Ramadhani Mtinda vs Republic (Criminal Appeal No. 20 of 2013) [2014] TZCA 2320 (20 March 2014)

IN THE COURT OF APPEALO::F'.__TA:N:ZANIA~---------- ______________ _...A ..... I=A ....... R=Ua.=S..a...aH.a...aA (CORAM: OTHMAN, C.J.,BWANA,J.A. And MANDIA,J.A. ) CRIMINAL APPEAL NO. 20 OF 2013 RAMADHANI MTIN DA .. ■ ••••••••• ■ I •• I •••••••• I:. I I I. I. I •• I ••• I •••••• ■ •• I ••••••• I. ■ ••• APPELLANT VERSUS THE REPUBLIC ......................................................................... RESPONDENT (Application from the conviction and sentence of the High Court of at Arusha) 20 th March, 2014 OTHMAN, C.J.: (Msoffe, J.} dated the 13 th day of November, 2003 in Criminal Appeal No. 32 of 2002 RULING OF THE COURT The matter before us originates from the Katesh Primary Court. The threshold question on the competency of this appeal, raised suo motu by the Court, is whether or not it has been properly seized with a point of law under section 6 (7)(b) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002. On 19/11/2010, the High Court had certified that the issue of identification was one of law bar determination by the Court. 1

The appellant was charged, convicted and sentenced fqr_.f\rm.ed ___ _ Robebry c/ss 285 and 286 of the Penal Code, cap 16 R.E.· 2002 to the mandatory sentence of 30 years imprisonment by the trial court on 26/1/1999. The appellant's memorandum of appeal effectively challenges the reliance by the Courts below of PWl and PW2's visual identification evidence at the scene of the crime relying on Waziri Amani V.R. (1980) TLR 252. Ms Eken Rwijaje, learned State Attorney submitted that identification was a question of fact based on evidence. It was not a point of law. The High Court had erred in certifying it as a point of law. She invited us to strike out the appeal for non-compliance with section 6(7)(b) of the Appellant Jurisdiction Act. Fending for himself and without legal representation, the Appellant relying on Nyerere Bura V Rashid Mohamed, Criminal Appeal No 220 of 2009(CAT) (unreported) submitted that this Court had previously dealt with the issue of identification in that case originating from a Primary Court. He saw no reason why his case should be treated differently. He invited us to hear and determine the appeal on the merits as the High Court had erred in its evaluation of the evidence of identification. 2

We have closely considered the issue raised and agree _with Rwijag.e-------- that the certified issue of identification raised in this appeal is one of fact and not a point of law. The complaint in the appellant's memorandum of appeal is the subordinate courts' reliance on the visual identification evidence of PW1 and PW2. That apart, Nyerere Bura's case relied upon by the appellant is distinguishable from the instant case. There, the point of law was whether voice identification evidence was strong enough to sustain a criminal conviction. The appeal before us is similar to Yerema Mihenge VR, Criminal Appeal NO. 295 of 2011 (CAT) (unreported) where the Court stated: "the point certified for this Court to consider is the issue of identification in the case against the appellant With respect this is not a true point of law which we could safely deal with. We say so because in our perusing of the record we are satisfied that the issue of identification was adequately dealt with by the Courts below. In other word~ this is a question of fact and not law. Indeact even the memorandum of appeal is raising question of fact and not law. As it is/ it will be fair to say that we do 3

not have jurisdiction to deal with matters of fact at this stage'~ We agree. -· For the foregoing reasons, this appeal is misconceived. We hereby strike it out. It is so ordered. DATED at ARUSHA this 20 th day of March, 2014. M. C. OTHMAN CHIEF JUSTICE S. J. BWANA JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL