviction and sentence. Essentially, the decision of the first appellate court was premised on two findings of fact that, one, the appellant was seen and identified at the crime scene by one Tungu Masanja (PW3) who was at the time, drinking local brew at the nearby pombe shop and had allegedly seen the appellant and his companions on the evening preceding the 3

robbery incident and two, that on the following day, the appellant was found in possession of twelve pieces of vitenge that belonged to Hamis Said Ramadhani (PW2) and which were stolen during the robbery incident as particularised in the second count. The appellant was dissatisfied with the decision of the first appellate court confirming his conviction and sentence by the trial court. His grievances in the present appeal are in respect of the following evidential aspects. One, the evidence on his alleged identification by PW3; two, a search and seizure certificate (Exhibit PI) which was not read out after it was admitted in evidence and three, the doctrine of recent possession which, in the opinion of the appellant, was wrongly invoked by the High Court Judge. We propose to deal first with the appellant's complaint with regard to the certificate of seizure. The record shows that, after being admitted in evidence as exhibit PI, the said certificate was not read out and this omission led Mr. Kilingo Hassan learned advocate who appeared before us to represent the appellant, to argue, quite rightly in our view that, in view of the current position of the law, the omission was a serious procedural error which occasioned injustice to the appellant who, as the matters stand, did not know the contents of the said document. As luck would have it, the same sentiments were shared by Mr. Merito Ukongoji learned State Attorney who was assisted by Ms. Anet Makunja, his 4

fellow State Attorney representing the respondent, the Republic. Moreover, Mr. Ukongoji conceded that indeed, the omission to read out the contents of the search and seizure certificate as required by law, had the effect of denying the appellant the opportunity to know its contents and prepare himself for a meaningful and focussed defence. The learned counsel were unanimous in praying that, upon the above procedural infraction, the seizure certificate should be expunged from the record or otherwise it should be discarded. They relied on our decision in the unreported case of Joshua Kwolesya @ Adamu v. Republic, Criminal Appeal No. 142 of 2020 to support their arguments in respect of this prayer. Moreover, Mr. Kilingo and Mr. Ukongoji were of one mind that, upon the certificate of seizure being expunged from the record, any evidence showing that the appellant was found in possession of twelve pieces of vitenge which was designed to show that he was found in possession of the said property on the day following the robbery incident as to justify the lower courts' invocation of the doctrine of recent possession, would definitely crumble away. With regard to the evidence of PW3 who told the trial court that, at the time of the incident, he took cover at the nearby pombe shop from where he could peep and manage to identify the appellant, the evidence which the learned Judge of the first appellate court considered and came to the conclusion that indeed the appellant was properly identified by PW3, Mr. Kilingo 5

vigorously attacked the above finding of the High Court arguing that, the robbery having been committed at night, it was possible that PW3 could have been mistaken in his identification of the appellant as the conditions obtaining at the scene of the crime, were not favourable for a correct identification of the culprits. Mr. Kilingo submitted that, had the learned Judge of the first appellate court subjected the evidence of the identity of the appellant to a deserving scrutiny, he would have come to the conciusion that the said evidence was quite unsatisfactory as the possibility of a mistaken identification were not totally eliminated. The second limb of Mr. Kilingo's argument sought to discredit PW3's evidence on the grounds that he might have been tipsy at the time he claims to have seen and identified the appellant as he had been consuming local brew before the occurrence of the robbery incident. However, when we sought to know from Mr. Kilingo as to whether the evidence given by PW3 that he had been consuming liquor before the robbery incident would, standing alone, have supported the inference that PW3 was so drunk as to probably suffer from a blurred vision or diplopia which is a common side effect of excessive alcohol consumption, the learned counsel finally conceded to the fact that there was no evidential basis upon which PW3's impaired vision could be inferred. Indeed, a mere fact that PW3 was consuming alcohol immediately before the robbery incident, does not by itself warrant the conclusion that, he was too drunk to

identify the assailants. On this argument by Mr. Ukongoji which so far remains unsubstantiated, we will say no more. Responding to the arguments by Mr. Kilingo in respect of the second limb of the appellant's complaint, Mr. Ukongoji submitted that the appellant was properly identified by PW3 who saw and identified him and his co-accused as they committed the charged offences. In his view, PW3 gave sufficient evidence on the lighting condition at the time of commission of the crime, and he went on describing the appellant's attire and physical appearance. It was the learned State Attorney's final submission that, the evidence of the identification of the appellant at the scene of the crime, was enough to support the conviction with no possibility of a mistaken identity. Further, the learned State Attorney submitted that, there was nothing to impede the visibility between PW3 and the appellant and that, to add credence to his testimony, he named him to PW8, the Ward Executive Officer, as one of the assailants. According to Mr. Ukongoji, all in all, the concurrent decisions of the lower courts were unassailable as there was ample evidence in support of the conviction. We will begin with the seizure certificate which was not read out in court after being admitted in evidence but the learned Judge of the first appellate court relied on it to find that the appellant was found in possession of the recently stolen property as to justify the invocation of the doctrine of recent possession against the appellant. Indeed, the record of appeal at page 29

shows that, after being admitted in evidence, the seizure certificate was not read out as required by law. In some of our recent decisions, we have held that the omission by the trial court to read out or cause the contents of a documentary exhibit in a criminal trial to be read out after being admitted in evidence, is a serious error which can lead to a miscarriage of justice. We put the above point aptly in the case of Maneno Matibwa Francis @ Babio v. Republic, Criminal (Appeal No. 35 of 2021 (unreported) where we stated categorically that: such a failure occasioned injustice to the appellant as he failed to know the contents o f the exhibit tendered." We wish to observe that, as the law in our jurisdiction stands today, it is almost a dereliction of duty for a trial court not to read out or cause to be read out the contents of a document which is admitted in evidence as an exhibit. It follows therefore that, where the nature of a given criminal case necessitates that a relevant documentary exhibit must be read out to the accused person but for any reason the trial court fails or omits to read or cause it to be read out and, in the consequence of such failure, the accused is seriously prejudiced because the nature of the evidence which was relied on by the prosecution to implicate him was not brought to his knowledge, the omission by the court will invariably operate in favour of the accused and result in an acquittal. The only

exception to the above position of the law would be where there is some other overwhelming evidence given by the prosecution and such evidence is capable of offsetting the prejudice which might have arisen from the court's omission or failure to read out the contents of the document to the accused. It must be emphasized here that, admitting a document into evidence without reading it out to apprise the accused of its contents, is an omission which has enormous unfair prejudicial impact to the accused and for us, to hold otherwise, would certainly upset the existing precedents that form the bedrock of our established jurisprudence on the point. Our fear, and this we have seen with our eyes, has always been that, without strict adherence to the above requirement, it is only natural and indeed instinctual that the lower courts will quite often proceed to rely on such evidence which is invariably unchallenged and convict the accused persons on the basis of the evidence which was not brought to their knowledge as it happened in this case. Since this appears to be a recurring problem, we must stress, for the benefit of the lower courts that, they should always keep in mind the guidance we have been unremittingly giving on this subject whenever they deal with any documentary exhibit in criminal trials. In this connection, we also need to underscore the point that, it is quite undesirable for this Court to be used as an avenue to constantly correct errors committed by the lower courts especially on procedural matters such as the present one on which we have, time and 9

again, given guidance with both passion and lucidity. That said, we entirety agree with the two counsel that indeed, after being admitted in evidence, the seizure certificate (Exh. PI) was improperly dealt with in violation of the applicable practice. We therefore expunge it from the record. As might be expected, that is the harsh ramifications that in terms of our current jurisprudence must befall any documentary exhibit which is admitted in evidence without being read over to the accused person to apprise him of its contents. With regard to the evidence of identification of the appellant by PW3, as we have already indicated, the learned Judge of the first appellate court considered it and found it to have a strong probative value. His conclusion was based on the following premises: First, that there was, sufficient lightning from what he called "a bright solar light" and secondly, that, PW3 had seen the appellant a couple of times before the occurrence of the robbery incident which simplified his identification. The learned Judge also found that PW3's identification of the appellant was positive because he mentioned his attire and described his stature. He finally observed that, after the incident, PW3 had named the appellant to PW8 who was at the time, a Ward Executive Officer. Bearing in mind the fact that the robbery incident occurred at 8.00 pm when it was night, the question we are enjoined to determine is whether or not, in view of the evidence on the record and the applicable law, the learned 10

Judge was entitled to come to the conclusion that the appellant was positively identified as having been one of the armed robbers who stole the properties itemised in the first and second count on the material night. We wish to state at the outset that, the weakness and dangers inherent in visual identification evidence, have for quite a long time, been a subject of discussion and judicial pronouncements in various common law jurisdictions but all,with a single common denominator. In our jurisdiction, after several decisions, the position was finally settled in the celebrated case of Waziri Amani v. R [1980] T.L.R 250 in which we categorically stated inter alia, 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 a ll possibilities o f mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight". With regard to the pertinent question as to how the inherent danger in the evidence of visual identification could be avoided or lessened, we went on observing that: "...the extent to which the possibility o f the danger o f an affront to justice occurring in this type o f case depends entirely on the manner and care with which the trial judge approaches his task o f analysis and 11

