Msenga Mwashiuya and 2 Others vs Republic (HC Criminal Appeal No. 82 of 1998) [1999] TZHC 369 (12 November 1999)

I AT MBEYA HIGH COUR'J. 1 CRIMINAL APPEAL NO. 82 OF 1998 (Original Criminal c~~~Nt 1·2 6r'1998 of r'ibozi District C•urt at Vwawa · Before: J .L._ L1,1pnza, '7, Snior ])/Magistrate)

1. MS:ENGA MWASHIUYA) Z:EFANIA SIAM.E ) . Af,PEI,LANTS 3 •. EMMANUEL MGODE ) Versus THE REPUBLIC · ••••••• · ••••• ~ · •• •.;" •• .; , RESPONDENT ,JUDGMENT !'iOSliI ~ J. 'l'hree persons, Nzenga Mwashiuya, Zefania Siame and Th1rnanuel Mgcide, · hereinafter -called the first, second .and third appellanf re.spectively 1 were • ..... • . • ~ r·------ . 1 jointly- arraigned before the ditrict court 0f J'lbozi at Vwawa on one count· •f , Armed Robbery, contrary to sections 285 and 286 of the Penal Code.. 1 rhey were convicted as charged and each sentenced to the statutory imprisonment term bf thirty yearso The conviction and sentence aggrieved them I hence this appeal which was unresisted by the Republic and heard in the absence of the appellants who had.opted not to enter appearances. ,',.j .' .. t During the night of 1.298 the bar of Bramsiden Sichone (PW1).at Mbozi ,, Mission hospital area and its-vicinity did not have electricity before 1100 pm. ·-;. . . Light was · from chimney lamps and candles. 1 rhere was· moonlight outside. Shortly .. ··-. : \ before eleven three armed robbers arrived at the bar. The bar night watchman, .·,. Shauri Dulle (PW2), saw them. At' that tie a bar maid, . Christina d/o Nzunda (HJ4), and a bar attendant, Moses Nzela (PJ6), emerged from the. bar. PVJ4 was not feeling well and PW6 was escorting her home •. They found the three robbers outside the':'bar. ··They exchanged greetings. They claimed they were familiar with the three persons who were regular customers ··at the bar and lived· in same neighbourhood. 'l'hey claimed they iden.tified the·· three persons. PVJ2 made the same claim. The;Y w:t:e the first,· the second, and the third appellants 1 who were .00000000000~

... ,·2 . ,:.: -~ arme'c1 with a gun,.,a panga and an iron bar respectively. FW4 and PW6 proceeded f ,, _,;•, wit~ their safari, 1 :l;o tne house 'of HJ4. th4 bar. ' I aptpellant f I o:q, duty. first appellant then ,fireit in -the· aii' and the three ·of them entered ' :! .; f"' ;;, ,. 'rhe fi:cst ai;pellant stationed him.self at t_he door while!the second went to the counter where a bar attendant, }';a;shaka}:lkisi (PW3), was The third appellant began to' reiugh · up sornei'customers who were being sirved by a bar maid, Happy d/o 1;waser1ga :<'.5)" ,,,.,·; 'I'h appellrui.ts were uncamouflaged and F1;J3' and f\15 'saJ/ 'thn1 and recognize,d them as their bar C1,lS,pmeI\S they knew well. At that moment in time electricity carne back. Ti:1is appeared to ,have, ta,'l{en .... the appellants unawares who Here then clearly seen by those present. 'l'he second a 1 Jpellant got from the counter a five band radio cassette make .:ionny and cash shs.110 1 000/::::: ,:from, Hv3,;, : '!'he appellants then lf'.'.G: thfJ,ar :. ·- ·. · .. , - :, : . '. .. _ · .... ;;. . ... ,.. ·: ·.. .. '. . ,('._ .. 2-· - . .., . ' ' -: :- and disappeared. ., ii'he ... , - - owner of the bar (l?',11) was notified by Hv2 in no time and ·i' . '. . .. ( -~ , . ,·; :·, ': ,' ._-. ·-. . ---i .... .•.:... .. '-- he arrived at the, bar o He found rptn glas,s and plood around. • • •. ,,:· .- • .1 ',. '·,.) .'.' :-:-.-,,, ---:. .:·J..: 'I'he al')pellants were mentioned to him ~ and he reported the ncident at._ Vwawa police station.· ·,. • ... _ • .- . ·-- • :·· .i .;" ;· :_ • _: . : ... • :· Early in the morning (2o2,,9) D/,Cpl .Bdward (PW?) arriveq, a~ the bar and picked up a spent bullet ptixt A) outsidi3 t]1,e bar. , 1'he t_hree appellant~ we_re arrested·that same day ..,,,the first appellant at a pombe shop, the second appellant at home at 10.00 AM, and the third appllant s1,t J1.00 AN. In their A• •• • • •• • • defences at, the rc:(l they denied involvement in the crime generally. The third . . ·. '·- .• • appellt ,Faim8, he was sent to lbembwa Tanzania Assemblies of God church on t4e. 9-ay of tlle incdent, but as rightly found by the trial court, he was already back. and. around a.t the material time of the crime. 'l'he appellants ' . •:, . .- . •· .. conceded that tey were we,11 kpown to the witnesses and at the bar where they used to visit often. 'l!he only one ,issue upon which. this appeal nws,t st.and or fail is whether or not the appellants were properly identfte;o,,•,, 'l'he eY:id,e:nce ig1plicating the / appellants with the charge preferred agat,iy,t_. hem WE!,S en_;i:_ely of visual identification,,,aii:d,it was during the :night., 1 ft is ap established principl of law ,that no cotmt 1 e;hould -,act o~.:S¥,ch eviden,ce unle$S. E;ll po.ss:iJ?iliti,es of :. ' . :: : • •. . . .. '." ~ ', ·1. -·, ,: ' mistaken identity are eliminated and the court is fully satisfied that the •000110000000001JgOo•• /3

J 3 evidence before it is abaolutely waertight•- SEE, for instance, the Court of Appeal decision in ;Jaziri anv. ] (1980) TLR 250. ;rhe ra.tionale for this is that much evidence is notoriously subject to error and has often led to a miscarriage of justice. 'rhe learned state attorney, Mr. Nangela, declined to support the conviction I ,. of the appellcfuts on the ground that the appellants were not sufficiently I identifiedo I would, with respect, disagree with him. In the circumstances of this case I would agree with the trial court that the three appellants were properly and sufficiently identified. '.['he five identifying witnesses (Pid2, PW3, PWLt, PW5 and H,J6) were very well known to thQ appellants. The appellants were not only their fellow villagers but they were regular customers at the bar. There were no grudgeq. 'l'here was sufficient light around. The appellants were not camouflaged. There was exchange of words. There was time for the witnesses to have properly seen and identified the appellants. The witnesses mentioned the appellants immediately after their departure. In these circumstances I could find no peg on which to hang a reasonable dcubt as to the identity of the appellants. In consequence, 1 am satisfied, as was the trial court, that the appellants were properly identified and that they were the culprits. 'I'his appeal, therefore 1 stands dismissed in its entirety. ... A'"i' J\JB:S'YA. 12 November 1999 • .For Appellants Absent, unre1')resented. For 1/epublic~ Mr. Nangela, 3. Ao B. f·. !''JOSHI JUDGE •