Peter Marwa Mgore @ Roboti and Another vs Republic (Criminal Appeal No. 121 of 2014) [2018] TZCA 670 (3 July 2018)
Judgment
IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: MMILLA, J.A., MUGASHA, J.A., And MWANGESI, J.A.) CRIMINAL APPEAL NO. 121 OF 2014
- PETER MARWA MGORE @ ROBOTI }
- CHACHA RYOBA @ TA TOO .............................. , ........ .APPELLANTS VERSUS THE REPUBLIC ...........................................................•.•..•....••• ,, .... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (De Mello, J.) 25 th June & 5 th July, 2018 MMILLA, J.A.: dated the 5 th day of March, 2014 in HC. Criminal Appeal No. 19 of 2013 JUDGMENT OF THE COURT In this appeal, we are faced with one serious problem in that the charge sheet which shaped the offences which faced appellants; Peter Marwa Mgore @ Robot and Chacha Ryoba @ Tattoo (the first and second appellants respectively) and two other persons who were acquitted by the trial court is reported to have been misplaced and is nowhere to be seen. The Deputy Registrar has filed a Certificate appearing at page "A" of the Record of Appeal 1
and subsequently an affidavit, both of which state that their effort to trace it, including pursuit at the offices of the State Attorney and the police, was abortive. Faced with this situation, we posed to think on what would be the proper way forward. We have keenly searched for authorities focusing on the appropriate approach to the problem in our jurisdiction, but without success. We have nevertheless come across a persuasive Ghanaian case of Kwame Nkruma @ Taste v. Republic, Criminal Appeal No. 13/6/2016 (unreported) in which the Supreme Court of that jurisdiction at Accra encountered a situation similar to what is confronting us in the present appeal. At the hearing of the appeal in that case, it was found that the record of proceedings was incomplete because the charge sheet, the cautioned statement of the appellant, and the reasoned judgment of the trial court were missing. On the basis of that information, the appellant's advocate prayed the Court to allow the appeal and discharge the appellant. That Court held that:- ''Even though the charge sheet is missing, it is plain on the face of the record that the appellant and the two others were charged with three offences; conspiracy to commit robbery and two counts of robbery which 2
were read to them before their pleas were taken and the facts in support of the charges were given by the prosecutor. The absence of a reasoned judgment embodying factual findings resolved in the context of evidence led at a trial, is not in itself conclusive proof of the correctness or otherwise of those findings when they are impugned. It is the hard evidence received at the trial that an appellate court uses to determine the correctness or otherwise of those findings." [The emphasis is added]. We are persuaded that this is the correct approach in circumstances such as these. We seek to adopt it. In the present case, we have comprehensively read the Record of Appeal and the appellants' grounds of appeal. Although we appreciate that the availability of the charge sheet was extremely crucial to make the Court more informed of the nature and basis of allegation which were laid against the appellants; . we are nonetheless convinced that there is sufficient material therein to establish that they were charged with armed robbery contrary to section 287 A of the Penal Code Cap 16 of the Revised Edition, 2002 as amended by Act No. 4 of 2004; also that the first appellant was alone charged 3
with rape. As shown at page 33 of the record, the charges were read to them and they pleaded not guilty. This assertion is similarly based on the information contained in the judgments of the trial court and the first appellate court, as well as the appellants' notices of appeal in both the High Court and this Court. Further reliance is made on the evidence of the prosecution witnesses, particularly the evidence of PWl Sophia Bulebi and PW2 Peter Sanda; the victims of the charged incidents. Since a gun was used, there is no doubt that the incident was armed robbery. Certainly, we admit that it has not been possible to know under which provisions the count of rape was based. Luckily however, the first appellant against whom it was leveled was not found guilty on that count. We note however, that the trial court did not proceed to acquit him as it ought to have done. Nevertheless, we find solace on the fact that no sentence was pronounced in that regard. We take this opportunity to caution trial magistrates to be observant of the requirements of the law at every stage of the case, to its final conclusion. Since the problem of misplacement of charge sheets at the level of appeal is b~coming. frequent which is quite a disturbing experience, we have felt the urge to emphasize that where a charge sheet or any other document 4