examination o f evidence. I f the judge does his job properly, and before accepting any evidence o f identification, he does through a process o f examining closely the circumstances in which the identification o f each witness came to be made, the dangers o f convicting on such evidence are greatiy lessened". By setting the above standard of proof which is relatively high, we were mindful that, the evidence of visual identification is notoriously subject to error and has often led to a miscarriage of justice, hence the necessity for the trial court to warn itself of the special need for caution before convicting while relying on the correctness of the identification of an accused person. Regarding the probable follow up question as to which then is the proper way for the trial Magistrate or Judge to approach the evidence of visual identification, our decision in the above cited case clarified that: "Although no hard and fast rules can be laid down as to the manner a trialJudge should determine questions o f disputed identity, it seems dear 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 o f a il the surrounding circumstances o f the crime being tried. We would, for example expect to find on record questions such as the following posed and resolved by him: the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred,

for instance, whether it was day or night-time, whether there was good or poor iightning at the scene; and further whether the witness knew or had seen the accused before" Having mentioned some of the matters which the trial Judge or Magistrate is expected to consider before arriving at any definite conclusion on the often contested issue of identity of a criminal suspect, we then concluded that: "If at the end o f his examination ; the judge is satisfied that the quality o f identification is good, for example, when the identification was made by a witness after a iong period o f observation or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, we think, he could, in those circumstances, safely convict on the evidence o f identification. On the other hand, where the quality o f identification evidence is poor, for example, where it depended on a fleeting glance or on a longer observation made in difficult conditions such as a visual identification made in a poorly lighted street, we are o f the considered view that in such cases the judge would be perfectly entitled to acquit * We have closely examined the evidence of PW3 which shows clearly that, after the scene was invaded by the robbers, he ran into the nearby pombe shop. From there, he told the trial court that, he could see and identify the 13

appellant and his co-accused. However, we ask ourselves and this was not considered by the first appellate court as to leave no margin of doubt, if after arrival of the robbers, almost all persons in the vicinity ran away apparently in fear of their lives as attested to by PW3 himself, how could PW3 under the same conditions and circumstances, have got the courage and comfortability to take cover and enjoy an uninterrupted observation of the appellant as to identify him without any difficulties. Given the horrifying condition together with the complete mayhem that was created by the robbers who were indiscriminately firing in the air to scare everybody within the vicinity and, considering the fact that the robbery occurred during the night time when it was already dark, it is certainly for these reasons that even the trial court had to look for some other corroborative evidence before it went on to find the appellant guilty. The said evidence came from the testimonies of Jeremia Liagaka (PW5) and Inspector Ntinginya (PW6) who, as already explained, had told the trial court that, the appellant was found in possession of twelve pieces of vitenge which were stolen during the robbery incident. It is also worth noting here that, if the judgment of the trial court is anything to go by, it will be noted at once that the second accused who was allegedly identified and named by PW3 along with the appellant, was acquitted because the only evidence against him which was also the identification 14

evidence by PW3, was found wanting and there was no other evidence to corroborate PW3's evidence. As already indicated, because of the unfavourable conditions and circumstances obtaining at the scene of the crime, the identification of the appellant by PW3 could not be said, to have been completely free from mistakes. We may also add that, since the two lower courts sought and found corroboration of PW3's identification evidence from the evidence of PW5 and PW6 whose evidence showed, inter alia that, on the day following the robbery incident, the appellant was found in possession of the stolen clothes, the evidence which we have already discarded, we do not share the first appellate court's belief on the veracity of PW3's testimony. The view we take is that, after recap of the evidence of both the prosecution and the defence, the learned Judge of the first appellate court in our respectful view, made scanty efforts to evaluate the evidence. As a result, having failed to detect the apparent problems with the seizure certificate, the learned Judge committed another serious error when he failed to apply some caution to the evidence of PW3 which, we must say, is not on a better footing as it is still in the realm of single witness identification evidence and which was found wanting by the trial court. Having found that the seizure certificate was wrongly relied on to support the appellant's conviction and, having subsequently expunged it from the 15

record and, as we have amply demonstrated, since the evidence of the appellant's identification by PW3 remains highly suspect and uncorroborated, it is our final view that, all the above taken together, the only inference to be drawn is that, the charge against the appellant was not proved beyond reasonable doubt as required by law. In the ultimate event, we allow the appeal, quash the appellant's conviction and set aside the custodial sentence meted out on him. We order for his immediate release from jail if he is not otherwise detained for some other lawful cause. DATED at DAR ES SALAAM this 20th day of September, 2024. S. A. LILA JUSTICE OF JUSTICE P. S. FIKIRINI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL Tlie Judgment delivered this 23rd day of September, 2024, via video link with High Court Tabora in the presence Mr. Steven Mnzava, learned State and in the presence of the ^Respondent/Republic is hereby certified as a true copy of the original.