Riziki Method @ Mapanki vs Republic (Criminal Appeal No. 83 of 2014) [2014] TZCA 2167 (27 June 2014)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA CRIMINAL APPEAL NO. 83 OF 2014 ( CORAM: MSOFFE. 3.A.. KAIJAGE. J.A.. And MMILLA. J.A.^ RIZIKI METHOD MYUMBO @ MAPANKI........................................APPELLANT VERSUS THE REPUBLIC.........................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Iringa) (Werema. J.> dated the 5th day of May, 2007 in (DO Criminal Appeal No. 23 of 2006 JUDGMENT OF THE COURT 26th & 27th June, 2014 MSOFFE, J.A.: The High Court (Werema, J.) upheld the conviction of the Appellant for armed robbery by the District Court of Iringa (Kagine, HDM) which was grounded on three main aspects of the evidence on record. One, that the Appellant was identified at the scene of crime. Two, the doctrine of recent possession. Three, the cautioned statement. In this appeal the Appellant has listed a total number of eight grounds of complaint. In a nutshell however, as correctly pointed out by Ms. Lilian Ngilangwa, learned State Attorney for the respondent Republic,

who argued in support of the appeal, they all boil down to three major grounds. First, there was no enough evidence of identification. Two, the doctrine of recent possession was not available in the case. Third, the cautioned statement was improperly admitted in evidence. Briefly, the evidence as it unfolded at the trial was that on 21/12/2004 at about 7.30 p.m. PW1 Zawadi Mgongolwa, PW2 Lawrence Myovela, PW3 Tumaini Mkingani and PW5 Evarist Myovela were ambushed by armed bandits. Among them PW3 and PW5 alleged to have identified the Appellant. PW3 in particular said he identified the Appellant because, unlike his confederates, he did not camouflage his face. In the process, an assortment of articles belonging to PW1 were stolen. On 28/12/2004 at about 3.15 p.m. the Appellant's room was searched and one big radio AKAI make with its two speakers and a small radio said to be among the stolen items were retrieved therefrom and eventually identified by PW1, PW4 and PW5. On the same day, the Appellant's cautioned statement was recorded by PW8 WP. Detective Sergeant Tumaini. We wish to digress a bit here and state that on 18/8/2005 this statement was produced and admitted in evidence without asking the Appellant whether he had any objection in terms of section 169 (1) of the Criminal Procedure Act (CAP 20 R.E. 2002) whereupon if he had raised objection the prosecution would have been 2

required to discharge its burden under sub-section (3) thereto of satisfying the court that the statement was admissible in evidence. Anyhow, it was essentially on the basis of the above evidence that the Appellant was convicted as aforesaid and sentenced to the statutory thirty years term of imprisonment. We propose to begin with the cautioned statement. As pointed out above, and also as correctly submitted by Ms. Lilian Ngilangwa, the statement“had-no-probative-value-in-the-Gase-becauseJt_wasJntmduced in evidence without complying with the requisite procedure. As it is, assuming that the procedure had been followed and objection taken by the Appellant, then the prosecution would have been required to discharge the burden mandated to it under sub-section (3) above read together with section 27 (2) of the Evidence Act (CAP 6 R.E. 2002). In this regard, since this was not done we are entitled to, and we hereby do, expunge the statement from the record. This brings us to the evidence of visual identification. On this, yet again we are in agreement with Ms. Lilian Ngilangwa that the evidence on record did not establish positively that the Appellant was identified on that fateful night. This was a sudden attack happening, as it was, at night

under circumstances which were not conducive for correct identification. Besides a general assertion by PW1 that there was lig h t" she did not come out clearly and explain the nature of the light, its intensity, etc. PW2 was more forthcoming that it was "electricity light" but, yet again, he did not state whether its intensity was sufficient to allow for correct identification. As already stated, he went on to say that he identified the Appellant because he did not cover his face. With respect, that might have been so. But, in the justice of this case one would have expected him to describe him by his distinctive clothing, marks, etc. In other words, it was not enough for PW2 to say that he identified the Appellant by facial appearance, without more. Furthermore, the witnesses were not forthcoming as to the duration of the incident, the estimated distance between them and the Appellant, etc. Finally, there was no evidence that the Appellant was known to the witnesses prior to the date of incident. In the absence of evidence to the above effect, it cannot be safely said and concluded that the Appellant was identified at the scene of crime on the night in question. Finally, the doctrine of recent possession. This is premised on the evidence that the Appellant was seen with a bag in which were found properties said to have been stolen from PW1 on the material night. Yet

again, the evidence on this point has its own shortcomings. First of all, it is not very clear from the evidence whether the Appellant came into the room with the bag in the presence of the witnesses or whether the witnesses found him in the room with the bag in question. Anyhow, as this Court has held for times without number for the doctrine to apply it must be proved that the property was found with the accused; the property must be positively identified to be that of the complainant; it must be property recently stolen from the complainant; it must relate to the one in the charge sheet; and there must be evidence as to search of the suspect and recovery of the stolen property from him - See Ally Bakari and Pili Bakari v. Republic [1992] TLR 10, Hamis Meure v. Republic [1993] TLR 213, Joseph Mbelwa v. Republic, Criminal Appeal No. 228 of 2010, Shabani Menge and Another v. Republic, Criminal Appeal Nos. 182 and 183 of 2007, John Joseph @ Pimbi v. Republic, Criminal Appeal No. 262 of 2009 (all unrepresented). In this case, no positive and conclusive evidence came from the witnesses, particularly PW1, describing the properties seen with the Appellant. One would have expected evidence of any distinctive marks, receipts, etc. Apparently there was no such evidence. Furthermore, it is in evidence that the police secured a search warrant for searching the

Appellant's room. However, it is also true to say that, like other exhibits in the case, the warrant was produced and admitted in evidence without asking the Appellant whether he had any objection to its production and admission in evidence! This was, no doubt, irregular. On the whole therefore, in view of the above observations the doctrine of recent possession could not be safely invoked in the case. When all is said and done, this appeal has merit. We allow it, quash the conviction and set aside the sentence and the order for compensation. The Appellant is to be released from prison unless lawfully held. DATED at IRINGA this 26th day of June, 2014. J. H. MSOFFE JUSTICE OF APPEAL S. S. KAIJAGE JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL 6