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Judgment

IN THE HIGH COURT OF TAN7ANIA AT MWANZA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 123 OF 1998 (Cl) HC/CR/APp. No. 12/98 & 12/98 rijna1 Criminal Case No, 445 of 1997 of the Distric.t Court of .zsoma Diatict at Muaoma Peefre:— L. X, MLACHA, E., Ri-dønt Iajeti'e) là MWITAs/oNH2E ) 2 9 IBR&HXM 13/0 4 5 4 5 4 4 4 4 5 S • • • • • • . APP LLANTS 3. THOMAZ Wo MaTYA.M) raus THZI UNITEi BEUHLJC . . . . , -% . . . • • JUDMENT These axe oimina1 appeals Nos 4 123 of 1998 in fvf Mwã4 ie• 124 of 1998 in re5pGct '-'- varfthim mheye and 125 of 1998 in respet of Thomas Naiyai2a (now the first; second and third appellants r&peotively 0z;i th ]).etzjot (J'u.r* 14ima jp rjija1 ge x, 445 of 1997. The appellants, together with two Others 1 were charged with the oIferi,e of robbery c/s 285 and 286 of the Penal Code and were convicted and sentenced to thirty I3o) 'ya 1nrison9at 6Aa two.? ('t2 1r the carieeach. Aggrieved by that decision, they have now appealed to this Court and their appeals have been consolidated and heard together. The first appellant Mwita Nhere raised a number of grounds in his petition of appeal including the defence of an alibi and the unsatislacry conditions of identification at the scene of the alleged crimes The second appellant, Ibrahim Mhere also raised the same grounds of appeai including the fact that he was not frund with any of the stolen part properties. On his t the third appellant raised the issue that the trial court erred in receiving the evidence of his wife under section 34 () (2) read together with section 130 of the vidence Act, 1967.

-. 2-. At the bearing of the consolidated appeals, the appellants had opted not to be present and the respondent Republic, was represented by Ir. Outa. learned State Attorney. Mr. Outa supported the of the first and second appellants, He submitted that the co.tir for the identification of these two appellants were favourable. He stated that when the bandits stormed into a house that was occupied by PWI, PW2 and Pd3, the alleged bandits entered the room occupied by Sadiki t PW3. PWI, sensing danger, climbed to tI'e ceilin8 J..eaving bahi* his wife in the room. With the aid of light from a lamp he observed the two appellants and one Mujujuka beating his wife. The bandits then ordered him to climb down and was attacked by paxlgas. The learned State Attorney also submitted that PW2 identified both appellants. by sight and voice and added that this was enogh to found a conviction and vited the casa ot' JumaAlivR TiW7 TLB 27's. The learned S.tate Attorney however declined to support the conviction of the third appeUit Thomas Maxiyama since it was based on a statement made by his wife and which was in his, view e eozsly a,ittet in evidence, Let me first deal with the appeal, by the third appeaant, The third appellant's seond ground of appeal reads as fllows -. That the trial court erred in receiving the statement of his wife under seci 34 B(2)(a) of the Evidence Act and basing his conci- ctin largely on it, The Court imist have complied with section 130 of the evidence Act No. 6 of 1967." On the 26,8.98 the record of the trial Court reads in part as under - I.P. My witness who is the second accused' s wife has disappeared. ..,• .•.. . . .

3 .., I pray tc tender her statement because it appears that the second accused has hidden her, I can tender it under section 31+B(2)(a) 2nd accused: I don't knr,w where s.e is, She Iia.s disappea.rd, Ct: The statement r%f Ienasa w/o Thomas Manyaina dated 3,3,97 at police Bkiitia is read over in court and received under section 34(3) (2)(a) of the Evidence Act 1967 as prayed, The third appellant wqs the ecrnd accused pereorl, j, 4-% f hia jc1.snt, the learned Resident Magistrate quoted the said statement and stated L- Ht'he '48ce aead Mgrd3 the othds is intc1 and cannrt be h&cëri by the rj The 'o1ibz's stayed inside for a &nsiderable period and could be properly identified, Yet still, blie statement of the second accused's S. ... wife clears all the doubts. Ineed I reject the foolish defences rf the accuseds (emphasis supplied) Apparently the conviction of the third appellant was based on the statement by his wife which implicated him and the first appellant. I have examined the evidence of PWI Cbedl Ndarr and the third appellant does not feature at all in the alleged robbery inside the hnuse. The evidence of P Amani Nohamed links the third appellant as being seen outside running away together with David Rbson Mta, • S. S• 555 . . 11+.

4 - PW3 Sadiki Jumanne does not mention him at all in his evidence. Apart from the statement of his wife 1 even then of doubtful evidential utiily there is nr other evidence linking the third appellant with the robbery. In admitting thp statment, the learned Resident Magistrate purported to invoke section 31+13 (2)(a) of the Evidenoe Act, This Court has held that, and I respectfully subscribe to this view that In order for a statment to be admissible under that section all the conditisons laid down under S. 3413 (2) that is from (a) to (f) must be met 0 (See; DPPvCoanchaLT987 TLR 127 at page 128; MBCCC Ltd L982 ThR 243 at page 21+7) it is thus obvious that the conviction of the third appellant, Thomas Manyama cannot be allowed to stand This now takes me to a consideration and determination of the appeals by the first and seccnd appellants. Both of them raised the defence 6f an alibi 1 and that the conditions on the material night were not favourable for an accurate identification. I shall first tackle the defence of an alibi. Admittedly, there is no obligation o the part of the appellants to prove their defence, The first appellant in his third ground of appeal states thus - That on the date of the alleged incidence the appellant was at home the whole night and did not meet the other craccuseds This defence was the second appellant's first ground of:appeaj. mUch reads That the appellant raised a strong defence of alibi that .15

he was in hospital between 15.1.97 to 3,3.1997 this was proved by his witness Seleman (DwS)." The answer to this, I think is to be found in section 194(4) and () of the Criznin.al Procedure Act (CPA) which reads as under +, Where an accused person intends to rely upon an alibi in his defence 1 he shall give to the Court and the prosecution notice of his intention to rely on such defence before the hearing of the case, 5. Where an accused person does not give notice to his intention to rely on the defence of alibi before the hearing f the case, he shall furnish the prosecue.. tion with the particulars of the alibi at any time before the case for the prosecution is c1osed. My perusal of the record shows that both the appe11nts did not conly with section 194(4) of the cPA The prosecution ce closöd en the 26.8,98 and .equaUy the xe.cord. does nt indicate that the jarticu1ra of the alibi were furnished to the prosecution biefore the close of the prosecution case. The consequences for such norconflance are to be found in section 19 4 (6) o f the CPA, 1 can do no better than refer to the judgment of the Court of Appeal in the fl case, of Cha.ries Samson v R 997 R 39 wherein at page +2 the Court stated thus tIt is obvirns, on a proper construction of the provisions of this section, that the Court is not exent from the requirement to take into account the defence of an alibi 1 where such •s•I*.*.• ./6.

6 - defence has not been disclosed by an accused person before the prsect-. tion closes its case, iat this section means is that where such disclosure is not made; the Court, though taking coquizance of such defence 1 may in its discretion accord no weight of any kind to the defence I have taken cognizance of the defence of alibi raised by bot1i the appiUants but using ir judicial discretion, I accord no weight of any kind to the defence The last substantive ground of appeal by both the appellants is their identification at the scene of the alleged crime. The case f' the prosecution stands or falls on the evidence of three prosecution witnes, nnely ?141 Cbedi Ndakr. PW2 Amani Mohndi and PW3 Sadild Nnianno, All three were staying in the seine hise but cojj1x fent r'm$ 0 The house was broken into an the night of the 28.2.97 at 11.00 pin. The two appellants' convictici in the trial court was based on ideutiicti'n and a statement pirportely made by the wife of the third appellant. I have already discussed that this statement was erroneously admitted in evidence and relied upon by the learned Resident Magistrate iA triavictinqg, the ellants S.o what remains is the evidence of identification f the appellants. In tha ase of Wilson CUovR ZT96_7 HCD 183 this Court had this to say - Uijjhere the evidence which in1icates an accused is entirely that of identification, that evidence must be water—tight before a conviction could be founded therenn.il The appellants have strenously contended that the conditions the the conditions then prevailing were far from being satisfactory. Before I consider and evaluate the evidence, I take the liberty to extract .17.

-7-. this passage from the celebrated case of Waziri Amani v R A98 6 7 '.IIR 250 at page 252 where the Court of Appeal stated thus 'A1though no hard and Last rules can be laid down as to the manner a trial judge should determine questions of disputed identity, it seems clear to Us t that he could not be said to have properly resolved the issue unless there is shown on the recrd a careful and cowidered analysis of all the sorr-nding circumstances of the crime being tried 0 We would, for example expect to find on the record questions such as the olowi posed and resolved by him; the time the witness had the accused under obserratin% the distance at which he observed him; the conditions in which such observation iccjrred 1 fo.t' instance, whether it was day or night—time, ithether tb.o.ro war. gj4 c p-or iijhting at the scene; and ±'urthez' whether the sithess knew r had seen the accused before or not By all anou s t1e i.rióident happened at 11O(> night.-time, then how did the witnesses manage to identify te apl1* under such conditions2 When the bandits came to his rom PWI climbad to the ceiling, going into hiding. He added - u1 managed to see them. There was light of chimney lamp. They were five I managed to identify 3 of them. They are Mwita Muhere (who had a gun) Ibrahim Muhere (who had a panga and rungu) and Mujujuka (who had a panga and rungu) When cross—examined by the first appellant, PW1 stood from by his • e•• S40 •

account, There was light from a lamp in the room and he was light from a lamp in the room and he was observing them from the ceiling assaulting his wife who apparently surrendered to them Saha. 100 1 000/, pwl was ordered to climb i.ewn from the ceiling and he obliged whereupon eh was attacked and sustained injuries as indicated in exh. P1 the medical report which showed that the injuries were inflicted by a sharp and blunt object. PW1 had out wounds on the head appDoximataly 3 Cm long X 2 cm deep and Ya cm wide 0 It is my considered view that PWI with the aid of light from a lanp had enough time to observe the bandits from the ceiling and when they ordered him to climb down from the ceiling. PW3 Sadiki Jumaime corroborates in material respects the evidence of pWl as regards the breaking of the house and the rooms by the bandits, He continued - 'They threatened me and staX'ted to beat me 0 There was enrugh light inside 0 I could identify three per..ple, These Mwita Mhere mdogô wakefl and Mijujuka Q 1'4wita Mhere is there (1st accused) He was armed with a gunç I saw it. The mdogo wake Mwita Mhere is not here, He had a runga This witness had the bandits under observation for twenty minutes and there was enough lighl in his room e The identification of the first appellant at the scene of the crime was made by PW1; PW2 and PW3 who had known this appellant befre There was also light from lamps in their respective rooms Under the circumstances, I am satisfied beyond reasoxable doub that there was no mistake in the identification of the first appellant as one of the armed bandits of the material night. What about the identification of the second appellant? He was identified by PWI in his room under the same circumstances as the first

9. apeUant. When PWI was crosexamined by the second appellant, this is what he said - ;y u are a businessmai like me. You do sell at the shrp of your relatjve You entered twice inside my house i.... " Tbi.s dV that PW1 kaewtbw oon3 apeUant before4 Thoy jpe tot jatra=ars to each other. Equally pW2 knew the second appellant before. He said .d ring cro.ss—exam±nattrn -. I have no relation with you* knew you earlier, I am a witness, I saw you in my PW3 also idaiti.iied .the.sccond appellant. Cn the evidenoe °f theso ty I there was no miste in the identification of the appellants. They were the baicit br trued while armed in the rooms f these uitnassos and robbed prf bo longing to PW1. The ar-T ,;,als by tho £trst and ecr'nd appellants are accordingly dismissed They were sentenced to thirj 76- s xq jie.1t each with twelve (12) strokes nf the cane I cannot interfere with the ctdial sentencei It is the prescribed m.snten (See CAT riina1 Appeal No. 1f7 of 1995 uzrejrt.e4.> As stated before the appeal against the third appellant, Thomas Manyama is allowed and I do hereby quash the conviction and set aside the sentence imposed upon him 0 He is to be released forthwith from custody unless otherwise lawfully destained. It is so ordered, H. R. NSEKELJA JUJXE 26,10.99
'To - Dates 15/11/99 Coram: B. M. K, ID'XiLa - DR For Rubiic: Mr. Rwabuhania - S/AttrLrney Appe].laxits: Absent they are does not wish be prgent B/B: MUk N. rc1. LThdv 19 nt teX'oci in Ch3bEWO this i5th Clay ( Nrvember, 1999 in the presence rf learned State attrrriay I*a 3wabth 3. absence rf the appeUait who opted tc, be absent. T IkZA B • N. K, I'LA 1511119q DITP-XC BXTAR T r&ir CeiltiXY "hkat i4ix i.3 a te GrP G jJ MWNZA

