Robert s/o Faida @ Samora vs Republic (Criminal Appeal No. 276 of 2016) [2018] TZCA 756 (1 July 2018)

IN THE COURT OF APPEAL OF TANZANIA ATARUSHA CRIMINAL APPEAL NO. 276 OF 2016 ·(CORAM: MBAROUK, J.A., NDIKA, J.A., And MWAMBEGELE, l.A.) ROBERT S/0 FAIDA@ SAMORA ............................ APPELLANT VERSUS THE REPUBLIC ... ~ .............................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Moshi) (Mwingwa, J.) Dated the 8 th day of June, 2016 \ in DC Criminal Appeal No. 7 of 2015

' JUDGMENT OF THE COURT 25 th June, & 3 rd July, 2018 MBAROUK, J.A.: In the District Court of Rambo at Mkuu, the appellant Robert s/o Faida @ Samora was arraigned for the offence of armed robbery contrary to sectton 287 A of the Penal Code, Cap. · 16 as amended by Act No. 3 of 2011. He was convicted and sentenced to thirty (30) years imprisonment. His appeal before the High Court was dismissed. Undaunted, he has preferred this second appeal. 1

Briefly stated, the persecution's case as it appeared before the trial court was to the effect that, on 24-01-2014 at around 03:00 a.m, Devotha Kasian Kimario (PWl) was awakened by the sound of her goats making noises. She went outside to see what was a miss and found the hut she used to keep her cow and goats closed but the pad lock was broken. When she looked inside the hut, she found no cow, but the goats were there. She described her cow as black in colour. PWl then ran to the main gate where she met the appellant, who was her neighbour facing her and immediately asked him as to why he was stealing her cow. PWl further testified that she was threatened by the ppellant that she would be hacked with a bush knife if she attempted to raise an alarm. PWl added that, at the scene of crime she saw the appellant and two other people driving her cow with the help of her torch which illuminated the scene with bright light since it contained two new batteries. PWl also testified that she saw the appellant on his fae after she flashed the torch light to him and that he was one and half (1 ½ ) paces away. Thereafter, she said that, the appellant rose a panga as if he was 2

attempting to hack her. PWl then ran away, but she fell down and became unconscious. After about twenty (20) minutes her daughter Evaline Kimario (PW2) awakened her and asked as to what transpired. PWl told PW2 that the appellant took their cow and they then raised an alarm which led some neighbours to gather at the scene in response. Again PWl named the appellant to her neighbours as the one who stole her cow. PWl, PW2 and \ their neighbours used their torches to make a follow-up of the stolen cow's hoof marks which led them to the appellant's house. PWl further testified that they also saw tyre marks of a motor vehicle but the hoof marks of the cow disappeared from there. The appellant was not found at his house. Thereafter PWl went to report the incident at Tarakea Police Station. The testimony of PWl was supported by the evidence of PW2 who was her daughter residing in the same house that she was robbed with her cow and made a follow-up of the stolen cow hoof marks up to the appellant's house with their neighbours but neither the cow nor the appellant was found. 3

Thereafter, PW3 up to PW6 told the trial court that after PWl informed them that her cow was stolen by the appellant, they assisted her in searching for the stolen cow by following the stolen cow hoof marks which led them to the appellant's house where they also saw the motor vehicle tyre marks. All of them testified not to have seen the appellant at his house when they arrived there. However, they stayed there until 8 a.m next morning when the appellant appeared at his house and narrated a story that he was on duty carryi.ng bags of cement of one Kwabuku in Kenya, but when they called the said Kwabuku through mobile phone, he denied to have seen the appellant at his place. They therefore sent him to Tarakea Police Station and E1344 Cpl. Andrew (PW7) arrested him and sent him to Court. In his defence, the appellant· categorically denied the offence charged against him. The appellant told the trial court that on 25-01-2014 at 10:45 a,m while he was at the shop, he· met two people, Abel Christian (PW3) and Joseph Ludovick (PW6) who wanted him to return the cow which he stole from PWl but denied that allegation. He further acknowledged that he is a 4

