Nyangera Karegea vs Republic (Criminal Appeal No. 20 of 2015) [2017] TZCA 1001 (12 December 2017)

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA Jf tJ ~'L l4. {CORAM: LUANDA, J.A., MMILLA, J.A., And MKUYE, J.A.) CRIMINAL APPEAL NO. 468 OF 2015 NY ANG.ERA KARE GEA •••••••• ■ •••••• ■ •••••••••• I ■■ •• I •••••••••••••••••••• I ••••••••• ■■■ •• APPELLANT VERSUS THE REPUBLIC •••• I ■ •• ■ •••••••••••••• I •••••••• I I. ■ •• ■ ••••••••• I. ■ •• I. I ••••••• ■ ••• I ■ ••••• RESPONDENT {Appeal from the Decision of the Court of Appeal of Tanzania at Mwanza) 5 th & 12 th December, 2017 MMILLA, J.A.: {Matupa, J.) Dated the 2 nd day of October, 2015 in HC. Criminal Appeal No. 112 of 2015 .................. JUDGMENT OF THE COURT The appellant, Nyangera Karegea, was charged before the District Court of Musoma at Musoma with two counts of armed robbery contrary to section 287A of the Penal Code Cap. 16 of the Revised Edition, 2002 as amended by Act No. 3 of 2011. He was found guilty on both counts, convicted, and sentenced to thirty (30) years imprisonment on each count, plus twelve (12) strokes of the cane. The sentences were ordered to run concurrently. He unsuccessfully appealed to the High Court of Tanzania at Mwanza, hence the present appeal to the Court. 1

The complainant, Issack Joseph Ngola (PW1) and the appellant were residents of Bweri Nyabisarye area in Musoma. On the night of 09.01.2015, the former and his wife Christina Issack (PW2) were asleep at their home. Around 2:00 hours, four armed bandits invaded their house and smashed the main door and headed straight into the bedroom. One of the robbers hit PW1 with an iron bar in the head and, demanded to be given money or else they would be risking death. Frightened, and in order to save their lives, PW1 gave them his wallet which had T.shs 60,000/=. The invaders took that amount, but scorned it as too little and demanded more. They turned the threat to PW2 who hurriedly surrendered her hand bag which had T.shs 200,000/= and they took that money. They also robbed the couple two cell phones both of them make Nokia, a DVD deck make Zeck, and one piece of a Masai cloth, after which they fled. It was then that the couple raised alarm. PW4 Turnbo Jackson and PWS Thomas Chacha were among the persons who answered the alarm. Those two witnesses testified in common that on arrival at the scene of crime, they found PW1 lying on the ground crying, and noticed that he had injuries in the head. They arranged for transport and sent him to Musoma Central Police Station, and afterwards rushed him to the hospital for treatment. Meanwhile, 2

investigation was commenced which led to the appellant's arrest.· He was · subsequently charged before the court as it were. In his defence, the appellant protested his innocence. He told the trial court that on the night of 09.01.2015, he was asleep at his home, and that at mid-night he heard an alarm and woke up. On realizing that it came from PW1's home, he rushed to that place. He allegedly participated in the process of sending PW1 to the hospital, after which he returned home. He said he was arrested on that same day at 7:00 pm by seven people, an act he criticized as quite unfair to him, given the cooperation he offered. As regards the evidence which was mounted by the prosecution witnesses against him, the appellant told the trial court that he was not correctly identified. He also testified that PW4 and PWS were not witnesses of truth, adding that they faked their evidence against him because he was not in good terms with them. The appellant had called one defence witness, DW2 Samwel Wegoro. Unfortunately that witness did not advance the farmer's defence. The appeal was slated for hearing before us on 05.12.2017. The appellant appeared in person and was not represented, whereas the respondent Republic enjoyed the services of Mr. Mamti Sehewa, learned 3

Senior State Attorney, assisted by Ms Sophia Mgassa, learned State Attorney. The memorandum of appeal raised four grounds as follows; one that, the fact that the two prosecution eye witnesses did not readily name him demonstrated that they did not identify him; two that, the two courts below erred in accepting the prosecution's evidence based on familiarity only at the expense of other essential factors required to be taken into account in matters of evidence of visual identification; three that, the finding of the judge as regards the conduct of the appellant after the incident (page 80,line 14 to 18) was a mix-up of evidence as neither PW4 nor PWS testified in support of the fact that on that night they traced the appellant at his home; and four, that the prosecution did not prove the case against him beyond reasonable doubts. The appellant elected for the Republic to commence, reserving the right to respond if need would arise. On his part, Mr. Sehewa hastened to inform the Court that they are supporting the appeal for reasons to be advanced. He began by a general manifestation that the prosecution case depended on the evidence of identification, for which there were two eye witnesses namely, PW1 Issack 4

