Nyangusi Ndioto vs Republic (Criminal Appeal No. 44 of 2014) [2014] TZCA 2158 (16 June 2014)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: KIMARO.J.A.. MANDIA.J.A.. and JUMA.J.A.^ CRIMINAL APPEAL NO. 44 OF 2014 NYANGUSI NDIOTO .......................................................... APPELLANT VERSUS THE REPUBLIC................................................................ RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Arusha) ( Sambo. J.^ dated 3rd day of May, 2012 in Criminal Appeal No.30 of 2011 JUDGMENT OF THE COURT 9th & 16 June, 2014 KIMARO. 3.A.: Nyangusi Ndioto was convicted by the District Court of Arusha at Arusha for the offence of armed robbery and was sentenced to an imprisonment term for thirty years. The High Court in its appellate jurisdiction sustained the conviction and the sentence. Still aggrieved by the conviction and the sentence, the appellant filed six grounds of appeal challenging the propriety of his conviction and the sentence. His grounds of appeal are non-citation of the provision of the law

under which his conviction was based, failure to evaluate the evidence properly, evidence of his identification at the scene of crime was not water tight, contradiction in the prosecution evidence and failure by the trial court to afford him the opportunity to declare his defence witness a hostile witness. At the hearing of the appeal the appellant appeared in person. Mr. Khalili Nuda, learned State Attorney represented the respondent/Republic. The appellant opted to elaborate his grounds of appeal after the learned State Attorney responded to them. Before going to the submissions in support of the appeal and against the appeal we feel bound to give the background to the appellant's conviction. On the night of 7th February, 2005 at around 02.05 a.m. the house of Stephen Nelson (PWl-the complainant) was broken into by about six bandits. PW1 heard the bandits when they started breaking the door by kicking it. Bravely he tried to prevent them from entering his house by holding the door from inside. While he was doing that, his wife shouted for help indicating that they were invaded by thieves. In the cause of that struggle PW1 was overpowered and the appellant hit him with a hammer and broke his left arm. PW l's further testimony was that he too, also

inflicted injuries on the appellant but he could not remember which arm he injured. PW1 consistently told the court that he identified only the appellant who lives at a village known as Saitabau and he had a butcher business at Ngaramtoni where PW1 also had a stationery business nearby. PW1 and the appellant used to meet almost daily. The appellant and his colleagues had weapons namely "pangas, simes" and hammers. What the appellant and the other culprits managed to take away from the complainant was a bag full of clothes and cash T. shillings 150,000/=. The evidence of PW1 was corroborated by Charles Antony (PW2) and Emmanuel Mangwela (PW3) who responded to the alarm raised from the house of PW1 seeking for assistance because of the invasion by the appellant and the other culprits. Both witnesses corroborated the evidence of PW1 that they heard an alarm being raised from the house of PW1. They responded to the alarm. Upon reaching the house of PW1 they saw four people standing outside but they ran away upon seeing them. The witnesses did not identify any of the culprits who were outside the house. Both said two other persons came from the house of the complainant and they identified them. That was the appellant and another person called Frank Velo who was jointly charged with the appellant but was acquitted.

The witnesses said it was the bright electric light which assisted them to identify the appellant and his colleague and also they were known to them before the incident. No. F. 4068 D/C Nichoulaus attended the complainant when he reported the matter at Ngaramtoni Police post. He also made a follow up of the appellant whom he arrested after he saw him with an injury on his arm. Paul Abdiel Kissanga (PW5) was a medical doctor who treated PW1 for the injuries he sustained and he filled the PF3 indicating the nature of the injuries which PW1 suffered. Form PF3 was admitted in court as exhibit PI. In his defence the appellant denied commission of the offence. He however admitted living in the village that was mentioned by the complainant. He also admitted having been injured but he denied that he sustained the injuries from the struggle that ensured between himself and PW1 during the commission of the offence at the complainant's house. He said it was another person who cut him with a knife and the matter was reported to the police. The appellant summoned Edward Ndiyogi (the person who the appellant said he cut him with a knife) but he denied to have cut the appellant. 4

On the basis of that evidence, the trial court was satisfied that the offence was proved on the standard required and hence the conviction and the sentence by the trial court which the High Court sustained. Coming now to the appeal before the Court, the learned State Attorney supported the conviction and the sentence. He argued the grounds generally. Starting with the issue of identification, the learned State Attorney submitted that although the offence was committed at night the appellant was sufficiently identified. The factors he indicated to support him on this point is the struggle that ensued between the appellant and PW1 as PW1 prevented the appellant from having access to the house by holding the door from inside and the injuries suffered by both the appellant and the complainant in that struggle. He said the injuries suffered by the appellant is what led to the arrest of the appellant. According to the evidence of the complainant, said the learned State Attorney, they were neighbours at their business places. Both had businesses at Ngaramtoni. The appellant had a butcher business while the complainant had a stationery business. They met each other frequently. There was also evidence that there was bright electric light. He said the evidence of identification was corroborated by PW2 and PW3 who also

identified the appellant because he was known to them before and there was bright electric light. He cited the case of Ally Rajabu & 4 others Vs. Republic Criminal Appeal No. 43 of 2012 (unreported) to augment his submission on this point. He said the complainant did also mention the name of the appellant to the police when he reported the incident and that the appellant was a person whom he recognized long before the robbery was committed. The learned State Attorney referred the Court to the case of Mussa Mustapha Kusa & others Vs. Republic Criminal Appeal No. 51 of 2010 (unreported). Regarding the first ground of appeal that the conviction and the sentence does not show the provision of the law under which it was based, the learned State Attorney said it has no basis because the judgment says clearly under which provision the offence which the appellant was charged with falls. As for the ground that the appellant was convicted on evidence which was not properly evaluated, the learned State Attorney said the ground has no merit because the evidence was properly evaluated before the appellant was convicted.

The appellant also complained of contradictions in the evidence of the prosecution. Responding to this ground, the learned State Attorney said the contradiction is very minor and does not go to the root of the case so as to affect the conviction. As for the sixth ground of appeal the learned State Attorney said it was not the duty of the court to declare the witness of the appellant hostile. The obligation to declare the witness hostile lay on the appellant himself. He prayed that the appeal be dismissed. Responding to the submission made by the learned State Attorney, the appellant insisted that the evidence of his identification at the scene of crime was not water-tight. According to him, the offence was committed at night and the bandits were armed. Under those circumstances it is not likely for the complainant to try to prevent his access to the house because he would be threatened of losing his life. He said the complainant did not even give detailed information about the brightness of the light and the distance from which he was able to identify him. Even the description of his attire was general. Giving an elaboration on the contradictions found in the prosecution evidence the appellant said whereas PW2 said the alarm that was raised from the house of the complainant came from a woman,

PW3 said it was from the complainant himself. He said such contradiction affected the prosecution evidence. He prayed that the appeal be allowed. We have thoroughly gone through the record of appeal and the submissions made by the respective parties in this appeal. We agree with the learned State Attorney that the appeal by the appellant has no merit. Starting with the first ground of appeal, the contention by the appellant that the judgment did not cite the provision of the law under which the appellant was convicted and sentenced is not true. The charge sheet at page 1 of the record of appeal shows that the appellant was charged with armed robbery contrary to section 287A of the Penal Code as amended by Act No. 4 of 2004 as rectified by GN. No. 269 of 2004. At page 38 of the record the trial magistrate cited this provision indicating the charge the appellant was facing. At page 45 the trial magistrate finished the judgment by saying: "He is therefore convicted as charged..." The judgment itself defeats this ground of appeal. It has no merit. As for the identification of the appellant we are satisfied that we have no reason for faulting the learned judge on first appeal. The record of appeal at page 54 shows how the learned judge dealt with the issue of identification. He said there was evidence by the prosecution witnesses

that there was electricity light, PW1 and the appellant had a struggle in the process of entering into the house of the complainant and the appellant was well known to the complainant. The evidence of the complainant is corroborated by that of PW2 and PW3 on how they identified the complainant. The learned judge held further that the complainant and the other prosecution witnesses disclosed the name of the appellant at the earliest opportunity. In the case of Mussa Mustapha Kusa Vs. Republic supra, the court held that where a witness mentions the name of the offender at an earliest opportunity it is an assurance that the identification made by the witness is not a mistaken one. The learned judge on first appeal said the witnesses went to the extent of describing his attire at the time of the commission of the offence. The analysis of the learned judge on first appeal is supported by the record of appeal at pages 14 (evidence of the complainant PW1), 16 (evidence of PW2) and 18 (evidence of PW3). Under such circumstances we do not have any reason to fault the finding of the learned judge on first appeal. What we have said in respect of the ground of appeal on identification answers also ground 2 of the appeal where the appellant contended that the evidence was not properly analyzed. In this respect grounds 2 and 3 of the appeal have no merit.

As for ground 4 where the appellant complained of contradictions in the evidence of the prosecution witnesses, we agree with the learned State Attorney that the contradiction was very minor and it did not go to the root of the prosecution case. The only contradiction in the prosecution witnesses was in the evidence of PW2 and PW3 and it was on who was raising the alarm. PW2 said it was a woman while PW3 said it was the complainant. That contradiction did not water down the evidence of the commission of the offence and the identification of the appellant at the scene of the crime. This ground of appeal also has no merit. Ground five of the appeal is a repetition of ground three on the identification of the appellant. We have already given our finding on this ground. In the last ground of appeal the complaint by the appellant was that he was not given an opportunity to declare his witness hostile. Our considered opinion is that this ground has been raised out of ignorance of the law. According to the appellant he summoned the witness (Edward Ndiyogi- DW3) to dispute the evidence of PW1 that they had a struggle with the complainant and in that process the complainant injured him. But when the witness gave evidence (page 34 of the record of appeal) he

denied to have inflicted any injury on the appellant. Since the witness was summoned to testify on behalf of the appellant and testified against him, it was not the duty of the court to declare the witness hostile. It was the duty of the appellant to move the court through the appropriate procedure of declaring a witness hostile. Since the trial court was not moved, the appellant cannot blame it for a fault to which it was not a party. Moreover, this was not even raised as a ground of appeal in the High Court. Having analyzed the grounds of appeal, the submissions and given the findings of the Court on the said grounds, we are satisfied that the appeal has no merit and we dismiss it in its entirety. DATED at ARUSHA this 11th day of June, 2014. N.P. KIMARO JUSTICE OF APPEAL W.S. MANDIA