t,. may be misplaced or lost, the way forward should be for the appellate court to determine tt,e appeal on the strength or otherwise of the evidence on record. We should, of course, caution that regard should be had to the facts and circumstances of each individual case. This paves way for us to revert to the essence of the present appeal. Before proceeding further however, we have found it vital to revisit, albeit briefly, the facts of the case as may be relevant to the determination of this appeal. On 18.3.2006 around 2:30 hours, bandits stormed into the matrimonial home of PW2 Peter Sanda and PW1 Sofia Bulebi at Bugarika Miembeni area at Bugando locality. PW1 and PW2 testified in common that the intruders gained access to that house after breaking the main door and subsequently proceeded to the bed room. They demanded to be given money. Following the couple's hesitation to comply, the bandits assaulted the couple. While PW1 was cut with a machete on her neck, chest and back, PW2 was hit on the neck. Also, while PW1 alleged that she managed to identify two of the bandits amongst the four who had entered in that house, that is the 2 nd and 4 th accused persons (the present appellants); PW2 purported that he identified three of them, the 2 nd , 3 rd and 4 th accused persons. They alleged similarly that they 5
identified them with the aid of light sourced from a lamp which was in their bed room. PW1 added that she likewise identified the 4 th accused (second appellant) by voice because he was her brother in law in that the latter's brother married her younger sister. She elaborated that it was the first appellant who cut her with the machete, and that they yielded and gave them T.shs 80,000/=. After that, the bandits ransacked the couple's house, picked good clothes they found and a radio, among other properties. They equally alleged that the second appellant raped PW1. After about half an hour later, the bandits hurriedly left the place. It was then that PW1 raised alarm, following which their neighbours arrived at the scene of crime. After reporting the incident at police station, the neighbours rushed both victims to hospital for treatment. On the other hand, PW3 No. E. 1242 D/Cpl. Sangai test_ified that upon receiving information of that occurrence, he had chance to talk to PW1 who told him that she identified one Peter 'Robert' (Robot?) as having been one of the bandits, and that she identified him because that accused was her brother in law as the latter's brother married her younger sister. Upon that lead, he decided to make a follow up. In the course of his investigation, an anonimous person told him that Peter 'Robert' (Robot?) boarded a bus to Musoma. They 6
contacted the police in Musoma who succeeded to arrest the bandits on 19.3.2006 at Kirumi Road Block, and that they were found in possession of various properties suspected to have been stolen. According to PW4 Faustine Jackson Mafwale, who like PW3 was a policeman (rank undisclosed), the appellants were found in possession of stolen properties which included a bag full of women clothes, PW2's CCM card, one radio, cellular phones and an identity card of the latter's sister one Angelina Sanda. He was one of the policemen who interrogated the appellants and their colleagues. They allegedly told him that they came from Geita. After counter- checking with his colleagues in Geita, and making phone calls to some of the people whose names appeared in one of the phones the accused persons were found with, they were satisfied that the suspects were untruthful. They took the accused to Musoma Central Police Station at which they re-interrogated them. It was then that they allegedly admitted involvement. The accused persons were brought to Mwanza at which they were eventually charged of armed robbery as it were. On their part, each of the appellants denied involvement in the charged crime. In essence, both of them were forceful that they were not correctly identified. 7
As aforesaid however, though the trial court found two of the accused persons not guilty and acquitted them, so also that the first appellant was found not guilty on the count of rape; it convicted them (appellants) on the joint count _of armed robbery for which each was sentenced to a term of 30 years imprisonment. They unsuccessfully appealed to the High Court, Mwanza Registry, hence the present appeal to the Court. Before us, each of the appellants appeared in person, and fended for themselves; whereas the respondent Republic enjoyed the services of Mr. Castus Ndamugoba, learned Senior State Attorney, assisted by Ms Subira Mwandambo, learned State Attorney. The appellants filed separate memoranda of appeal, each one of which raised nine (9) grounds. Noticeably however, those memoranda are in all respects identical. A close scrutiny of those grounds however, reveal that in essence there are six areas of complaint as follows; one that, they were not correctly identified; two that, exhibits Pl "A", Pl "B" and PX1 were wrongly tendered by PW1 and PW3 who were not the persons who seized them, and that PW7 who was allegedly. among the policemen who apprehended them was not given opportunity to ascertain those properties; three that, during the recovery of the alleged properties the police had neither the search order nor 8
the certificate of seizure; four that, in handling those properties the policemen broke the chain of custody which did not rule out the possibility of tempering with them; five that, the prosecution witnesses were not credible; and lastly that, the prosecution side did not prove the case against them beyond reasonable doubt. At the commencement of hearing, the appellants prayed in common for the Court to adopt ·their memoranda of appeal and chose for the Republic to submit first. We granted the prayer and accordingly invited Mr. Ndamugoba to make their submission. Mr. Ndamugoba hurried to inform the Court that they are supporting the appeal, essentially because the evidence of visual identification on which the appellants' conviction largely depended, was not watertight. He ventured to elaborate their viewpoint. In the first place, the learned Senior State Attorney submitted that the evidence of PWl and PW2, who were the key eye witnesses, was not watertight on the ground that they were not clear as to the source of light with the aid of which they alleged to have identified the appellants. PWl said that she identified the second and fourth accused persons (the appellants) because 9
one of the bandits was in possession of a torch which they flashed in their faces. Besides, that witness had testified that there was likewise a lamp in their bedroqm which was lit. However, she did not explain the intensity of the said light. On the other hand, PW2 said he identified three bandits; the 2 nd , 3 rd and , 4 th accused persons (that includes the appellants). According to Mr. Ndamugoba however, the evidence of PW2 suffered the same deficit as that of PW1. The learned Senior State Attorney submitted further that PW2 too did not explain the intensity of the light from the said lamp. PWl had testified as well that she identified the appellants by voice. In that regard, Mr. Ndamugoba said that piece of evidence too. was unreliable because she did not readily mention their names to the neighbours who arrived at the scene of crime in answer to the alarm they had raised. He also pointed out that her assertion during cross examination by the second appellant that she named them to the neighbours was an afterthought because she did not cover it in her evidence in chief. Given this situation, Mr. Ndamugoba submitted thatsuch evidence was equally weak and unbelievable. 10
As regards the evidence of PW2, Mr. Ndamugoba argued that it was equally unreliable because he was not consistent. He reasoned that PW2 had initially said' that he· identified the 2 nd , 3 rd and 4 th accused persons at the scene of crime (two of whom are the appellants), but he later said during cross examination by the second appellant that he identified · them in the identification parade. According to Mr. Ndamugoba, this piece of evidence was unreliable because there is no any evidence on record to support the allegation that any identification parade was· organized and held in which the appellants were identified. In Mr. Ndamugoba's view, the inconsistence weakened his testimony on the point. For these reasons, the learned Senior State Attorney submitted that this ground challenging the evidence of visual identification has merit and urged the Court to allow it. Mr. Ndamugoba submitted generally on grounds 5 to 9. As already pointed out, these grounds are complaints, respectively, on trial court's failure to give chance to PW7 to identify the properties which he and his team purportedly seized at Kirumi Road Block; absence of seizure certificate; the fact that · the chain of custody was broken in handling the purportedly seized properties from the time of seizure to the time of tendering them before the 11
trial court; credibility of the key eye witnesses; and finally the complaint that the case was not proven against them beyond reasonable doubt. With equal force, Mr. Ndamugoba submitted that PW7 was one of the policemen who participated in the arrest of the appellants at Kirumi Road Block whereat the allegedly stolen properties were seized, but he was not led to identify the said properties which were tendered by PWl. He contended that omission to do so weakened the already feeble evidence of the prosecution that the appellants were found in possession of any of those properties because PWl herself did not explain how the said properties fell in her hands since those properties were supposed to be in the custody of the police who seized them, or rather the investigator of the case. The learned Senior State Attorney added that the absence of plausible explanation on how those properties reverted to her as aforesaid, affirms the appellants' complaint that the chain of custody of those properties was broken. Even, Mr. Ndamugoba added, the prosecution did not tender in the trial court the seizure certificate as contemplated by law. Given such a situation, he went on to submit, he was in agreement with the appellants that it clouded the allegation that they were found in possession of the alleged properties. 12
On another point, Mr. Ndamugoba submitted that the key eye witnesses, that is PW1- and PW2, were not credible witnesses on the ground that both of them gave contradictory evidence on the question of identification. He said that PW1 said she had known them before, but that such claim creates doubts because she failed to name them at the earliest possible opportunity to the neighbours who rushed to the scene of crime in response of the alarm they raised. On the other hand, Mr. Ndamugoba submitted that initially PW2 said he identified the appellants at the scene of crime, but at a later stage he claimed that he identified them in an identification parade whereas there was no evidence that any was organized and held. He held the view that because of those short comings, those two witnesses were not trust worth, hence that it cannot be said that the prosecution proved the case against the appellants beyond all reasonable doubts. He urged us to allow the appeal. On their part, the appellants commonly expressed their unfettered support to· the submission of the learned Senior State attorney. They emphasized that they were not correctly identified, and that the prosecution did not prove the case against them beyond reasonable doubt. They requested the court to allow their appeal and release them from prison. 13
.. Like the learned Senior State Attorney, we crave to begin with the evidence touching on visual identification. With great respect, we agree with Mr. Ndamugoba that the appellants' convictions were largely anchored on that kind of evidence. It is notorious that evidence of visual identification is of the weakest kind and no court should act on it unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely water-tight - See the cases of Waziri Amani v. Republic [1980] T.L.R. 250 and Aburaham Daniel v. Republic, Criminal Appeal No. 6 of 2007 CAT (unreported), among others. Aware of this fact, the emphasis has always been that. the courts should. remain attentive on whether or not the conditions at the scene of crime favour correct identification - See the case of Philipo Rukandiza @ Kichwechembogo v. Republic, Criminal Appeal No. 215 of 1994 (unreported) where it was emphasized that:- "The evidence in eve,y case where visual identification is what is relied on must be subjected to scrutiny due regard being paid to all the prevailing conditions to see if in all the circumstances there was really. sure opportunity and convincing ability to identify the person correctly · and that eve,y reasonable possibility of error has been dispelled. " 14
J In th~ present case, the charged incident of robbery occurred at mid- night. PW1 and PW2 testified in common that they identified the appellants · · with the aid of light sourced from the lamp which was in their bed room. However, both of them did not elaborate the type of lamp they allegedly had in their bed room. Similarly they did not explain the intensity of the light which came from the said lamp as often stressed - See the case of Issa Mgara @ Shuka v. Republic; Criminal Appeal No. 37 of 2005, CAT (unreported) where the Court emphasized that:- ''Jt is not enough to say that there was light at the scene of crime/ hence the overriding need to give sufficient details on the source of light and its intensity. " Given those pitfalls from the evidence of PWl and PW2, we agree with Mr. Ndamugoba that failure to state the intensity of the said light did not eliminate the possibility of mistaken identityr a doubt which we resolve in favour of the appellants. Likewise, PW1 stated that the bandits came with a torch which they flashed in their faces, thus enabling them the more to identify their assailants. Once again, we agree with Mr. Ndamugoba that that source of light too could not have enabled them to correctly identify their attackers because if the torch 15
was flashed in their faces, most probably it impaired them from clearly seeing their attackers than the other way round. In the case of Michael Godwin Another v. Republic; Criminal Appeal No. 66 of 2002 (unreported) the Court observed that:- "It is inconceivable that PW1 or PW2 were able to identify the bandits when the bandits were flashing the torch light at them (PW1 and PW2). It is common knowledge that it is easier for the one holding or flashing the torch to identify the person against whom the torch is flashed. In this case, it seems to us that with the light flashed at them (PW1 and PW2), they were more likely dazzled by the light. They could therefore not identify the bandits properly. In that case, the possibility of mistaken identity could not be ruled out. " It is possible that this is what happened in the present case too, thus creating a big possibility that PWl, and PW2 did not correctly identify the appellants. PW1 had testified as well that she identified the appellants by voice. We wish to restate that for such kind of evidence to be relied upon, it must be established ·that the witness was very familiar with the voice in question as being the same voice of a person at the scene of crime - See the cases of Kaganja Ally and Juma Ally v. Republic [1980] T.L.R.270, Baldwin 16
Komba @ Baloo v. Republic, Criminal Appeal No. 56 of 2003, CAT, Kennedy Ivan v. Republic, Criminal Appeal No. 128 of 2007, CAT and Stuart Erasto Yakobo v. Republic, Criminal Appeal No. 202 of 2004 CAT (all unreported). The rationale for caution was underscored in Kennedy Ivan's case where the Court underlined that:- "That voice identification is one of the weakest kinds of evidence and great caution must be taken before acting on it. This is because there is always a possibility of a person imitating another person's voice. ... , ✓ As already pointed out, in the present case PW1 asserted that the first appellant was her brother in law in that the latter's brother married her sister, also that the second appellant was their neighbour. However, this witness weakened this piece of evidence by her failure to readily name them. We wish to recap what we said in the case of Marwa Wangiti Mwita and another v. Republic [2002] T.L.R. 39 that the ability to name the appellant(s) at the earliest opportunity is an all-important assurance of the witness' reliability, in the same way as unexplained delay or complete failure to do so should put a prudent Court to inquiry. 17
In the light of what we have said in the preceding paragraph, it was unsafe to accept her testimony that she positively identified them by voice because had she really known them before, she could not have failed to mention their names to the neighbours who went to the scene of crime in response to the alarm they raised. Failure to do so creates doubts that could be she was not familiar to them. Once again, we resolve the doubts in favour of the appellants. There was also the evidence of PWS Esha Rusanya who was PW2's brother in law, who said he saw and identified the bandits at close range. However, his evidence is tainted with doubts in so far as he said he identified the bandits from outside by peeping through the window with an aid of moonlight, to which we entertain serious doubt about that version of evidence. Our doubts are fortified by the fact that PWl and PW2 testified of there having been light inside the house sourced from the lamp, something which PWS does not talk about. This implies that he may not have been telling the truth. For reasons we have assigned, we agree with Mr. Ndamugoba that the evidence of visual identification and identification by voice was not watertight, and ought not to have been relied upon. Consequently, we find that this ground has merit and we allow it. 18
As earlier on pointed out, Mr. Ndamugoba submitted generally on grounds 5 to 9. We have found it proper to do the same. To begin with, the trial and the first appellate courts believed that the clothes which were tendered in court during trial were the property of PW1, including the radio. We have carefully gone through the evidence of PW1 and PW2. None of them made attempts to identify those properties which formed exhibits PlA (the allegedly stolen clothes and a radio) as ought to have been. This Court has on several instances stressed that a bare allegation by the complainant claiming ownership of the articles which are the subject of theft is not sufficient, particularly so when it involves the identity of common articles - See the case of. David Chacha and 8 Others v. Republic, Criminal Appeal No. 12 of 1997, CAT (unreported), where the Court stated that:- ". . .it is a trite principle of law that properties suspected to have been found in possession of the accused persons should be identified by the complainants conclusively. In a criminal charge, it is not enough to give a generalize description of property. " 19
In view of the fact that this was not done in the present case, it is inescapable to entertain the doubts on the genuineness of PWl's assertion of ownership of the said property. Likewise, Mr. Ndamugoba submitted that the management and handling of the said properties from Kirumi Road Block where they were allegedly seized to Musoma Central Police station, then to Mwanza Central Police station, and eventually their reversion to PWl who tendered them in court as exhibits, leaves a lot to be desired. Once again, we agree with him·. In fact, that is what the doctrine of chain of custody is all about. That means the Chronological documentation and/or paper trail showing the seizure, custody, control, transfer analysis and disposition of evidence, be it physical or electronic. The chain of custody must not be broken such as to infer the tempering with the involved properties - See the case of Paulo Maduka and 4 Others v. Republic, Criminal Case No. 110 of 2007, CAT (unreported). As to the rationale behind it, the Court stated in that case that:- "The idea behind recording the chain of custody is to establish that the alleged evidence is in fact related to the alleged crime rather than for instance, having been planted fraudulently to· make someone appear guilty. The chain of custody requires that from the moment the evidence 20
