Nchagwa Matokole @ Lante vs Republic (Criminal Appeal No. 315 of 2013) [2014] TZCA 212 (21 October 2014)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: MSOFFE. 3. A.. ORIYO. 3. A.. And MMILLA, 3. A. ) CRIMINAL APPEAL NO. 315 OF 2013 NCHAGWA MATOKOLE @ LANTE .............................................. APPELLANT VERSUS THE REPUBLIC.................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Mruma, 3.) dated 31s t day of May, 2013 in Criminal Appeal No. 27 of 2007 JUDGMENT OF THE COURT 17th & 21st October, 2014 ORIYO, 3.A.: Nchagwa Matokole @ Lante, lost his appeal to the High Court against a conviction of Armed Robbery that was tried in the District Court of Mwanza at Mwanza. Still aggrieved he has come to this Court on a second appeal. i

In the District Court, the appellant was arraigned with two others on one count of armed robbery contrary to section 287 A of the Penal Code, Cap 16 R.E. 2002. In terms of the charge sheet, the robbery was committed against one Helena Felician, (PW1), on 7/1/2005, at about 23:00 hours at Nakabungo area, Mwanza. Upon conviction, the appellant was sentenced to thirty years imprisonment and three strokes of the cane. The facts as gathered from the record are as follows. On the material date and time, PW1 was on her way back home from the office, when she met the appellant carrying a machete and a torch. In a move by the appellant to attack PW1, a struggle of about thirty minutes ensued, whereby the appellant cut PW1 with the machete on her right hand. Having disabled PW1 by the cut, coupled with an injured knee when both PW1 and the appellant fell down, the latter snatched and ran away with the handbag of PW1 in which she carried a mobile phone (make "Bird"), shs. 350,000/= cash money, her identity card and a phone charger. The appellant sustained some injuries as well in the course of the struggle. The incident was reported to the police station where a PF 3 was issued to PW1. 2

The appellant appeared in person at the hearing of the appeal whereas the respondent Republic was represented by Ms Bibiana Kileo, learned State Attorney. In his memorandum of appeal, which understandably was inelegantly drafted, the appellant raised several complaints which basically challenged the evidence of visual identification by PW1 at the scene due to inadequate light. The learned State Attorney submitted that PW1 identified the appellant by the use of a bulb light and PW1 explained in her testimony that during the struggle that ensued between the two, she successfully held the appellant tightly and pulled him close to an electric light from a neighbouring house which enabled her to visually identify him. She further submitted that during the scuffle, the two were brought into close proximity with each other for about thirty minutes, which was sufficient to identify the appellant, who she knew before the incident. In conclusion, the learned State Attorney, submitted that she supported the conviction and sentence contending that the visual identification evidence at the scene was watertight. She referred us to the

Court's decision in Emmanuel Luka and Two Others vs The Republic, Criminal Appeal No. 325 of 2010 (unreported). In response, the appellant stated that the evidence of PW1 was incredible in the circumstances of the case. He expressed doubts that PW1 genuinely identified him at the scene. He questioned that, if true, then why did PW1 not name or describe his appearance to the police or to her neighbours, at the earliest opportunity; which was not done in this case. It is settled law that in a criminal case where determination depends essentially on identification evidence, conditions favouring a correct identification is of utmost importance, (See Waziri Amani vs Republic [1980] TLR 250; Raymond Frances vs Republic [1994] TLR 100 at 103; Selemani Rashid @ Daha vs Republic, Criminal Appeal No. 190 of 2010, Chacha Mwita and 2 Others vs Republic, Criminal Appeal No. 302 of 2013, (both unreported). In the case of Waziri Amani, this Court, in order to underscore the pertinent features of visual identification, stated the following:-

"...the first point we wish to make is an elementary one and this is that the evidence of visual identification ....is the weakest and most unreliable. It follows therefore, that no court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight.... The extent to which the possibility o f the danger of an affront to justice ... occurring depends entirely on the manner and care to which the trial judge approaches ... although no hard and fast rules can be laid down...it must be shown on the record a careful and considered analysis of all surrounding circumstances of crime being tried...." The Court went further and laid down certain factors to be taken into account by a trial court in order to satisfy itself on whether such evidence is watertight. These factors include the following

the time the witness had the accused under observation;

the distance at which he observed him; the conditions in which such observation occurred; if it was day or night time; whether there was good or poor lighting at the scene; whether the witness knew or had seen the accused before or not." We have reproduced the above factors at length to underscore the fact that they are not exhaustive and a trial court is under an obligation to objectively consider the peculiar circumstances of each case and make its own decision. Reverting to the circumstances on record in the present case and which were not controverted by the appellant in the trial court, the following emerge PW1 was very clear in her testimony that it was the appellant who robbed her, armed with a machete which he used to inflict an injury upon her. PW1 knew the appellant before the incident. 6

PW1 gave a vivid account on how the appellant attacked her and in the course of the scuffle that ensued, she was able to push him to the electric light from a neighouring house. The scuffle took about thirty minutes. At the end of it all the appellant managed to rob PW1 of her handbag and the contents thereof. The testimony of PW1 was corroborated by PW2 and PW3 who testified that it was the appellant who sold the mobile phone of PW1 to PW3. PW l's testimony was further corroborated by PW6 a police officer who investigated the complaint by PW1 and arrested the appellant who was found sleeping under a bed armed with a panga. PW6 also testified to have found the appellant with a wound as reported by PW1 and he had in his custody, shs. 85,000/=, allegedly being the balance of the money robbed from PW1. Taking into account the above factors and particularly the physical close proximity during the struggle/fight between PW1 and the appellant and the time of about thirty minutes they were together during the fight,

we are of the considered view that PW1 was in a position to identify the appellant without any doubt. Having found the visual identification of the appellant at the scene to be impeccable, it eliminated all possibilities of mistaken identity. We therefore find no reason to interfere with the concurrent findings of the courts below. In the event, the appeal is dismissed in its entirety. DATED at MWANZA this 20th day of October, 2014. J. H. MSOFFE JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL I certify that this is a true copy of the original. CHIEF REGISTRAR COURT OF APPEAL