Hamisi Makarai vs Republic (Criminal Appeal No. 518 of 2015) [2017] TZCA 941 (13 October 2017)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA CORAM: MJASIRI. J.A.. MMILLA. J.A.. AND LILA. 3.A. CRIMINAL APPEAL NO. 518 OF 2015 HAMISI MAKARAI ........................................................... APPELLANT VERSUS THE REPUBLIC ........................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Songea) (Manento. J.^ dated the 26th day of March, 2003 in Criminal Appeal No. 26 of 2001 JUDGMENT OF THE COURT 10th & 13th October, 2017 MMILLA, JA.: The appellant, Hamisi Makarai, has been behind bars since 7.3.2001, following his conviction after he was found guilty on the charge of robbery with violence contrary to sections 285 and 286 of the Penal Code Cap. 16 of Vol. 1 of the Laws of Tanzania, by the District Court of Songea in Ruvuma Region. In that court, he was charged along with one other person, Patrick Ngongi, who is not part of this appeal. He unsuccessfully

appealed to the High Court of Tanzania at Songea, hence this second appeal to the Court. The complainant in this case was Mary Mhagama, a teacher by profession who testified as PW2. She was living at Liganga village within the District of Songea in a house at which she also had a shop. Her family members included PW4 Godfrey Mhagama who was her son, PW1 Annet Mbilinyi, her shop attendant, and PW3 Emmanuel Mkoma, whose relationship with her was not disclosed. On 27.1.2000 at about 02:00 hours, bandits invaded PW2's house. Present in that house on that night were PW1, PW3 and PW4. PW2 was not at home as she was in Morogoro where she was attending a seminar. The facts showed that the bandits gained entry into the house after breaking the main door. PW1 was the first to come face to face with the bandits, and she identified the appellant among the bandits with the aid of light from a lamp which was in that house. They commanded her to give them money, but she did not readily obey the orders and sneaked out of the house. She raised alarm and attempted to run away. Unfortunately, she was apprehended, beaten up, and returned into the house. The assault 2

they perpetrated forced her to yield, she gave them T.shs 13,000/=. After stealing several properties in that house, they ordered her to open the shop. Like before, she did not readily comply. In consequence, they smashed the door using a big stone, they entered in the shop, and began looting goods therefrom, after which they fled. Meanwhile, their fellow villagers responded to the alarm and converged at the scene of crime. Also, the police were informed about the incident and visited the place. Among other things, PW1 named to them the appellant as being one of the bandits. As already pointed out, PW3 was also at the house during the incident. His side of the story was that he was assaulted by the appellant whom he identified with the aid of moon light, and that the appellant was their neighbour and in the course of the fracas, he called the appellant by name. Equally significant was the account given by PW2 who, as aforesaid, was the owner of the shop, the subject of banditry. She received information about that incident on 28.1.2000 from PW1 and hurriedly left Morogoro for Songea. On arrival at home, she rushed to Songea 3

Government Hospital at which PW1 and PW3 were hospitalized following the injuries they sustained. PW1 and PW3 gave her details of the occurrence, and hints on who were the perpetrators of that crime. Subsequently, she went to the police, and later they accompanied her to her home. On inspecting the house, it was found that the bandits stole several properties in her sleeping room, including clothes for own use; and also several goods from her shop. Then of course, the appellant was in custody. The police continued with investigation. According to PW2, the police instructed her to travel to Mbinga in order to assist them to identify the stolen properties in case they recovered any, particularly clothes. She obliged. When she was in Mbinga, she and the police recovered one kitenge from Asia w/o Komba. That woman told them that she was given that cloth by her husband one Patrick Ngongi who was then in police custody in connection with the same incident (the second accused before the trial court). Other clothes were recovered from the house of second wife of the said Patrick Ngongi, whose name was not disclosed.

The case was investigated by PW5 D/C Wilson. He said he was one of the policemen who, on receiving information about that incident, rushed to the scene of crime that same night. They found PW1 and PW3 who had sustained injuries, and inspected the scene of crime. They noticed that the bandits gained entry in the house by breaking the doors, that of the main house and the shop. They found some of the goods scattered on the floor, and were informed that several other goods were stolen from PW2's sleeping room. PW1 and PW3 named the appellant to be amongst the bandits who executed the said robbery, and explained to them where the appellant's house was. They rushed to the appellant's house the same night and found him alone. They searched the house but did not find anything connected to the robbery. They nevertheless arrested him. Meanwhile, the victims of the robbery were sent to hospital for treatment. Later on, the appellant and one other person were charged with the offence of robbery with violence as it were. In his defence, the appellant protested his innocence. He told the trial court that on the night of the incident, he was throughout at his home. He attributed his being named by the victims of the robbery to the grudges which existed between him and PW3 following a quarrel over a woman.

