Sprian Mtungilei vs Republic (Criminal Appeal No. 244 of 2021) [2023] TZCA 17957 (13 December 2023)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: WAMBALI. J.A.. FIKIRINI, J.A. And KHAMIS. 3.A/t CRIMINAL APPEAL NO. 244 OF 2021 SPRIAN MTUNGILEI ............ ......... APPELLANT VERSUS THE REPUBLIC ...... ........... .......... RESPONDENT (Appeal from the decision of the Court of Resident Magistrate of Bukoba with Extended Jurisdiction at Bukoba) fLuambano, SRM Ext. Jur.) Dated the 29th day of March, 2021 in Criminal Appeal No. 26 of 2021 JUDGMENT OF THE COURT 5th & 130 1 December, 2023 WAMBALI, 3.A.: The appellant, Sprian Mtungilei appeared before the District Court of Karagwe (the trial court) where he was charged with the offence of Armed Robbery contrary to section 287A of the Penal Code, Cap 16. It was alleged in the particulars of the charge that on 5th January, 2018 at Kahanga Village within Karagwe District in Kagera Region, the appellant stole TZS. 2,800,000.00 the property of Rweyunga Buyombo and that he used the bush knife and stick to threaten and retain the said money. The appellant denied the allegation hence a full trial was held.

The prosecution case was supported by four witnesses, namely, Yusta Clavery (PW1), Rwekunga Buyombo (PW2), G. 3317 D/C Denis (PW3), Biston Kaijage (PW4) together with the sketch map and the PF3 which were admitted as exhibits PI and P2 respectively. It is noteworthy that the said exhibits were discounted from being relied in evidence by the first appellate court because the contents were not read over after admission by the trial court. Basically, the substance of the prosecution evidence was that during the day time of 4th January, 2018 in the afternoon, PW2 soid seven cows to one Kajomba Sprian and Juma who paid TZS. 2,600,000.00 and handed them to PW1 for safe custody. Later, at around 1:00 am on 5th January, 2018, bandits invaded PW2's house and directly confronted PW1 who slept in one of the rooms, cut her with bush knife and forced to surrender TZS. 2,500,000.00 to them. The robbers also confronted PW2 in another room and injured him on several parts of his body using a bush knife and as a result, he gave them TZS.300,000.00. Thereafter, the bandits disappeared. PW1 testified that, she managed to identify the appellant who was holding a bush knife because she knew him before the incident. PW1 stated further that, she also identified the appellant and the other bandits because there was solar light, they stayed in the house for long

time and were dressed in long jackets. PW2 supported the evidence of PW1 on what transpired at the scene of crime. He added that he knew the appellant well because he lived in the same village and that he was the one who cut him with a bush knife and robbed the money, PW2 testified further that when the said bandits had gone, he sought the assistance of the neighbours who took him and PW1 to the village office and then to the police station where they were given the PF3 for medical examination. During re-examination, PW2 insisted that he had sold the cows to the appellant and his friends earlier on 4thJanuary, 2018 and that, they were the same persons who went to his house later in the night on 5th January, 2018 and robbed the money they had paid to him. PW2 maintained that he had no grudges with the appellant before the incident. PW3, a Police Officer interrogated PW1 and PW2 concerning the incident and draw a sketch map. He testified that after investigation, he discovered that the appellant and his friends committed the offence and were identified at the scene of crime. PW4, a doctor at Nyakahanga Hospital treated PW2 who was seriously injured with a cut wound on his head and the eyes were swollen and filled in the PF3. In defence, the appellant did not deny that he was the neighbour of PW2 and that he had bought cows before the incident. However, he

denied to have committed the offence and contended that those who committed it ran away. At the climax of the trial, the trial court found the appellant guilty, convicted and sentenced him to imprisonment for thirty years. Aggrieved, he appealed to the High Court but his appeal was transferred and assigned to Luambano, Senior Resident Magistrate (SRM) with Extended Jurisdiction who presided it at the Resident Magistrate Court of Bukoba at Bukoba. Essentially, the appellant's appeal was dismissed in its entirety, hence the instant appeal. The appellant lodged a memorandum of appeal comprising six grounds. However, at the hearing of the appeal, it was agreed to compress the said grounds into four. One, that the name of the person threatened by the robbers was not mentioned in the charge. Two, that the identification of the appellant was not watertight. Three, that the judgment of the trial court did not comply with the provisions of section 312 of the Criminal Procedure Act. Four, that the case against the appellant was not proved beyond reasonable doubt. At the hearing of the appeal, the appellant appeared in person. Essentially, he urged us to consider his grounds of appeal as presented and allow the appeal. Ms. Judith Mwakyusa, learned Senior State Attorney