is collected, its every transfer from one person to another must be documented and that it be provable that nobody else could have accessed it. " In the instant case, the properties in issue were those constituted in exhibits P1A (the allegedly stolen clothes and a radio), and P1B (the T-shirts which were allegedly won by the appellants at the scene of crime). Given that they were seized by the police at Kirumi Road Block, how did the ?ame fall in the hands of PW1 who tendered them instead of the investigator? This situation justifies the appellants' complaint that the principles of chain of custody were abrogated, hence our finding that those exhibits did not constitute good and reliable evidence because there was nothing to exclude the possibility of they having been tempered with as complained by the appellants. Thus, this ground too has merit. Equally significant is the fact that, there was no seizure certificate to establish in whose possession the properties under discussion were found. The police investigators ought to have complied with the mandatory provisions of section 38 (3) of the Criminal Procedure Act Cap 20 of the Revised Edition, 2002 by preparing the seizure certificate which could have shown the person(s) from whom the said articles were recovered, the persons who 21
recovered them, and the witnesses to that exercise. Section 38 (3) of Cap 20 provides that:- "Where anything is seized in pursuance of the powers conferred by subsection (1) the officer seizing the thing shall issue a receipt acknowledging the seizure of the thing, being the signature of the occupier of the premises or his near relative or other person for the time being in possession or control of the premises, and the signature of witnesses to the search, if any. " Once again, see the case of Paulo Maduka and 4 Others v. Republic (supra). In a nutshell, the absence of that important document adds more injury to the already unsatisfactory evidence of the prosecution, as doubts linger strongly that could be those articles were not recovered from the appellants as they have dynamically claimed. Given the circumstances, this ground too has merit. On another point, the appellants complained that PW1 and PW2 were not trustworthy witnesses. Once more, Mr. Ndamugoba was in agreement with them. We hold the same view. We will illustrate. 22
As we said in the case of Salimu Ally v. Republic, Criminal Appeal 106 of 2013, reliability on any particular evidence in a case depends on its credibility and the weight to be attached to such evidence. At its most basic, it involves the issue whether the witness appears to be telling the truth as he believes it to be. In the case of Abdalla Teje @ Malima Mahula v. Republic, Cr. Appeal No. 195 of 2005, CAT (unreported) we stated that any credible evidence should pass the following test:- (i) Whether it was legally obtained, . (ii) Whether it was credible and accurate, (iii) Whether it was relevant, material and competent, and (iv) Whether it meets the standard of proof requisite in a given case, otherwise referred to as the weight of evidence or strength or believability. There are certain pieces of testimonies in the evidence of PWl and PW2 which create doubts of their credibility. To begin with, PW! stated for example that she had known the appellants before the date of the invasion, and that while the fi'rst appellant was her brother in law because the latter's brother married her younger sister, she also said that the second appellant was their neighbour. However, as repeatedly said in this judgment, she· did not readily 23
mention their names to the neighbours who responded to the alarm they raised. We agree with both the appellants and Mr. Ndamugoba that the omission to readily mention their names to those neighbours creates doubts that she could be untruthful. Also, when she was cross examined by the second appellant if she was telling the truth or not, PWl was recorded at page 50 of the Record of Appeal to have said that she was testifying out of anger. Indeed, such an expression the more eroded her credibility. On the other hand, PW2 had initially testified that he had known the appellants before the date of the incident. When he was cross examined by the second appellant however, he changed his stance and stated that he identified them at an identification parade. Unfortunately however, there is no any eviden~e on the record to show that there was arranged and held any identification parade as claimed. In the circumstances, he was untruthful, which goes to the aspect of his credibility. On the basis of what we have just said, it is certain that the appellants' query on the credibility of PWl and PW2 cannot be easily dismissed. Thus, this ground too has merit, and we allow it. 24
In view of the doubts we have attempted to cover which we find and hold that they should be resolved in favour of the appellants, it is obvious that the prosecution did not prove the case against them beyond reasonable doubts. Consequently, we find that the appeal has merit and we allow it. Thus, we quash their conviction, set aside the sentences which were imposed against them, and direct their immediate release from prison unless they are being continually held for some other lawful cause. Order accordingly. DATED at MWANZA this 3 rd day of July, 2018. ;._' ,., B. M. MMILLA JUSTICE OF APPEAL S.E.A,MUGASHA JUSTICE Of. APPEAL S.S. MWANGESI JUSTICE OF APPEAL I certify that this is a true copy of the original. / B.A~ DEPUTY REGISTRAR COURT OF APPEAL 25