Judgment

4 - PW3 Sadiki Jumanne does not mention him at all in his evidence. Apart from the statement of his wife 1 even then of doubtful evidential utiily there is nr other evidence linking the third appellant with the robbery. In admitting thp statment, the learned Resident Magistrate purported to invoke section 31+13 (2)(a) of the Evidenoe Act, This Court has held that, and I respectfully subscribe to this view that In order for a statment to be admissible under that section all the conditisons laid down under S. 3413 (2) that is from (a) to (f) must be met 0 (See; DPPvCoanchaLT987 TLR 127 at page 128; MBCCC Ltd L982 ThR 243 at page 21+7) it is thus obvious that the conviction of the third appellant, Thomas Manyama cannot be allowed to stand This now takes me to a consideration and determination of the appeals by the first and seccnd appellants. Both of them raised the defence 6f an alibi 1 and that the conditions on the material night were not favourable for an accurate identification. I shall first tackle the defence of an alibi. Admittedly, there is no obligation o the part of the appellants to prove their defence, The first appellant in his third ground of appeal states thus - That on the date of the alleged incidence the appellant was at home the whole night and did not meet the other craccuseds This defence was the second appellant's first ground of:appeaj. mUch reads That the appellant raised a strong defence of alibi that .15

6 - defence has not been disclosed by an accused person before the prsect-. tion closes its case, iat this section means is that where such disclosure is not made; the Court, though taking coquizance of such defence 1 may in its discretion accord no weight of any kind to the defence I have taken cognizance of the defence of alibi raised by bot1i the appiUants but using ir judicial discretion, I accord no weight of any kind to the defence The last substantive ground of appeal by both the appellants is their identification at the scene of the alleged crime. The case f' the prosecution stands or falls on the evidence of three prosecution witnes, nnely ?141 Cbedi Ndakr. PW2 Amani Mohndi and PW3 Sadild Nnianno, All three were staying in the seine hise but cojj1x fent r'm$ 0 The house was broken into an the night of the 28.2.97 at 11.00 pin. The two appellants' convictici in the trial court was based on ideutiicti'n and a statement pirportely made by the wife of the third appellant. I have already discussed that this statement was erroneously admitted in evidence and relied upon by the learned Resident Magistrate iA triavictinqg, the ellants S.o what remains is the evidence of identification f the appellants. In tha ase of Wilson CUovR ZT96_7 HCD 183 this Court had this to say - Uijjhere the evidence which in1icates an accused is entirely that of identification, that evidence must be water—tight before a conviction could be founded therenn.il The appellants have strenously contended that the conditions the the conditions then prevailing were far from being satisfactory. Before I consider and evaluate the evidence, I take the liberty to extract .17.

9. apeUant. When PWI was crosexamined by the second appellant, this is what he said - ;y u are a businessmai like me. You do sell at the shrp of your relatjve You entered twice inside my house i.... " Tbi.s dV that PW1 kaewtbw oon3 apeUant before4 Thoy jpe tot jatra=ars to each other. Equally pW2 knew the second appellant before. He said .d ring cro.ss—exam±nattrn -. I have no relation with you* knew you earlier, I am a witness, I saw you in my PW3 also idaiti.iied .the.sccond appellant. Cn the evidenoe °f theso ty I there was no miste in the identification of the appellants. They were the baicit br trued while armed in the rooms f these uitnassos and robbed prf bo longing to PW1. The ar-T ,;,als by tho £trst and ecr'nd appellants are accordingly dismissed They were sentenced to thirj 76- s xq jie.1t each with twelve (12) strokes nf the cane I cannot interfere with the ctdial sentencei It is the prescribed m.snten (See CAT riina1 Appeal No. 1f7 of 1995 uzrejrt.e4.> As stated before the appeal against the third appellant, Thomas Manyama is allowed and I do hereby quash the conviction and set aside the sentence imposed upon him 0 He is to be released forthwith from custody unless otherwise lawfully destained. It is so ordered, H. R. NSEKELJA JUJXE 26,10.99
'To - Dates 15/11/99 Coram: B. M. K, ID'XiLa - DR For Rubiic: Mr. Rwabuhania - S/AttrLrney Appe].laxits: Absent they are does not wish be prgent B/B: MUk N. rc1. LThdv 19 nt teX'oci in Ch3bEWO this i5th Clay ( Nrvember, 1999 in the presence rf learned State attrrriay I*a 3wabth 3. absence rf the appeUait who opted tc, be absent. T IkZA B • N. K, I'LA 1511119q DITP-XC BXTAR T r&ir CeiltiXY "hkat i4ix i.3 a te GrP G jJ MWNZA

Mwita s/o Mhere and Others vs United Republic (High Court Criminal Appeal No. 123 (cf) HC/CR/APP. No. 124/98 and 125/98) [1999] TZHC 61 (15 November 1999)

Judgment

Discussion

Mwita s/o Mhere and Others vs United Republic (High Court Criminal Appeal No. 123 (cf) HC/CR/APP. No. 124/98 and 125/98) [1999] TZHC 61 (15 November 1999)

Judgment

Discussion