assisted by Ms. Edith Tuka and Mr. Yusuph Mapesa, learned State Attorneys appeared for the respondent Republic and strongly resisted the appeal. Having heard the parties' submissions for and against the appeal, we are of the view that the determination of this appeal hinges on the second and fourth grounds, particularly on the issue of identification and whether the case was proved beyond reasonable doubt. It was forcefully argued by Mr. Mapesa that both PW1 and PW2 properly identified the appellant as among the robbers who invaded their residence that night, injured them and stole the money stated in the charge sheet. He argued that PW1 and PW2 identified the appellant through the aid of light from solar panel and that both knew him before the incident as a neighbour. Besides, he added, before the incident the appellant had bought seven cows from PW2 on 4thJanuary, 2018 and paid the money which was later robbed from them. He added that both witnesses testified that on the material night, the appellant and his friends dressed in long jackets and that they spent some time in the house before they ran away. The learned State Attorney submitted that the evidence adduced by the witnesses met all the conditions for proper identification laid down by the decisions of the Court. Particularly, he relied on the

decision in Matata Wekwe v. The Republic, Criminal Appeal No. 241 of 2018 [2022] TZCA 260 (11 May 2022, TANZLII) in which reference was made to the case of Scup John and Another v. The Republic, Criminal Appeal No. 197 of 2008 (unreported) where the factors for proper identification laid in Waziri Amani v. The Republic [1980] T.L.R 350 were restated. Mr. Mapesa maintained that, in the circumstances of this case in which the appellant was well known by PW1 and PW2 before the incident, there was no possibility of mistaken identity. He emphasized further that through the witnesses, the prosecution proved the case against the appellant beyond reasonable doubt. He therefore pressed us to dismiss the appellant's complaint on this ground. It is common knowledge that in Waziri Amani (supra), the Court propounded some relevant factors to be considered for proper identification of assailants. Since then, in its several decisions, the Court has consistently emphasized that, before a court convicts an accused based on evidence of visual identification, such evidence must be watertight so as to eliminate the possibility of honest mistaken identity. That the court must also satisfy itself that there are no impediments affecting the correct identification of the accused by the witness (see 6

Kazimiri Mashauri v. The Republic, Criminal Appeal No. 252 of 2010 -unreported). Indeed, even in a case where a victim purports to have recognized the assailant, as was the case here, the court should still be cautious of rushing to the conclusion that the assailant was fully recognized as there may still be mistaken identity. In Hamis Hussein and Two Others v. The Republic, Criminal Appeal No. 86 of 2009 (unreported), the Court remarked as follows: "We wish to stress that even in recognition cases, where such evidence may be more reiiabie than identification of a stranger, dear evidence on the source o f iight and its intensity is o f paramount importance>This, is because, as occasionally held, even when the witness is purporting to recognize someone he knows, as was the case here, mistakes in recognition o f dose relatives and friends are often made. " (See also Shabani Daudi v, The Republic, Criminal Appeal No, 28 of 2001 - unreported). However, the position stated above does not suggest that it is impossible for a victim to identify the assailant even at night. On the contrary, it means that in every case involving visual identification, the

court must subject the evidence of the said witness to thorough scrutiny before reaching a finding that the identification was watertight. In Philip Rukaira v. The Republic, Criminal Appeal No. 215 of 1994 (unreported) the Court stated: "It is not always impossible to identify assailants even at night and even where victims are terrified. The evidence in every case where visual identification is what is relied on, must be subjected to careful scrutinyiy and regard being paid to all the prevailing condition and to see if, in all the circumstances, there was really sure opportunity and convincing ability to identify the person correctly and that every reasonable possibility o f error has been dispelled." We are alive to the settled position that this being a second appeal, the Court rarely interferes with the concurrent findings of facts by the two courts below. It can only do so where it is demonstrated that, there is misapprehension of evidence on the record or wrong application of the law leading to wrong conclusion occasioning miscarriage of justice. For this stance, see for instance, The Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 149, among others. 8

In the case at hand, having carefully scrutinized the evidence on the record, we are of the view that the identification of the appellant was not watertight, We shall demonstrate shortly. The crucial witnesses who testified to have identified the appellant are PW1 and PW2. However, their evidence did not suffice to make a finding that the appellant was among the persons identified at the scene of crime. Firstly, apart from the description of PW1 and PW2 that they identified the appellant and other assailants because of the solar light and that they were dressed in long jackets, no further description like the colour of the said attire and physical appearance of the assailants were disclosed. This is more so because, the witnesses stated that they knew the appellant before, which is not disputed, and that the assailants spent long time in the house. However, this was not sufficient. In Anael Sambo v. The Republic, Criminal Appeal No. 274 of 2007 (unreported) the Court held that: "The fact that a witness knew the suspect before that date is not enough. The witness must go further and state exactly how he identified the assailant at the time o f the incident, say by his distinctive clothing, height, voice." 9