The appellant, who appeared in person and was not defended, filed a four point memorandum of appeal as follows; one that, he was not correctly identified; two that, his conviction was based on uncorroborated evidence of PW1, PW3 and PW4 all of whom were relatives; three that, the police ought to have organized an identification parade; and four, that the case was not proved against him beyond reasonable doubt. The respondent Republic enjoyed the services of Mr. Shaban Mwegole, assisted by Ms Amina Mawoko, learned State Attorneys. They hastily informed the Court that they were opposing the appeal. At the commencement of hearing, the appellant chose for the Republic to submit first, undertaking to respond later, if necessary. The Republic's submission was marshaled by Ms Mawoko. She sought permission to discuss the first three grounds together on account of their relatedness. Ms Mawoko submitted that the appellant was correctly identified at the scene of crime by two prosecution eye witnesses namely, PW1 and PW3. She stated that PW1 identified the appellant after he and the other bandits entered in the house with the aid of light sourced from a lamp. She

added that on noticing that the light was not bright, the bandits increased the wick, thus making the light brighter, thus affording PW1 a better chance to clearly see her assailants. PW1 was eloquent that she very well identified the appellant because she had known him before because he was their close neighbour. Ms Mawoko submitted similarly that there was a time when the appellant went outside, whereupon PW3 called him by name. PW3 was recorded to have said "Hamisi, why are you killing us?" Ms Mawoko contended therefore that by calling the appellant by name, PW3 was sure of the person he saw, and that he managed to do so with the aid of the moon light which obtained that night. Ms Mawoko submitted, it was much easier for PW3 to identify the appellant because he was their neighbour, a fact which was admitted by the appellant himself in his defence. Relying on the case of Chalamanda Kauteme v. Republic, Criminal Appeal No. 295 of 2009, CAT (unreported), Ms Mawoko contended that the appellant was identified beyond qualm. On the question of identification parade, Ms Mawoko submitted that because PW1 and PW3 were persons who had known the appellant before, the police officers properly abstained from organizing the identification

parade. In view of this submission, Ms Mawoko urged the Court to dismiss the first three grounds of appeal. Concerning the fourth ground of appeal, basing on the fact that the appellant was correctly identified by PW1 and PW3, Ms Mawoko submitted that the prosecution proved the case against him beyond reasonable doubt. Ms Mawoko added one more point that on the very night of the incident, PW1 and PW3 disclosed to the people immediately on arrival at the scene of crime that the appellant was amongst the bandits. Upon that information, the Village Executive Officer (the VEO), and several other persons, including PW4, went to the appellants house and called him to come out. However, despite the fact that the VEO properly introduced himself to him, the appellant refused to comply (unfortunately the VEO did not testify in court). It was only after the VEO had threatened to break the door, Ms Mawoko went on to submit, that the appellant opened the door. The learned State Attorney submitted that the conduct attracted the inference that the appellant refused to open the door because of his guilty conscious. In the end, she pressed the Court to dismiss the appeal in its entirety.

The Court probed the learned State Attorney to clarify a couple of points, including whether or not the appellant's defence of alibi was considered by both lower courts; and also whether his defence that he was named because there existed grudges between him and PW3 over a woman, was considered. Ms Mawoko's response was that the two courts below did not address those two points. She submitted however, that given the strengths of the evidence of visual identification, the allegation that he was at his home throughout that night, also that he was named because there existed grudges between him and PW3, lacked merit. Also, Ms Mawoko went on to submit, since the appellant did not cross examine PW3 on the question of grudges, that line of defence, she submitted, was an afterthought. She reiterated her prayer for the Court to dismiss the appeal in its entirety. On his part, the appellant maintained that the condition at the scene of crime was not ideal for correct identification. He also insisted that he was named by PW3 because there existed grudges between him and PW3 following a quarrel over a woman. He urged the Court to uphold the grounds of appeal he raised, and the submission he offered, thenceforth allow his appeal.

We have carefully studied the Record of Appeal, scrutinized the memorandum thereof, and earnestly considered the oral submission of both the appellant and the learned State Attorney. To start with, we agree with Ms Mawoko on two things; firstly that it is convenient to discuss together the first three grounds; and also that the case depended entirely on the acceptability or otherwise of the evidence of PW1 and PW3 on visual identification. We will begin by restating the principle of law in relation to evidence of that nature or class. As often stressed by the Court in many cases, evidence of visual identification is of the weakest kind and most unreliable. As such, no court should act on such kind of evidence unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that it is absolutely watertight - See the cases of Waziri Amani v. Republic [1980] T.L.R. 250, Chalamanda Kauteme v. Republic (supra), Ally Fumito v. Republic, Criminal Appeal No. 36 of 2008, CAT, and Moris Jacob @ Ombee & another v. Republic, Criminal Appeal No 220 of 2012, CAT (both unreported). Likewise, it is important to emphasize that in weighing such evidence, the courts have to remain focused on whether or not the conditions at the scene of crime favoured correct identification - See the / 10

cases of Rajabu s/o Issa Ngure v. Republic, Criminal Appeal No. 164 of 2013, CAT (unreported), and Raymond Francis v. Republic [1994] T.L.R. 100. In the present case, the trial and the first appellate courts were satisfied that PW1 Annet Mbilinyi correctly identified the appellant with the aid of the light which was sourced from the lamp which was in the house, and also that PW3 Emmanuel Mkoma identified the latter with the aid of moon light outside the house. The two courts below considered also the fact that both witnesses had known the appellant before because he was their neighbour. With great respect, we agree with that finding. As the record shows, PW1 testified that at the time the bandits entered in the house, there was a lamp with its light on, and that because the light was not very bright, the bandits increased the wick in order to improve the light to enable them to see clearly. That in turn, enabled her to clearly identify the appellant. With that brilliant account, we think that such evidence goes to show that the condition in the house was ideal for correct identification. Again, after the drama moved outside, there was bright moon light which enabled ii

PW3 to clearly identify the appellant. As reflected at page 8 of the Record of Appeal, PW3 even called the appellant by name. He was recorded to have said that "Hamisi mbona unaniua?", meaning "Hamisi why are you killing me?" This again, fortifies the fact that the condition outside the house was equally ideal for correct identification. Apart from the fact of bright light from those two sources, both PW1 and PW3 were categorical that they had known the appellant before because he was their close neighbour. This aspect was admitted by the appellant at the time he asserted in his defence that PW3 named him because they had quarreled before over a woman. We hold firm that the fact that they had known the appellant before minimized the possibility of mistaking him for someone else. Similarly, at the time the neighbours and PW5 who was a policeman arrived at the scene of crime, PW1 and PW3 readily named the appellant as having been among the bandits. As PW4 and PW5 testified, a band of people, including PW4 and PW5, went to the appellant's home on that same night and arrested him. It is worth pointing out that at the time the group of people went to his home, the appellant refused to open the door even after the VEO had pleaded with him that he was leading the group. 12

We agree with Ms Mawoko that the conduct attracts an inference that he had a guilty conscious. As already pointed out, PW1 and PW3 immediately named the appellant to the people who gathered there as having been among the robbers. We wish to stress that PW l's and PW3's ability to name the appellant at the earliest opportunity was an all-important assurance of their reliability, 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 Wangiti Mwita and Another v. Republic [2002] T.L.R. 39. For reasons we have given, we find and hold that the trial and the first appellate courts rightly believed and relied on the evidence of visual identification of those two witnesses. One of the appellant's complaint was that his conviction was based on uncorroborated evidence of PW1, PW3 and PW4 all of whom were relatives. We hasten to say that this assertion is not well founded. We are saying so because, as often stated, it is common knowledge that in any trial, evidence is forthcoming from witnesses who directly or 13

circumstantially witnessed the incident taking place, provided that they may be found to be credible witnesses - See the cases of Esio Nyomolelo & 2 Others v. Republic, Criminal Appeal No. 49 of 1995, CAT and P. Taray v. Republic, Criminal Appeal No. 216 of 1994, CAT (both unreported). In the case of P. Taray v. Republic, the Court stated that:- "We wish to say at the outset that it is o f course, not the law that whenever relatives testify to any event they should not be believed unless there is also evidence o f a non-relative corroborating their story. While the possibility that relatives may choose to team up and untruthfully promote a certain version o f events, it must be born in mind (that), the evidence o f each o f them must be considered on merit, as should also the totality o f the story told by them. The veracity o f their story must be considered and gaugedjudiciously just like the evidence o f no-relatives. It may be necessary, in given circumstances, for a trial judge or magistrate to indicate his awareness o f the possibility of relatives having a common interest to promote and serve, but that is not to say a conviction based on such evidence cannot hold unless there is supporting evidence by a non- relative. "

Since we perceive that PW1 and PW3 were credible and reliable witnesses, and that they correctly identified the appellant, the complaint that their evidence was wrongly relied upon is baseless. The appellant complained as well that because the police officers did not organize an identification parade to let the two prosecution eye witnesses to identify their attackers, it cannot be said that he was properly identified. As already pointed out herein, Ms Mawoko said there was no need for an identification parade in the circumstances of this case because the two prosecution eye witnesses had known the appellant before. We absolutely agree with her. The evidence of PW1 and PW3 that they had known the appellant before was unassailed; and as already pointed out the appellant admitted this fact in his defence in the course of trying to explain that he was named by PW3 because there existed grudges between them following a quarrel over a woman. Since the purpose of an identification parade is inter alia, to enable a witness to identify his/her assailant whom he/she has not seen or known before the incident, it follows that there was no need of 15

conducting an identification parade in the circumstances of this case - See the case of Joel Watson @ Ras v. Republic, Criminal Appeal No, 143 of 2010, CAT (unreported). It was held in that case that:- “The purpose of an identification parade is inter alia , to enable a witness identify his/her assailant whom he/she has not seen or known before the incident (See Abdul Farijalah and Another v. Republic, Criminal Appeal No. 99 of 2008 ; John Paulo @ Shida and Another v. Republic, Criminal Appeal No. 335 of 2009 (both unreported). Such identification conducted by the Police is not substantive evidence (See Eailian Aidan Fungo and Another v. Republic, Criminal Appeal No. 278 of 2008; Imamu Selemani Msovu and Another v. Republic, Criminal Appeal No. 306 o f 2010 (Both unreported). A s provided for under section 60 (1) o f the Criminal Procedure Act (the CPA), an identification parade may be conducted during the investigation stage for the purpose of ascertaining whether a witness can identify the suspect of the crime. ’’ [Emphasis provided]. For reasons we have aptly assigned, grounds 1, 2, and 3 lack merit, we accordingly dismiss them. 16

We raised two points which featured in the appellant's defence but both lower courts did not adequately address them. One was in respect of the defence of alibi, and the other one was in respect of his contention that he was named because of the grudges PW3 had against him. Before we proceed to discuss these two points, we would like to put one aspect clear concerning the duty of the second appellate Court in as far as evaluation of evidence is concerned. We wish to restate the principle that a second appellate court is required to be very slow in disturbing the concurrent findings of fact of the two courts below unless they completely misapprehended the substance, nature and quality of the evidence resulting into an unfair conviction. Where that is the case, the second appellate court is entitled to look at the relevant evidence and make its own findings of fact - See the cases of Peters v. Sunday Post Ltd. (1958) E.A. 424, Salum Muhando v. Republic (1993) T.L.R. 170. In the present case, like Ms Mawoko did, we noted that both courts below did not discuss those two aspects. That was erroneous. On the basis of the principle we have restated above, we are entitled to look at the 17

relevant evidence and make our own findings of fact. We will begin with the point touching on the aspect of alibi. The record does not show if the appellant had furnished a notice to inform the prosecution side and the trial court that he was going to raise the defence of alibi. However, it is certain that even where the accused does not do so, still, on the wording of section 194 (6) of the Criminal Procedure Act Cap. 20 of the Revised Edition, 2002, the trial court is required to consider it, though it may not accord it any weight. That provision states that:- "(6) I f the accused raises a defence o f alibi without having first furnished the prosecution pursuant to this section, the court may in its discretion , accord no weight o f any kind to the defence." See the case of Charles Samson v. Republic (1990) T.L.R. 39 and Leonard Mwanashoka v, Republic, Criminal Appeal No. 226 of 2014, CAT (unreported) in which the Court restated that the trial courts ought to have considered the defences of alibi, but had the discretion, on the basis of the advanced explanations, to accord weight or disregard the same. 18

In the present case, we agree with Ms Mawoko that on the basis of our finding that the appellant was correctly identified by PW1 and PW3 to have been at the scene of crime, therefore was among the perpetrators of that crime, the defence of alibi he raised was nothing but an attempt to evade justice. We find that the ground was baseless. The second point too, that he was named because of the grudge between him and PW3 was equally baseless because of the same reason that he was correctly identified by PW1 and PW3 to have been at the scene of crime. We add here that this was an afterthought because he did not even cross examine PW3 on the point - See the case of Cyprian Athanas Kibogoyo v Republic, Criminal Appeal No. 88 of 1992, CAT (unreported) in which the Court said that it is trite law that failure to cross-examine a witness on an important matter ordinarily implies the acceptance of the truth of the witness's evidence. In the circumstances, this ground too was baseless. The fourth ground was that the prosecution did not prove the case against him beyond doubt. Having repeatedly said that the appellant was correctly identified by PW1 and PW3, we hold firm that this ground too is baseless. We accordingly dismiss it. 19

i a nut shell, for reasons we have herein assigned we find that the acks merit and we dismiss it in its entirety. DATED at IRINGA this 12th day of October, 2017. S. MJASIRI JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL S. A. LILA JUSTICE OF APPEAL I certify that this is a true copy of the original. JL . j i- ' • > • " . - r A E.F.\FUSSI DEPUTY REGISTRAR COURT OFvAPPEAL w • /, .. 20