Joseph Ngola and PW2 Christina Issack. He submitted that those two witnesses did not correctly identify the appellant. He elaborated that although the couple testified that the appellant was their neighbour, that alone was not a guarantee that they correctly identified him because the conditions at the scene of crime were not conducive for correct identification. He reasoned that they testified in common that they identified him with the aid of light sourced from a solar lamp, but then they did not explain the intensity of that solar lamp. Besides, he went on to submit, the couple did not describe how the appellant was clad, further that they did not readily name him to the crowd that gathered at the scene of crime in answer to the alarm, or to the police at the time they reported the incident at Musoma Central Police Station. On the other hand, Mr. Sehewa submitted that though PW4 Turnbo Jackson and PWS Thomas Chacha testified that they met the appellant on that night on their way to the scene of crime, their respective evidence was unreliable because they did not disclose such information to their fellow villagers on arrival at the scene of crime. In this regard, Mr. Sehewa relied on the cases of Magabe Gokoya v. Republic, Criminal Appeal No. 254A of 2010, CAT (unreported) and Marwa Wangiti and Another v. Republic [2002] T.L.R. 39. 5

On another point, Mr. Sehewa pointed out that the appellant had testified in court that on hearing the alarm, he woke up and rushed to the scene of crime, and that he participated in the process of making arrangements to send PWl to hospital, a fact which was not disproved by anyone. That fact, Mr. Sehewa asserted, creates the doubt that PWl, PW2, PW4, and PWS did not correctly identify him. Based on this, he urged the Court to hold that the first and second grounds of appeal have merit and allow them. As regards the third ground of appeal, Mr. Sehewa conceded that the finding of the first appellate judge as regards the conduct of the appellant after the incident (page 80, line 14 to 18) was a mix-up of evidence as neither PW4 nor PWS testified in support of the fact that on that night they traced the appellant at his home. He submitted that the expression at page 80, last paragraph, 14 th to 18 th lines, of the Record of Appeal ought not to have been associated to the appellant, because that statement, which is based on the testimony of PW4 and PWS, was referring to one person known as Omera, and not the appellant. He urged the Court to allow this ground too. 6

The last ground of appeal alleged generally t~at the prosecution did not prove the case against the appellant beyond reasonable doubt. Mr. Sehewa submitted that since the appellant was not correctly identified, it is obvious that the prosecution did not prove the case against the appellant. Thus, he urged the Court to allow this ground too. Over all, Mr. Sehewa invited the Court to allow the appeal, quash the conviction, and set aside the sentence which was meted against the appellant, resulting in the latter's release from prison. On his part, the appellant submitted that he was in full agreement with the learned State Attorney. He requested the Court to favourably consider all the grounds he raised, allow his appeal, and set him free. We wish to begin by appreciating that the grounds of appeal raised in the present case demand the Court's indulgence to re-evaluate and analyze the evidence on which the appellant's conviction was anchored by the trial court, and upheld by the first appellate court. Being aware that this is a second appeal, we need to restate the principle pertaining to the duty of the second appellate court. As often stressed, a second appellate court is required to be very slow in disturbing the concurrent findings of fact of the two courts below 7

unless they completely misapprehended the substance, nature and quality of the evidence, resulting into an unfair conviction - See the cases of Peters v. Sunday Post Ltd. (1958) E.A. 424, Deeemay Daati & 2 Others v. Republic, Criminal Appeal No. 80 of 1994, CAT, and Dikson Elia Nsamba Shapwata and Another v. Republic, Criminal Appeal No. 92 of 2007, CAT, (both unreported). In the case of Peters v. Sunday Post Ltd. (supra) it was held, among other things, that:- "Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusion of the trial judge should stand, this jurisdiction is exercised with caution if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or has plainly gone wrong, the appellate court will not hesitate so to decide. " We seek to be guided by this principle in the circumstances of the present case. We similarly appreciate that the prosecution case in the instant appeal depended wholly on the evidence of visual identification; and that this general assertion principally focuses on the evidence of PW1 and PW2 8

who were the key eye witnesses. In the circumstances, the immediate issue is whether the appellant was correctly identified. We wish to restate the warning the Court made in the case of Waziri Amani v. Republic [1980] T.L.R. 250 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. In that case, the Court laid down the guidelines on which a trial judge or magistrate should direct his/her mind to the circumstances in which the identification by each witness was m_ade. The circumstances may include: • Amount of time the suspect was under observation by the witness. If it was only a fleeting glance as opposed to a few minutes, a judge or magistrate is likely to be more skeptical of the evidence. • Distance between the suspect and the witness; if there was a great distance between the eyewitness and the suspect, the less weight is likely to be given. • Visibility at the time the witness saw the suspect; was it day time or night? If it was during the night, then the source and intensity of such light. 9

