Malio Mteming'ombe and 2 Others vs Republic (Criminal Appeal No. 128 of 2010) [2014] TZCA 2212 (19 May 2014)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: OTHMAN, C.J., RUTAKANGWA, J.A., And MANDIA, J.A. ) CRIMINAL APPEAL NO. 128 OF 2010

1. MALIO MTEMING'OMBE
2. RAIM ALLY
3. SAD I KI YASIN .........•••.•......•••..•••..........••.•.•....•...••.••...•.•. APPELLANTS VERSUS i•HE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mbeya) 16 th & 20 th May, 2014 OTHMAN, C.J.: (Msuya, J.) dated the 21 st day of July, 2009 in Criminal Appeal No. 71 of 2008 JUDGMENT OF THE COURT .., The 1 st , 2 nd and 3 rd appellants, who were respectively, the 2 nd , 1 st and 3 rd accused in the trial court were charged with and convicted by the District Court of Mbarali at Rujewa of the offence of Armed Robbery c/ss. 285 and 286 of the Penal Code, Cap 16 R.E. 2002. Each accused was sentenced to thirty years imprisonment. Aggrieved, they appealed to the High Court (Msuya, J.), which dismissed their appeal. They have now preferred this second appeal. 1

At the hearing of the appeal, Mr. Achiles Paul Mulisa, learned State Attorney, represented the respondent Republic, which supported the appeal. Each of the appellants appeared in person, unrepresented. In summary, the main plank of the prosecution case rested on the evidence of PW1 (Joyce Shangwa). Her story was that on 12/11/2007 at 02.00 hrs while asleep, a group of four assailants broke into her house and raided her room. She identified all the appellants with the aid of a lamp ("Taa ya chem Ii'') which the 1 st accused, a close relative, with whom she shared the same grandfather had ordered her to light. The incident had lasted half an hour and the lamp light was on all the time. Her room was two and a half meters wide. PW1 also knew both the 2 nd appellant who always used to come to her house and the 3 rd appellant who had once lived in the same house she now lived in. PWl's evidence was that the 1 st appellant wore a vest, a coat and blue trousers; the 2 nd appellant had a red vest and blue trousers and the 3 rd appellant wore a Tshirt, white shoes and blue trousers. The assailants assaulted her with a panga and robbed Tz shs 100,000/= and a sack of paddy. 2

-.J . PW1 claimed to have immediately named the appellants to PW2 (James Mwameta) and PW3 (Zainabu Ibrahim Kutamila), neighbors who had responded to her alarm that very night. Each of the appellants denied involvement. Relying on Waziri Amani v. R. [1980] T.L.R. 250 the trial court found out that PW1 had positively identified all the appellants. It held that the prosecution case had been proved beyond reasonable doubt. In turn, the High Court considered PW1's testimony straight forward, eloquent and her credibility had not been shaken by the appellants' cross- examination. It held that there was sufficient light in PW1's room for her to clearly identify the appellants, whom she knew before the incident. It upheld the trial court's decision. Having considered the appellants' memorandums of appeal, in our respectful view, the essential and decisive ground therein is a challenge on PW1's evidence of visual identification. They fault the trial court and High Court's concurrent findings of fact on their purported visual identification by PW1 whose evidence on the lamp light was contradictory and who had not even named them to the neighbors immediately after the incident. Mr. Mulisa submitted that the trial court and the High Court neither considered the totality of the evidence nor did they weigh the evidence of 3

PWl against that of all the other witnesses in finding her credible. First, he indicated that during PWl 's cross-examination by the 1 st appellant, she responded that he had ordered her to put on the lamp light. This created a doubt in her testimony as a close and known relative who the 1 st appellant was, could hardly have made such an order that would render him obviously visible to PWl. Relying on Maiko Charles V. R. Criminal Appeal No. 20 of 2008 (CAT, unreported), he faulted the courts below for finding PWl a credible witness. Second, Mr. Mulisa emphasized that PWl testified that the 1 st appellant had ordered her to put on the lamp. That PW4, D/CPL George gave evidence that PWl had reported to the police that she kept the lamp on as she had a newly born baby. That this was a serious gap, which also put her credibility in doubt. Third, he submitted that at the trial court, PW2 and PW3, who immediately came to the scene of crime were not able to recall the names of the assailants whom PWl had allegedly named. That as the incident took place on 12/11/2007 and PW2 and PW3 testified on 18/6/2008, the intervening period was not too long for them to have completely forgotten the names of the appellants, if they were really mentioned to them by PWl. 4

The principle of law applied by this Court is that it will not ordinarily interfere with or disturb the concurrent findings of fact entered by the trial court and the first appellant court unless they are perverse; demonstrably wrong; have been arrived at in violation of some principle of law or procedure or are · the outcome of a misapprehension of the evidence or result in a miscarriage of justice (See, Duda Ndugai v. R. Criminal Appeal NO. 237 of 2004; Hamza Hudu v. R. Criminal Appeal No. 6 of 2005; Mussa Mwaikunda v. R, Criminal Appeal No. 174 of 2006 (All CAT, unreported). Having closely scrutinized the record and bearing in mind the grounds of appeal, in our considered view, the appeal stands or falls on the correctness or otherwise of PW1's visual identification and her credibility. The law is well settled that the evidence of visual identification is highly seductive and to sustain a conviction it must be absolutely water- tight and free from all possibilities of mistaken identification (See, Waziri Amani; Raymond Francis v. R. [1994] T.L.R. 100; Igola Iguna and Noni @ Dindai Mabina v.R., Criminal Appeal No. 34 of 2001 (CAT, unreported). Eye witness identification, even when wholly honest may led to the conviction of the innocent (R.v. Forbes [2001]1 All E.R. 686). 5

On a close scrutiny of the totality of the evidence, we are of the considered view that PWl 's evidence of visual identification was not free from serious misgivings and had not erased all the possibilities of mistaken identification. First, when cross-examined, PWl testified that it was the 1 st appellant who had ordered her to put on the lamp light. The irresistible inference is that it was then off. The lamp light whose intensity was not revealed, was most influencial in aiding her visual identification of the appellants. It was, she said, continuously on throughout the event, which had lasted half an hour. On the contrary, PW4, the police investigator gave evidence that when he interviewed PWl at the time she made her report to the police, on 12/11/2007, she informed him that the lamp light was on as she had a newly born baby. We would agree with Mr. Mulisa that this was a serious contradiction going to the root of the matter that affected her credibility and which went undetected by the courts below. Second, PWl's evidence was that she was asleep when the assailants entered her room. Yet when she was interviewed by PW4 she told him that the assailants had attacked her while she was feeding her young child. The inference was that she was then awake. Her report · to the police could hardly have been the result of a natural lapse of memory as she immediately reported the incident on 12/11/2008, the same day the event 6

~ occured. With respect, this aspect of her evidence, unassuaring, was also unnoticed by the courts below. Third, we are also unimpressed by PW1 's evidence that it was the 1 st appellant, a blood relative who had ordered her to put on the lamp light, thus putting himself in plain exposure and view, risking direct identification by her. Ordinary human conduct and the appalling circumstances of the event would probably suggest otherwise. Why would the 1 st appellant choose such a course of action that would have led to an immediate positive identification by PW1, if the purpose of his mission was to commit an armed robbery of a close relative and at night. It should also be recalled that the assailants beat PW1 with a panga and had threatened her to do more with it. As stated by the Court in Maloda William and Mahagila Mlimi v.R., Criminal Appeal No. 256 of 2006 (CAT, unreported): "the credibility of each witness in a case ought to be dispassionately assessed by testing it not only against the whole of his or her own evidence but more compellingly against the entire evidence on record be it testimonial or documentary. It is unjudicial and unacceptable to pick out the evidence of a particular 7

,) witness or witnesses and accept it as true without first testing its accuracy ..... " In Jaribu Abdallah v. R., Criminal Appeal No. 220 of 1994 (CAT, unreported) we stated: ''In matters of identification, it is not enough merely to look at factors favoring accurate identification, equally important is the credibility of the witness. The conditions for identification might appear ideal but that is no guarantee against untruthful evidence'~ Having examined the record, we have found another piece of evidence that troubled the prosecution case. PWl testified that she shouted for help. PW2's evidence was that he heard a woman's shout at 02.30 hrs. PW3's version was that when she rushed to the scene of the crime, she asked PW1 why she did not shout for help. PW1 and PW3's houses were twenty five meters apart. PWl told her that she did not do so because the assailants had threatened to harm or kill her. Much as it was sufficiently proved that PW2 and PW3 did go to the scene of the crime, the above discord between the evidence of PW1, PW2 and PW3 although not 8

decisive in itself to fatally puncture the prosecution's case, effected the overall _veracity of the narrations of its essential witnesses. That apart, in its judgment the High Court also found: "The evidence was so credible [i. e PW1 J that it did not even require corroboration. Although the evidence of PW2, PWJ and PW4 corroborated the evidence of PW1 on the issue of mentioning the names of the people who robbed them'~ The question that arises is whether it can be validly said that the evidence of PW2 and PW3 corroborated that of PW1 to render her testimony on the appellant's identification additionally credible and reliable. It is trite that the purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient, satisfactory and credible (See, D.P.P. v. Hester [1972] 3 All ER 1056, 1065; D.P.P.v. Kilbourne [1973] 1 All ER 440, 452; Aziz Abdallah V.R. (1991) TLR 71). The incident took place at about 02.00 hrs. PW2 and PW3 rushed to PWl's house. PW2 had been a ten cell leader for almost twenty years. PW3's house was near PWl's. PW1 testified that she named the appellants to them at that occasion. At the trial court, however, PW2 and PW3 9

completely failed to name any of the persons that were allegedly mentioned to them by PWl. We would agree with Mr. Mulisa that if the 3 rd appellant had previously lived in the same house as PWl, it is surprising that PW2, as a ten cell leader for twenty years had not even seen him and even failed to recall his name, purportedly mentioned to him by PWl on 12/11/2007, only seven months prior to his testimony on 18/06/2008, this given the gravity of the armed robbery and his position as a veteran ten cell leader. Moreover, at the trial court, PW3 who lived only twenty five meters from PWl's house also failed to name any of the assailants allegedly mentioned · to her by PWl. She too did not know if the 3 rd appellant once lived in the same house as PWl. With respect, when the whole evidence on the record is re-examined, the evidence of PW2 and PW3 as analysed, could not have amounted to sufficient corroboration as erroneously found by the High Court to augment PWl's credibility or to independently confirm that the appellants hqd committed the armed robbery. The evidence of PW2 and PW3, itself deficient as corroborative evidence could not give any validity to PWl's evidence, which as we have stated earlier raised a significant doubt on its reliability.

.. ' All in all, as vital doubt engulfs the evidence of PW1, with respect, it could not justifiably have been held that· her visual identification was positive and credible and that the prosecution case had been established beyond reasonable doubt. In these circumstances and with respect, we are constrained to interfere with the concurrent findings of facts arrived at by the courts below through a misapprehension of the evidence and to prevent a miscarriage of justice. In the result and for the above reasons, we allow the appeal. The appellants' convictions are quashed and the sentences imposed are set aside. They are to be released forthwith from prison unless otherwise lawfully held. DATED at MBEYA this 19 th day of May, 2014. M.C. OTHMAN CHIEF JUSTICE E.M.K. RUTAKANGWA JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL I certify that this is a true copy of the original. JI/I;) F. J. KABWE DEPUTY REGISTRAR COURT OF APPEAL 11