neighbour of PWl within a distance of about 200 meters and knows her well, but knew nothing as to what transpired at PWl's house on the material day concerning the robbery because he slept at his house. In this appeal, the appellant appeared in person unrepresented, whereas the respondent/Republic was· \ represented by Mr. Maternus John Marandu, learned Senior State Attorney. When the appeal was called on for hearing, it transpired that the appellant preferred four grounds of appeal which appeared as follows:- "1. That, the first Appellate court erred in law when it upholded (sic) the appellant's conviction and sentence by holding and making findings to believe that the appellant was positively identified at the scene of crime, while the circumstances and conditions favouring a proper and correct identification were not conducive. 5

·• .... 2. That the 1 st Appellate court erred in/aw when it failed to note that the question of familiarity does not arise at all.\ 3. That the first appellate court erred in law in failing to note that the appellant's conviction and sentence was based on weak/ contradictory, inconsistence (sicJ incredible and uncorroborated evidence. 4. That the 1 st Appellate court erred in law and fact by convicting the appellant with the offence of Armed Robbery in absence of the necessary elements establishing the offence of Armed Robbery, and failure of the prosecution to prove their case to the standard required by law against the appellant. N When the appellant was asked as to whether he will elaborate his grounds of appeal or allow the learned Senior State Attorney to respond to them, he adopted them and opted to allow 6

. -. the learned State Attorney to submit first and if the need arises, he would give his rejoinder later. At the outset, Mr. Marandu indicated not supporting the appeal and requested to argue the 1 st and 2 nd grounds of appeal together and argue the 3 rd and 4 th grounds separately. Arguing against the 1 st and 2 nd grounds of appeal concerning identification, Mr. Marandu submitted that PWl's evidence on identification was very strong as she testified to have known the appellant as her neightbour since 2002. In addition to that, PWl testified to have possessed a torch with two new batteries, which she flashed on the appellant's face and hence identified him. The learned Senior State Attorney further contended that PWl was able to identify the appellant as she was only 1 ½ paces away from him. In support of his contention that it was PWl who flashed a torch light on the face of the appellant who was very close to her, the learned Senior State Attorney cited to us the decision of this. Court in the case of Evarist Mathias and Two Others Versus Republic, Criminal Appeal No. 36 of 2010 (unreported). Mr. 7

. . Marandu also submitted that, the record of appeal also shows at page 7 that PWl named the appellant by his name to her daughter PW2 and her neighbours when they responded to her call for help. He therefore urged us to find that the accumulation of all that identification evidence adduced by PWl was watertight and strongly proved that the appellant was well identified by PWl at the scene of crime. To support his contention, Mr. Marandu cited the case of Fadhili Gumbo alias Matola and Three \ Others Versus Republic [2006] TLR 50 where this Court held that where the witnesses were close to allow proper identification and were not contradicted that they knew the appellants before the date of the incident, their identification by name cannot be faulted. He then prayed for us to find the 1 st and 2 nd grounds of \ appeal devoid of merit. In his response to the 3 rd ground of appeal, Mr. Marandu submitted that the evidence of all prosecution witnesses PWl, PW2, PW3, PW4, PWS and PW6 were identical and there was no inconsistency, because all of them testified that the hoof marks of 8

. . the stolen cow led them to the appellant's house. For that reason, he said, as the appellant did not cross examine on evidence adduced by those prosecution witnesses on the issue of inconsistency, hence such evidence remains unchallenged and accurate. As to the appellant's claim that the evidence of prosecution witnesses was not credible, Mr. Marandu submitted that in this second appeal, the Court cannot interfere with the concurrent findings of fact of the two court below. As regards the · claim that PWl's evidence was not corroborated, Mr. Marandu said that as PWl's evidence was straight-forward, it required no corroboration. After all he added that PWl knew the appellant very well as her neighbour. In addition to that, Mr. Marandu claimed that in his defence the appellant gave an untrue evidence that on the day the incident of armed robbery occurred at PWl's house, he was at his house, but his witness Benedict Rogath Most,i (DW2) who was a tell cell leader testified not to know whether the appellant was at his home or not. He then referred us to the case of Daudi @ 9