• Familiarity; did the witness know the suspect before? Here, the principle of recognition comes into play. Recognition bears a higher probative value than mere identification. • We may add one more aspect touching on obstruction between the suspect and the witness. The court will take into account the general conditions that may have affected the sighting, for instance, whether it was an extremely foggy day, or the sighting took place in a crowded area, or there was a large obstacle obstructing the view. See also the cases of Raymond Francis v. Republic, [1994] T.L.R. 100, and Abu·raham Daniel v. Republic, Criminal Appeal No. 6 of 2007 CAT (unreported). In the present case, the charged offence took place at mid-night. Although PW1 and PW2 said they managed to identify the appellant with the aid of light sourced from a solar lamp, they nevertheless did not explain its intensity. This is important because the light from a solar lamp normally deteriorated as time ticks. In the case of Issa Ngara @ Shuka v. Republic, Criminal Appeal No. 37 of 2005, CAT (unreported), the Court stated that:- 10

11 even in recognition cases where such evidence may be more reliable than identification of a stranger, clear evidence on source of light and its intensity is of paramount importance. This is because, as occasionally held, even when the witness is purporting to recognize someone whom he knows, as was the case here, mistakes in recognition of close relatives and friends are often made." [The emphasis is ours]. Likewise, PWl and PW2 testified that the appellant was their neighbour. However, apart from the fact that they did not describe how he was dressed, those two eyewitnesses did not readily name him to the crowd that gathered at the scene of crime in answer to the alarm, or to the police at the time they reported the incident at Musoma Central Police Station. According to PW2 (see page 15, 2 nd paragraph), some of the people who on that night gathered at the scene of crime asked her if she identified any of the bandits, but she responded that she did not identify any. Of course, PWl offered the explanation that he did not name the appellant to the people who gathered at the scene at their home at the earliest possible opportunity for fear of their security, also for the sake of the appellant's safety. He stated that he was skeptical that the angry villagers could have attacked or even killed the appellant. 11

With great respect to PW1, we are not convinced; that explanation is not at all appealing. As the proceedings will bear witness, after the arrival of his fellow villagers, the couple was in safe hands, and secure. Worse more, there is no any explanation why PW1 did not name the appellant to the police, the place at which, again, his safety was guaranteed. The evidence of identification came similarly from PW4 and PWS. As already pointed out, these witnesses testified in common that they met the appellant in the company of three other persons, including one Omera, on their way to the scene of crime, and that after identifying who they were, they hid near the fence off the path to let them pass without noticing their presence. They said they identified the appellant and his team with the aid of moonlight. Nevertheless, PW4 and PWS did not readily inform their fellow villagers on arrival at the scene of crime that they saw the appellant, Omera and two other persons walking away from the direction of the scene of crime. We are similarly concerned with the appellant's testimony that PW4 and PWS had grudges against him because before the happening of charged incident, the formers' herds of cattle strayed into his farm and he had a case with them. PW4 and PWS were unhappy and pledged to teach 12

him a lesson. The appellant asserted that could be that is why they lied to the court that they identified him, hence his conviction that those were not witnesses of truth. It is a trite principle of law that the accused's defence need not be truthful, and that it is enough if it raises a reasonable doubt. It follows that courts below ought to have considered the appellant's contention that PW4 and PWS were not witnesses of truth because they did not readily inform their fellow villagers that they met him on their way to the scene of crime, unless there were cogent reasons. This is because, as was asserted by the appellant, could be they did not name him because they were not sure of the identity of the people they allegedly saw. We find that the appellant's argument. is substantial, and that the courts below ought to have relied on the evidence of PW4 and PWS with great caution, instead of believing them wholesomely as it were. As often emphasized by the Court, the ability to name the appellant at the earliest opportunity is an all-important assurance of the reliability of such witness, in the same way as unexplained delay or complete failure to do so should put a prudent Court to inquiry - See the case of Marwa 13

Wangiti Mwita and Another v. Republic [2002] T.L.R. 39 and Magabe Gokoya v. Republic (supra). We wish to point out as well that much as it is true that the appellant was the couple's neighbour, still mistaken identity cannot be ruled out where evidence of visual identification is marred with doubts. This is the reason why the Court often presses emphasis that this should not be considered in isolation with the pre-requisite requirement that conditions for perfect identification of the suspect are favourable. The justification in that regard was succinctly expressed in the case of Phillipo Rukandiza @ Kichwechembogo v. Republic, Criminal Appeal No. 215 of 1994, CAT (unreported). In that case, the Court expounded that:- "The evidence in every case where visual identification is what is relied on must be subjected to careful 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 every reasonable possibility of error has been dispelled. There could be a mistake in identification notwithstanding the honest belief of a truthful identifying witness. "[The emphasis is ours]. 14

