Ougeni Lamson vs Republic (DC Criminal Appeal No. 23 of 1999) [1999] TZHC 297 (17 December 1999)

1· I IN '.1 1 llli: HIGH CO'0ffl' OF 'l'ANZAi'ifIA A'l' MBEYA (DC). CRIMINMJ APPEAL NO. 23 OF 1999 (original Hbeya Distr.ict Court Crimi:n.al Case No. 676 of 1997 Before; S~ V .G. Karua. -~ . 1 3enior Resident 1-la,r;istrate) OUGEN LAMSON APPBLLANT Versus 'I'HE l-?.FPUBLI C ' ' . o o o o ~ o .t :, a o· o o "J o o o o o " o o o RE:SFONDENT ., JUDGMENT -,:,_,-e,.•-·ar~-·"'_. ........ _ . .,. 'l'he - appellant, Oue;eni s/o Lar;son,. was the ,:[o..1!,;.t.h accused person in an indictment for Robbery wit1 violence, co:ntrary to sect.ions 285 a:rid 286 of the Penal Code, before the district court . of Nbeya. 'l'he o·t;her accus•ed persons were Eliasi Chisumila (first accused), Japhet Lamsoni (second accused), and J\k:son n l 1 ( t·• . d ') -.ap 1a.e . .nir accusea • 'l'he second accused was the younger brother of the appellant ·.rhe four accu:sed persons pleaded not guilty to the charg~ and a full trial ensued. ':!}he trial court acquttted, the f.rst, _s,E:,t?,C?il½ and i4£.£ accused. persons of the charge on the ground th§tt they were. not properly identfied at the scene of crime. The appellant, however, was convicted $S chrged c,1nd sentenced to ... · the statutsiry minimum imprisonment terrn of .f.i.f__te.e!2_,JLe,¥'.f:.o He was also. ordred,

1. ,-:· • to pay a cmt1pem3ation of shs .150 1 000/::: to tl1e co!::plaihant, E'r,mk anga,. or distress in. c;lefault. 'i'he cowiction, sE!ntence a:qd order of compe11S2,.tion aggrieved the a,ppella:n,t, hence this appeal preferred and argued before me. 1;,y his learne?- advocate, l'firo Mlcumbe, and resisted by th:·. boi;;t:i.:face, learned state attorney for the Republic .• 'l'hese material facts were established in evidence.·. During the night of 10th/11th September 1997 Erank Sang-a (PW1):was asleep in his house. He was alone. At about 1.30 2.m untmow.n number .of thieves broke the front door o:t:· his house using. a big sto11eo !J.r-:. h.e w2,s about to get out. of his bedrooqJ t.o find out 0 0 ••• 0. 0 0 • • • • • /2

2 what was amiss two of them entered the roor;1 whicl1 had a lit lantern lamp. One was behind the other. The one infront held a torch and wore a hat which partly covered his face. The one behind had a panga.. t.s the one behind struggled to cut the throat of PW1 1 P'J1 lifted the lamp and hit the face of the one infront. '.L7he glass shattered and there was an expJ.osion. 'l'he one behind inflicted cut wounds on his heado He claimed that by aid. of the light caused by the explosion he s·a.w and identified the one infront as the appe;t..;).ant and the one behind as the first accused. He managed to rash out of the bedroom and found at the sitting room three other bandits he could not identify. One of them stabbed him with a knife at his chest. He rashed to the.front door to get out of the house where he allegedly found the second accused holding a panga. with wl.1icl::. he cut him at hi,s back. He ran to the house of his immediate neighbour, Haiwenje Hwalyego (PW2). Haiwenje (PW2) ha.d been 8.wakened by the commotion a.t the house of PW1. ?.e opened the front door of his house to investigateo He found PvJ1 at the pavement bleeding profusely,, He raised an alarm which wc.1.s promptly answered by many people 7 among them, their V .E&O .• ,July Ha.tema. (F\rJ3), Gidion Ndemezye (PW4) ~ Juma. Nyc1rnbo (DW5), Moses Nyambo (DW6), and the a.ppellanto They asked Pd1 to name suspects tut he mentioned none~ 'l 1 hey took him back to his house to dress for hospi taJ. o ne etered his becu·ooin and then detected. that his shso15C,OOO/= was missingo He could not detect anything else amiss or unusual .. · " · in the roo:rn. '.they took him to the police station where a Pil"'3 was issued. All this time the a1)pellant was present ai.1<.l offering assistance. 'I'hen they took him to Hbeya E:eferral Hospital where he was admitted. :F'ive day.c3 later, on 15o9o97, P\J1 was discharged from hospital. }3a.ck home he allegedly found a cap (Ext P1) in his bedroom which it was claimed belonged to the appellant. 'I'he story- was 'that the appellant was wearing it on the day of the incident and dropped it in the scuffle which ensuedo The . I t cap (Ext P1) was found written ,:ou[;eni:.- inside it. But accordin 0 to th&.,?r 'l<<n-, .. a:·? investigator, D/Sgt Gerar;d (PW5), it wa,s not established whether or not the /3

