Thadey Rajabu @ Kokomiti &Others vs Republic (Criminal Appeal No. 58 of 2013) [2013] TZCA 2145 (5 December 2013)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: KIMARO. J.A.. MASSATI. J.A.. And MMILLA. J.A.^ CRIMINAL APPEAL NO. 58 OF 2013

1. THADEY RAJABU @ KOKOMITI
2. PASCHAL JOHN @ MKENYA
3. JAMES MARO @ TIZOO APPELLANTS VERSUS THE REPUBLIC ........................................................... RESPONDENT (Appeal from the conviction and sentence of the High Court of Tanzania at Moshi ) (MunuOtJL) dated the 20th day of August, 2002 in Criminal Appeal No. 32 of 2002 JUDGMENT OF THE COURT 3rd & 5th December, 2013 MASSATI. J.A.: The appellants were convicted of the offence of armed robbery by the District Court of Moshi in October, 2001 and sentenced to 30 years imprisonment, 12 strokes of the cane and ordered to pay the victim, the sum of shillings 125,000/= as compensation. The High Court in Moshi dismissed their appeals. This is now their second appeal.

The brief facts of this case are that; on 30th May 2001, at around 4.00, pm, PW1 WP 3174 JANETH, went out to Kiboroloni market to buy a piece of wrappers (kitenge). She was in the company of PW2, PENDO MGWABATI, a neighbour's daughter. While at the shop, they were surrounded by four youths, one in / front, one behind, and the other two on both sides. The one from her right side flushed a knife and pressed it on her ribs. The one in front snatched her hand bag, and soon after, the robbers took to their heels. According to PW1, inside the bag, there was a cell phone valued at shs. 180,000/= and shillings 30,000/= cash. She gave chase to the robbers in vain. When she came back to the scene of crime, many people informed her that the robbers were known. They even mentioned some names to her; namely, Kokomiti, Mkenya, and Tizoo. With that information, PW1 reported the incident to Kiboroloni police outpost. After some investigation, the appellants were arrested and charged as the alleged perpetrators of the crime. Both courts below made concurrent findings of fact that the appellants were adequately identified as the perpetrators of the

offence, and were satisfied that the prosecution case was proved beyond reasonable doubt, hence the convictions. Those findings are being challenged in this appeal. The first and second appellants filed a joint memorandum of appeal faulting the conviction and sentence on five grounds. First, that the prosecution case was not proved beyond reasonable doubt. Second, that the prosecution witnesses were not credible and the first appellate court erred in so finding. Third, in the absence of an identification parade, the convictions were not justified. Fourth, there was no cogent evidence to sustain the conviction and lastly the sentence of 30 years imprisonment was unconstitutional because it was imposed on the appellants when such law had not been in existence, when the offence was committed. On his part, the third appellant also filed and argued five grounds of appeal. The first four grounds were similar to those raised by the other appellants. But in his fifth ground, the complaint was that the evidence of PW1 and PW2 needed corroboration which was lacking. The appellants also filed and adopted written arguments in elaboration of their grounds of appeal. At the hearing of the

appeal, the appellants appeared in person and had nothing useful to add. The respondent/Republic was represented by Mr. Zakaria Elisaria, learned Senior State Attorney. He did not support the conviction and sentence. He submitted that in the absence of those witnesses who allegedly mentioned the names of the suspects to PW1, and that of the police officer to whom PW1 gave the descriptions of the robbers, the prosecution case remained suspect. In his view, this was a fit case in which an adverse inference could legitimately be drawn against the prosecution case for not calling those witnesses. In the circumstances, he was ready to let go and urged the Court to allow the appeal. As to the sentence, the learned counsel submitted that the Minimum Sentence Act was amended by Act No. 9 of 1989 to increase the minimum sentence to 30 years imprisonment. So if the convictions were sustained, the sentence was quite in order. The main issue in this appeal is whether the appellants were sufficiently identified. As shown above both courts below made a

concurrent finding of fact that the prosecution witnesses adequately identified the appellants. This being a second appeal, as a general rule, the Court would normally confine itself to questions of law, and rarely interfere with concurrent findings of fact by lower courts. But this approach rests on the premise that the findings of fact are based on a correct appreciation of the evidence. If, both courts below misapprehend the substance, nature and quality of the evidence resulting in an unfair conviction, this Court has to intervene. (See SALUM MHANDO v R (1993) TLR. 170 at p 174.) Or, where there are misdirections, and non directions on the evidence, the Court in a second appeal is entitled to look at the relevant evidence and make its own findings (See RESPIKI MICHAEL @ PENDO V REPUBLIC - Criminal Appeal No. 287 of 2007 (unreported). The present case is one such case, where both courts below misapprehended the nature, and quality of the evidence of identification that led to the conviction of the appellants. We will demonstrate below. It cannot be gainsaid that the only witnesses of identification were PW1 and PW2. It is true that the robbery took place at

daylight and PW1 was close enough to the robbers. Those could be some of the factors for favourable identification. But as this Court said in JARIBU ABDALLAH V R., Criminal Appeal No. 220 of 1994 (unreported) in matters of identification, it is not enough merely to look at factors favouring accurate identification. Equally important is the credibility of the witnesses. Though favourable conditions might appear to be ideal, that is no guarantee against untruthful evidence. Besides, those are not the only factors for favourable identification. In the first place, the credibility of the only witnesses of the prosecution case here, is affected, first, by the fact that it was their first time to see the culprits. Secondly the incident lasted between two minutes (according to PW2,) and five minutes (according to PW1). This duration is not, in our view sufficient enough for the witnesses to have gotten a good grasp of the descriptions of the robbers, given that this happened at the market where there were many people. As a rule of practice, not law, evidence of such nature ought to be corroborated, although a conviction would not

necessarily be vitiated for lack of it (See HASSAN JUMA KANENYERA AND OTHERS v R (1992) TLR 100. Secondly, it is obvious to us that had PW1 not received descriptions of the culprits from people at the market, the appellants would not have been apprehended. Unfortunately, those witnesses who gave the names of the suspects were not called to testify. Even the police officer to whom PW1 gave the description by naming the suspects or their special facial marks, was not called to testify. As Mr. Elisaria submitted, this was a fit case where adverse inference should have been drawn against the prosecution case for failing to call those witnesses. (See AZIZ ABDALLAH V R. (1991) TLR. 71. So the descriptions of the appellant by names by PW1 remains nothing but hearsay. It was inadmissible and should not have been acted upon by the two courts below. Thirdly, the appellants also rightly complained that in the absence of an identification parade, the dock identification conducted on them had no evidential value. As this Court said in MUSSA ELIAS and 3 OTHERS V R. (MWZ) Criminal Appeal No. 172 of 1993 (unreported)

dock identification of an accused person by a witness who is a stranger to the accused has value only where there has been an identification parade of which the witness successfully identified the accused before the witness was called to give evidence at the trial" In the present case, there is no dispute that PW1 was a stranger to the robbers. It is in her evidence that she was called to the police Station at Majengo, where she was able to identify one of the appellants, namely the first appellant. There was no identification parade. She identified the other two in court. This was dock identification. On the principles set out above, this dock identification was useless and as a whole, without an identification parade, the identification of the appellants was certainly amiss. We are thus satisfied that the two courts below did not properly direct their minds to the above aspects of the nature and quality of the evidence of identification of the appellants on which they based the convictions. Had they done so they would not have come to the conclusion as they did. So, in answer to the issue

posed above, we find that the appellants were not satisfactorily identified. And this leads to the inevitable conclusion that the prosecution case was not proved beyond reasonable doubt. We therefore agree with the appellants and Mr. Elisaria that, there is substance in this appeal. The appeal is therefore allowed. The convictions are quashed and the sentences are set aside. The appellants are to be released from prison forthwith unless they are held for some other lawful cause. DATED at ARUSHA this 4th day of December, 2013. N.P. KIMARO JUSTICE OF APPEAL S.A. MASSATI 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