Martine S/o Andason @Mzilo vs Republic (Criminal Appeal No. 410 B of 2013) [2014] TZCA 2192 (18 March 2014)

IN THE COURT OF APPEAL OF TANZANIA ATTABORA ( CORAM: MSOFFE, J.A., KIMARO, J.A.. And MJASIRI, J J U CRIMINAL APPEAL N0.410 "B" OF 2013 MARTINE S/O ANDASON @ MZILO ............................ APPELLANT VERSUS THE REPUBLIC ....................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (S on q _ o_ ro i_JJ datedthe 27th day of November, 2013 in Criminal Appeal No. 154 of 2011 JUDGMENT OF THE COURT U^&l^March, 2014 MJASIRI, 3.A. The appellant Martin Andason @ Mzilo was employed as a security guard by Lapsak Security Services. On December 15, 2007 the appellant was assigned by his employer to guard the property of Amos Bijampola(PWl) at NguzoNane area within the Municipality and Region of

Shinyanga. At around 4.00 hours a robbery took place at the premises of PW1. The sum of shs four million(4,000,000) was stolen. It was alleged by the prosecution that other security guards who were working withLapsak Security Services participated in the commission of the offence. In the course of the scuffle a gun was fired. PW1 sustained a leg injury. As so many bullets penetrated into his leg, he had to undergo surgery, resulting in the amputation of his leg. Immediately after the fracas the appellant vanished from the scene and did not report to work the next day. He disappeared for about three months and was found working in another District. He denied being involved in the robbery and his excuse for running away from the scene was because he feared that the people whowere involved in the robbery would have killed him. He was subsequently arrested and charged with two counts in the District Court of Shinyanga. On the first count he was jointly charged with three others with armed robbery contrary to section 287 A of the Penal Code [Cap 16 R.E. 2002]. He was charged alone on the second count for neglecting to prevent the commission of an offence contrary to section383 of the Penal Code. He was convicted of armed robbery and was sentenced to a prison term of thirty years. The others were found not guilty.

Aggrieved by the decision of the District Court he appealed to the High Court. His appeal was unsuccessful, hence his second appeal to this Court. The appellant has preferred a lengthy four (4) point memorandum of appeal. His grounds of appeal focused mainly on two issues:-

1. The identification o f the appellant was not watertight:
2. The conviction o f the appellant was based on the evidence o f a single witness. When the appeal was called on for hearing the appellant appeared in person and was unrepresented. The respondent Republic had the services of Mr. JumaMasanja, learned State Attorney. The appellant who did not have legal representation opted for the learned State Attorney to make his submissions first when he was called upon to argue his appeal.

Mr. Masanja did not support the conviction. He submitted that the evidence of identification was not watertight. He contended that there were major contradictions between the testimony of the PW1 and the statement he gave to the police Exhibit D2. Whereas in his statement made to the police he stated that he only identified Emmanuel Dalili who was the 3r d accused, in his oral testimony he stated that he identified the appellant and one Emmanuel Dalili. Mr. Masanja submitted that the cautioned statement of the appellant having been correctly expunged from the record by the learned High Court Judge on the first appeal, the only evidence linking the appellant with the offence was that of PWl. Given the major contradictions between his statement to the police and his testimony, he submitted that the appellant was only being implicated because he escapedfrom the scene. However he stated that, his disappearance alone was not enough to implicate him. The appellant did not have much to say in rejoinder. He agreed with the submissions made by the State Attorney. This is a second appeal. Therefore the Court is precluded from interfering with the concurrent findings of fact of the lower courts unless

there is a mis-direction or non-directionon the evidence. - See DPP v. JaffariMfaumeKawawa[1981] TLR 149 and MussaMwaikunda v. Republic, [2006] TLR 387. After carefully reviewing the evidence on record, the memorandum of appeal and submissions by the learned State Attorney, we are inclined to agree with Mr. Masanja that the identification of the appellant was not watertight. Admittedly the prosecution case is based on the evidence of a single witness, PW1. The appellant challenged the evidence of PW1 and submitted that his identification was not watertightThe crime which was committed took place at 4.00 hours and the light relied upon was electric light. The circumstances surrounding the identification of the appellant were not favourable. In Anthony Kigodi v. Republic, Criminal Appeal No. 94 of 2005 CAT(unreported) this Court stated thus:-

"We are aware o f the cardinalprinciple laid down by the erstwhile Court o f Appeal o f Eastern Africa in Abdullah bin Wendo v. Rex(1953) 20 EACA 116 and followed by this Court in the celebrated case o f WaziriAmani v. Republic [1980] TLR 250 regarding evidence o f visual identificationno court should act on such evidence unless a ll the possibilities o f mistaken identity are eliminated and that the evidence before it is absolutely water tight" See for instance Raymond Francis v. Republic [1994] TLR 100, Shamir John v. Republic, Criminal Appeal No. 166 of 2004 CAT (unreported). On issues involving identification, the identification must be watertight. This means the evidence should exclude any possibility of mistaken identity. In the case of Raymond Francis(supra) it was stated as follows:- "It is elementary that in a criminal case where determination depends essentially on identification,

evidence on conditions favoring a correct identification is o f the utmost importance" In relation to the evidence of a single witness, it was stated in the case of Abdullah bin Wendo and Another v. R (supra) by the then Eastern Africa Court of Appeal that there is always the need for testing with greatest care the evidence of a single witness in respect of identification. See also Nyambura v. Republic [2006] 2 EA 248. In short, the law on visual identification is settled. Before relying on it the Court should not act on such evidence unless all the possibilities of mistaken identify are eliminated and that the Court is satisfied that the evidence before it is absolutely watertight. In the instant case, the only evidence linking the appellant with the armed robbery is that of PW1. Given the inconsistencies and contradictions in his oral evidence in court and the statement made to the police (Exhibit D2) we need to satisfy ourselves whether or not it is safe to rely on such evidence.

In D Hussein v Republic [1975] LRT Parts III & IV No. 56 Lugakingira J. (as he then was) stated as under:- "The presence o f inconsistencies in a witness's evidence may make it unsafe to convict thereon, especially if there is no other evidence tending to corroborate the same ." We would like to point out that the statement made to the police by PW1 (Exhibit D2) on February, 16, 2008 was recorded when the incident was still fresh in his mind as compared to the time when he gave his evidence in court on November 3, 2008 nearly nine (9) months later. Such inconsistencies should have been resolved in favour of the appellant - See Aburaham Daniel v Republic, Criminal Appeal No. 6 of 2007 (unreported). For the foregoing reasons, we find merit in the appeal. We accordingly allow it, quash the and conviction, set aside the sentence of 30

For the foregoing reasons, we find merit in the appeal. We accordingly allow it, quash the aftd-conviction, set aside the sentence of 30 years imprisonment. The, appellant is to be released from prison unless held for some other lawful cause. DATED at TABORA this 18th day of March, 2014. J.H. MSOFFE JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy of the original.