name was written-by the appellant. According to PW3 he consulted 17 persons who said the cap·belcinged to appellant. But PVJ2 and P:J4 said the cap was not . ' ·' .-. shown to the 1·7 persons .. · Be· that as it might, the purported identification was not by the name written on ito It wcs that it resembled one they used to see the appIhii·f waatirig. · · On 18.9.97 the appellant was arrested by PW5. P:tl3 said it via.s 'on 2.1097. In his S',JOrn defence at the trial th~ appellant dened complicity in 1.,J.J.c (.,.J.·::.,nc:. r:I.., v,as 3,sleep in his houE'e, ]1P.axcl tb.P. r-,larm, and answered it just like nany other people. '.l'he cap 0:Jxt F-1) did 11.0- belong to him. He did not write the nane in ito Objecting to the acl.r.1issibility of the ce.p when P;J1 ·,.·-::.::- testifying the a:ppellant said the cap was ci.1e· property of the son of PW1 r<:'.ed Irna who did not testify. tie celled two l-1itnesses, J\ui1a. Nyambo (DW5) Vir" iVJJ.-rnmbe }Jreferred four grounds of c;ppeal tvhich were~ '1 n '.E'hat the learned trial l..ienior f'.esident . lViagis-1::rate erred in law ond fact in hoJ.di:r..g t:C1at the ayD0llar:~~ :-:&cl been properly and sufficiently identified as t.:.,,,_ ,.::-a.;· ::,,nt o+' Pv.i1 at the rna.t er ial time. 2o . r_Chat the learned t.1ial i..:ienior Fesic£c::n-':; Magistrate erred b • a.nd fa.ct in holding tha:: fre c,_p elle5ed.y fo 1 ':.,· · of crime WDS nobody else 1 s bu.-C ·:::? p···-- •.• -c;J.'red. in law and .., .. ,)::::,:'.ncmt) was a credible fact. in ho,ldi ., ... tT~~~ Senior Resident M2gJstrptD ~rred in law and ::ac•,· =~n >01.ring tha.t the ingredient o:f :robbery with violence ha.d t )en ·.>rove do I would, with respect, agree with :fr. il-ikumbe that the appellant, like his co-a.ccused.s, WfJS not properly identified a.t the -scene: 0f c 1 ime. 11he identification evidence 0f P,11 fell short of properly i<lehtifying the ai)pellant , . in the obta.ining circumstimces. I+ w&s during tne night. 1'here was havoc and confusio:n. The encou11.te·.J. \·'as br1· ef. 'I'h · · , · . ere was no exchange of words. 'I'he face of the appellant wa.s partly cevered with a. hat. J.J. 1 : ex_plosion oy its very''·'·' nature is brief. So a light from an explosion would not, in all the circumstances, • 0 Q • 0 ,:. 0 Q O • /4

·.a•re sufficed. In a.ny event, as co_ncec.led by the learned state attorney, the · ·. · irnpa.ct of the lamp on ·the fa.ce of .the appellant, if tr\1e, would certainly nave . ~ . - . - left 8 mark of violence on it o. •. Dut no such mark was found or seeno P\t ✓ 1. was obviously uncertain abou't the identity of his assailants. 'I'his would account for the fact that he failed to name any suspect when asked: to do so by those H.i:lo e:'.1Swered tJ.io EllarmQ He would certainly have done so ha.d he properly ssen and id0ntifj_c,d them. It would aJ.so. account for the fa.ct that he did .L his aRsertion that he had identified them. And 8bove all, the appellant had prOl'."I>ly ans'•re1ed the alarm just like the many others and. fully participated In the circumstances of the case, this could not ,.. ,; b'.:9n possible had the appellant been among the assailants. 1 rhe •• .·;: 4 {;:-:0:1 eviclence, tl1erefore! did no-: :cule olt tl1e possibility of .. " _ . " I ·,muld thus agree with Hr. i'·ikui:1be tl'lb.t the t:c.31 court erred in .. '"' holding that the appellant was p;,?op::.·:'.'l~, iclo:1·~::.fied at the scene of crime. I pass on to con.sider the questfo:'l of the cap (Ext P1)., I am satisfied tha.t the trial court 1 s find.:~ng -::ha.t it belonged to the appeJ.lant ':':a;S ra:ulty.. 'I'here were some mated.c1l foctc:~s wr:.:'.:::h the trial court failed to coi1,sicler, let alone prono-unce on thorn,. fi.;:s:b t:t1<:: appellant 1 quite ob 0 riou2J.;-r, was not wearing the cap at tho mc,tc-riGl -ime. P-11 said the -'""'1JclJ.c111t was 'i'.'JS'.'ing 8. not which partly cpv.ered. his facG,, A hat and a cap :i:.'o ·c,·.'0 dii:o::.e1,t articleso Eiecopg,, P'J1 rettirnGd to his bedroom for dressing · .. , ... :::£6::--o going to th8 'poiice encl hqspitai. He sa.id he detected a.t that time J;ha.t <Ls ,: 1 on-':y was missing and that nothing e;J..se w2,s a.miss or unusual. 'the ,:,11 hn.c : 1 .c-'; been placed or hidden in the room. T'10 allegation was th3.t it ( h-:i.d r.lroppod ir.. thG- scuffleo Quite obviously 1 therefore, P'..'1 would have r,00n the caJj ::;t that time had it been drop_ped in the root,1 by tho appellant ·_.; i::-1::.ins the ._co.p be for.: djd not say so on account of the name written inside i·c, '.!:hey sGid they had seen .the oppellant wc 2 ~~,ing like cap. But it was not ,, . 01'1-Coaooooo.o,oeoo /5

5 establi.shed that it was the only ca1-1 of that type in the loca1ityo 'l'he author of the name inside it was not established. In the circtunstances, therefore, it was HJ1, and not the a,ppellant, who was identified with the cap. I would, again, agree with Mro hkumbe that the trial court erred in its holding that the cap was the property of the a.ppellant. For tl:e foregoing reasons, I allow the appeal, qua.sh the cor.viction, sE:t c2.. ::g th0 sentence and the order for cornpensa.tion, and hereby order -c11e iu1aiedia1.e .celei::1>':lG of the appellant, Ougeni s/o LRmson, from prison ' u.nle.ss otherwise lawfully heldo l . · .I., , , t_, ... I ~--:---. ""• I . I . Ui I '· For Appellant: l"lro Mkur11be, advocatee For Republic: Mr. Mulokozi, S"A. BoPo :tiiOSHI ,JUIXrn. I CJIJRTT:F'Y '.l1fiA'.I' 'l'HIS IS A TIWE COPY OF THE ORIGINALo