Senga Sadrick and JoseptJ Asajile Mwankina Versus· Republic, Criminal Appeal No. 25 of 1998 (unreported) to support his contention where at page 11 this Court stated that lies of an accused person have been taken to corroborate the case for the prosecution. For that reason, he urged us to find the 3 rd ground of appeal to have no merit. In his response to the 4~h ground of appeal, the learned · Senior State Attorney submitted that all the ingredients of the offence of armed robbery under section 287A of the Penal Code as amended by Act No. 3 of 2011 were established and proved by the prosecution. For example, he said the element of stealing was established as PWl's cow was never returned since it was stolen. Also Mr. Marandu said, it has also been established that the appellant was armed with a bush knife. as a dangerous weapon. He added that the appellant at the scene of crime threatened to use violence to PWl to obtain and retain the cow. For that reason, Mr. Marandu urged us to find that all the ingredients of the offence of armed robbery were proved as both the trial court and the 1 st appellate court were satisfied that the 10

. . offense was committed. He therefore prayed for the 4 th ground to be found devoid of merit too. He prayed for the appeal to be dismissed. In his rejoinder, the appellant claimed that the intensity of ., the torch light was not disclosed clearly as the size of the batteries were not stated whether they were small or big. Also the second name of "Samora" was not stated bearing in mind that there are many people named "Samora." For that reason he urged us to allow his appeal. Taking into account the 1 st and 2 nd grounds of appeal which are mainly based on the issue of identification as to whether the appellant was properly identified at the scene of crime, it is not in dispute that PWl and the appellant were neighbours as they stayed only 200 meters apart, hence they knew each other even before the incident. Also as alleged by the \ prosecution evidence, the incident of armed robbery occurred at about 3 a.m on 24-01-2014 at Nanyere village within Rambo District, Kilimanjaro Region, hence as the incident occurred at night, it is a principle of the law that precautionary measure has 11

. . to be taken when evaluating evidence of visual identification when conditions are not conducive or rather not favourable for proper identification in order to avoid all possibilities of mistaken identity. For example in Raymond Francis Versus Republic [1994] TLR 100, this Court stated as follows:- " .. .it is elementary that in a criminal case where \ determination depends essentially oil identification, evidence on conditions favouring a correct identification is of the utmost important. " A plethora of authorities of this Court have stated that. in avoiding possibilities of mistaken identity the identification evidence must be watertight and have gone further to give the following factors to be considere.d:-

1. How long did the witness have the accused under his/her observation.

2. What was the estimated distance between the witness and the accused - proximity. 12

3. If the incident occurred at night what kind of source of light and its intensity enabled the witness to identify the accused. I

4. Did the witness know the accused before the incident and for how long.

5. In the course of observation of the accused by the witness, was there any obstruction experienced by the witness. I See. Paschal Christopher and Six others Versus Republic, Criminal Appeal No. 106 of 2008, Antony Kigodi Versus Republic, Criminal Appeal No. 99 of 2005 (both unreported), Waziri Amani Versus Republic [1980] TLR 250, Raymond Francis (Supra) to name a few. In the instant case, one, it was well established that PWl I and the appellant knew each other since 2002 as they were neighbours. Two, at the scene of crime the record shows that PWl was only 1 ½ paces away from the appellant, hence he was quite close to her. Three, as to the source of light, PWl testified 13

</} •,ii to have flashed a torch containing two new batteries, hence it had enough light to enable her to see the appellant's face. According to Evarist Mathias and Two others (Supra) it is the person who flashes the torch to another person who can identify the other person and not the other way round. For all those reasons, we agree with Mr. Marandu that the appellant was positively identified at the scene, hence the 1 st and 2 nd grounds of appeal are devoid of merit. As regards the 3 rd ground of appeal, we fully agree with the learned Senior State Attorney that the evidence was strong and not weak, contradictory, inconsistent, incredible and uncorroborated. Looking at the record of appeal, there is no scintilla of evidence which shows that there were contradictions. Also the record does not show any inconsistency as the evidence of prosecution witnesses tallied with each other. For example PW1, PW2, PW3, PW4, PWS and PW6 testified that they followed the hoof marks of the stolen cow which led them to the appellant's house. We agree with the learned Senior State Attorney that as 14

the appellant did not cross examine those prosecution witnesses on the evidence adduced by them it is tantamount to an - \ acceptance of the unchallenged evidence as accurate. As all the evidence of prosecution witnesses was similar on that issue, the same is consistent, and accurate. See: Petro Paul Versus Republic, Criminal Appeal No. 143 of 2016, Fabian Chamila Versus Republic Criminal Appeal No. 136 of 2014 Emmanuel Saguda @ Sulukuko and Another Versus Republic Criminal \ Appeal No. 422 'B' of 2013 (all unreported) to name a few. As regards the claim that the evidence of prosecution witnesses was not credible, we are of the view that this was a general claim, it should have been specific After all as contended by Mr. Marandu this being a second appellate court, we are not supposed to interfere with the two concurrent findings of fact \ unless both lower courts had completely misapprehended the substance, nature and quality of the evidence, resulting in an unfair conviction. See Edwin Mhando Versus Republic [1993] TLR 170 at 174 where this Court stated as follows: 15

"... on a second appeal to this Court, we are only supposed to deal with questions of law bvt this approach rests on the premise that the findings of fact are based on a correct appreciation of the evidence. If, as in this case/ 1 both courts completely misapprehend the substance/ nature and quality of the evidence/ resulting in an unfair conviction/ this Court must in the interest of justice/ intervene. " Also see DPP Versus Jaffari Mfaume Kawawa [1981] TLR 149. In the premises as in this case there was no misapprehension we see no rea~on to intervene. As to the appellant's claim that PWl's evidence was not corroborated, we agree with the learned Senior State Attorney that as PWl's evidence was straight forward, there was no need to corroborate it. Her evidence is not one that would require corroboration. After all, PWl knew the appellant very well as her neighbour and there was no ~vidence of any dispute between them. 16

As regards the 4 th ground of appeal, that the essential \ elements of the offence of armed robbery were not established, again we agree with the learned Senior State Attorney that all the ingredients of the offence of armed robbery contrary to section 287A were established. Section 287A as amended by Act No. 3 of 2011 states as follows:- "287A. A person who steals anything, and, at or immediately before or after stealing is armed with any dangerous or offensive weapon or instrument, and at or immediately before or after stealing uses or threatens to use violence to any person in order to obtain or retain the stolen property, commits an \ offence of armed robbery and shall, on conviction be liable to imprisonment for a term of not less than thirty years with or without corporal punishment. " First, the element of stealing was proved as a cow was taken from PWl's cowshed on the material night. Secondly, it was established that when the appellant invaded PWl's house, he 17

was armed with a bush knife as a dangerous weapon, and threatened her to use such dangerous weapon in order to retain the stolen cow. As the two courts below were satisfied that the ingredients of the offence of armed robbery were established and proved by the evidence adduced by the prosecution witnesses, we see no reason to fau'lt the concurrent findings of the two courts below. For those reasons, we find the appeal devoid of merit and it is hereby dismissed in its entirety. DATED at ARUSHA this 1 st day of July, 2018. M.S.MBAROUK JUSTICE OF APPEAL G. A.M. NDIKA JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the Original. E. F. DEPUTY R RAR COURTO EAL 18