In the present case, the fact that PW1 and PW2 did not name the appellant at the earliest opportunity to their fellow villagers, and subsequently to the police; likewise PW4 and PWS, casts doubts on the appellant's correct identification. Also, because PW1 and PW2 did not explain the intensity of the light with the aid of which they allegedly · identified the appellant; further that the couple did not describe how the appellant was dressed; these factors too add profound doubts on reliability of that evidence. On the basis of the above, we hold that the trial court wrongly anchored appellant's conviction on insufficient evidence of visual identification, and the first appellate court improperly upheld the finding of the trial court that the appellant was correctly identified. Thus, the first and second grounds of appeal have merit and they succeed. Next is the third ground of appeal which alleges that the finding of the judge as regards the conduct of the appellant after the incident (page 80, line 14 to 18) was a mix-up of evidence as neither PW4 nor PWS testified in support of the same. We hasten to say that the complaint is meritorious. 15

The complained of expression in this regard centers on what the first appellate judge said at page 80, last paragraph, particularly the 14 th to 18 th lines. In that paragraph, the judge said::- ''Before leaving this witness there are two matters that need to be discussed about his (PW4) evidence. First is his acclaimed active involvement during the night and after the event. He has claimed that during the night after the incident, together with other persons, they went to the house of the appellant to attempt to interrogate him. The appellant didn't cooperate, in fact he came out with a bush knife and they bowed away. However, when he together with PWS were summoned to give evidence for the prosecution, they were resistant and the court had to compel them to give their evidence under warrant of arrest. Despite the compulsion the appellant has not seriously complained about their testimony. His uncontroverted account of events would show that the appellant was suspected right from the night immediately after the event. " The purported statement appears to have been based on the testimony of PW4 appearing at page 24 of the Record of Appeal, second 16

paragraph from the top, 4 th to 14 th lines. PW4 was recorded to have said that:- "Then we all discussed about the bandits and I personally informed my co-alarm men (sic) that I have met those four persons along the way when I was responding to this alarm, let us go to trace them this night and I informed them to be Nyagera (sic) Karegea and Omera, we all left and went to the home of Omera, it was at 03:45 hours and I knocked the door immediately responded to call, and we introduced ourselves to him to be good Samaritans, he refused to come out, but we insisted for him to come out and in fact he came out armed with a ''panga" weapon then we were afraid to interrogate him, left him there and returned to the scene of crime at the home of Issack .... " [The emphasis is ours]. Ipso facto, the above quoted narration refers to Omera, and not the appellant. Quite clearly therefore, in the revelation at page 80, last paragraph, the first appellate judge mistook Omera for the appellant. Thus, first appellant judge misdirected himself in holding that PW4 and his fellow villagers traced the appellant at his home on that night. 17

Similarly, the learned judge misdirected himself on the point that failure by PW1 and PW2 to mention the appellant at the earliest opportunity did not occasion miscarriage of justice [see page 82 first paragraph]. To the contrary, we hold firm that it did. This is because as was stated in Marwa Wangiti Mwita and Another v. Republic (supra), the ability to name the appellant at the earliest opportunity is an all- important assurance of the reliability of such witness, in the same way as unexplained delay or complete failure to do so should put a prudent court to inquiry. In the circumstances of the present case, the hesitation to mention appellant connoted that they did not properly identify him; as is the case, he has suffered an imprisonment. Thus, it cannot be validly accepted that it did not occasion injustice. The totality of this account justified the intervention of the Court as we endeavor to do. The last ground avers generally that the prosecution did not prove the case against the appellant beyond reasonable doubt. Given the pit-falls we have explained herein regarding unreliability of the evidence of visual identification from PW1, PW2, PW4 and PWS which was the sole evidence in this case, we agree with both Mr. Sehewa and the 18

., appellant that the prosecution did not prove the case against the appellant beyond the required standard. Thus we allow this ground too. For reasons we have attempted to give we are allow the appeal, quash conviction, and set aside the sentence. We order the appellant's immediate release from prison unless he may be continually held for some other lawful cause. Order accordingly. DATED at MWANZA this 12 th day of December, 2017. B. M. LUANDA JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL R.K.MKUYE JUSTICE OF APPEAL I certify that this is a true copy of the original. R EAL 19