It is noted that in their evidence, PW1 and PW2 did not even say whether the assailants' faces were covered or not as that would have impeded or facilitated their identification, more so as it was during the night Secondly, both PW1 and PW2 during examination in chief did not mention the number of the assailants who entered into the house on the fateful date. They simply maintained that the appellant was with his friends. On the contrary, during re-examination, PW2 stated that the assailants were four without further descriptions. Thirdly, there is no indication in the evidence on the record that, both PW1 and PW2 described the appearance and the name of the persons who invaded them on the material date either to the alleged villagers who responded to the alarm or the police where they reported the incident on the same date. More importantly, PW1 and PW2 did not mention the names of villagers who sent them to the village office and later to the Police Station. Indeed, no any person from the village was summoned as a witness at the trial to support the prosecution case on the matter. Besides, PW3, the police officer who conducted the investigation and interrogated PW1 and PW2 concerning the incident did not also seem to know whether the appellant was specifically mentioned

as one of the assailants on the fateful date. He simply stated that after investigation he discovered that the appellant and his friends were identified at the scene of crime. With regard to the importance of giving description of assailants, in Rex v. Mohamed bin Allui (1942) 9 EACA 72, the defunct Eastern Africa Court of Appeal stated as follows: "In every case in which there is a question as to the identity o f the accused, the fact o f there having been given a description are matters o f the highest importance o f which evidence ought always to be givenr first o f ail o f course by the person who gave the description or purports to identify the accused, and then by the person to whom the description was given . " Therefore, the ability of a witness to name the assailant at the earliest opportunity is an assurance of his reliability. In Marwa Wangiti Mwita and Another v. The Republic [2002] T.L.R. 39, the Court stated that: "The ability o f a witness to name a suspect at the earliest opportunity is an important assurance of his reliability, in the same way as unexplained delay or complete failure to do so should put a prudent court to enquiry." ii

In most cases, witnesses who delay in naming the suspects without a reasonable explanation have risked their credibility being doubted and their evidence discounted. For this stance, see among others, Festo Mawala v. The Republic, Criminal Appeal No. 299 of 2007, Aziz Athuman @ Buyogera v. The Republic, Criminal Appeal No. 222 of 1999 and Juma Shabani @ Juma v. The Republic, Criminal Appeal No. 108 of 2004 (all unreported). Fourthly, the delay in arraigning the appellant at the trial court casts doubts on whether he was correctly identified at the scene of crime on the material date. Basically, if PW1 and PW2 really identified and mentioned the appellant to the villagers and the police on the same night of the incident, it is not known why the; charge sheet was presented before the trial court on 5thJune, 2018, five months from the date of commission of the offence, that is 5th January, 2018. though PW3 did not state the date when the appellant was arrested during examination in chief, when he was cross-examined, he stated that the appellant ran away without stating the exact date. This also casts doubts on whether PW1 and PW2 identified the appellant at the scene of crime. Moreover, both PW1 and PW2 did not state how and when the appellant was arrested after the commission of the alleged offence. 12

In matters of identification therefore, it is not only important to look at the conditions favourable for correct identification, but also the credibility of the identifying witness. In this regard, in Jaribu Abdalla v. The Republic [2003] T.L.R. 271, the Court observed that: "In matters o f identification, it is not enough merely to look at factors favouring accurate identification, equally important is the credibility of the witness. The conditions for identification might appear ideal but that is not a guarantee against untruthful evidence. The ability o f a witness to name the offender at the earliest possible moment is in our view reassuring though not a decisive factor. [ See also; Mafuru Manyama and Two Others v. The Republic ' f CriminalAppeal No, 178 o f2007, John Gulikola v. The Republic ' Criminal Appeal No. 31 o f 1999 and Yohana Dioniz and Shija Simon v. The Republic, CriminalAppeal No. 114 and 115 o f2009 (all unreported)]." From the foregoing, we are settled that the evidence of PW1 and PW2 did not conclusively prove that the appellant was correctly identified at the scene of crime. It follows that the case for the prosecution which entirely depended on identification of the assailants was not proved beyond reasonable doubt. We are further satisfied that the remaining 13

evidence of PW3 and PW4 cannot prove the prosecution case against the appellant. We therefore allow the second and fourth grounds of appeal. As intimated earlier, having resolved the two grounds, which suffice to dispose of the appeal, we do not need to deliberate and determine the first and third grounds. In the result, we allow the appeal, quash the conviction and set aside the sentence imposed on the appellant. Consequently, we order that the appellant be released from prison forthwith unless otherwise held for other lawful cause. DATED at BUKOBA this 12th day of December, 2023. F. L. K. WAMBALI JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 12th day of December, 2023 in presence of the appellant in person and Mr. Kanisius Ndunguru, learned State Attorney for the respondent Republic is hereby certified as a true copy of the original. A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL