Samwel Mwandamele & Another vs Republic (HC Criminal Appeal No 15 Cf 20/95) [1998] TZHC 2520 (18 September 1998)

IN THE HIGH COURT OF TANZANill . . c•,-J~ 1BEYA . . °iITGH COTJRT CRIMINAL ,_,APPE:[-1.L . NO •. 15 CF 2 0/95 (Original Criminal Cae No. 165 of 1994 of the · · Disfrict'JCou:t-t' of Mbeya .Distric.t at Mbeya .---Jf•.i::: ::.: ."':;-t/..: :··\•.i-- •.. ·.: . . ,,. 1 & SAMl.vEL MWANDAMEU: .. ").. . . ·, . .--,· 2:.... . su:rmA; MWANDENG_Al'rf A ) ••• ~ - : •• . . . . . ~ .. . ;.. : . APPELLANTS Versus .. THE REPUBLIC·.· .. .-.·. 0 ,,: i, -:.·.: -. 0 •. 0 0 O O 0 RESPOi'IDENT JUDJMENT. · 2§1-g_,_ ~~ The .f2:rst. and the !3.snd appellants, Samwel Mwa.ndarnele .(/fth accused) .-.,, ·,··. and Suga ?1,,.randenganya -· ( 1st 'accusd), were indicted before,'.the -district court:. of Mbeya jointly 1ith :three other persons:-who were ·acquitted, Anyandwila ,K?;s1lmda Kati ti (2nd accused), Tcih.n· Masa.nja (3rd ·accused) s and Lusanjo Kyomo (5th accused) for Armed R6bbery, contrary to Sections 285·artd 286 of the Penal Code, as . . . amended by Act No. 10 of 1989. They w·ere convicted as charged and each sentenced to'· the ·.prscfr.ibed Minimum irnpr_it3onm·erit -term of thir"b_J-years plus twelve strokes of the cane. The conviction. and sent-&n·cej,i.ggrieved them, hence these two appeals which were consolidated. On ·2306.98 the second appellant's appeal abated in terms of section 371 of the Criminal Procedure Act 1985 upon information and proof that he had :t .. ' . ,: : . ;: . :. . .. · ... died in jaiL This was before the appeals were heard, so only the first appellant's appeal was heard in the presence of the first a.ppellant,_Sarnwel _ Mwandamele, who told this Court that he abided by the grounds of appeal he filed. The. learned state attorney wh• appeared before me,· Mr. Mulokozi, declined to resist th~ appeal. : •·.· • .1 Baltazer Mashuda (PW1) resides and owns a grocery at Mwanjelwa area withi..YJ. Mbeya Municipality in which he sells beer and soft drinkso During the night of 28.1·.9~ at about 10.00 pm he was __ at the grocery with two persons . \ he called his assistants and at the same time his custom~rs. They did not r .i

• 2 ;_., testify o He sat at the counter.· There was a radio at the coter. F01,ir ... , .. ) ·' . persons entered the grocery and ordered the two custome:rs to lie down on the floor. T'ney coY1.1pliedo One held something resembling a hand grenadeG One -- . . .. went to the counter where PW1 sat. He grabbed the radio :intending to take it away. But PW1 resisted .. A struggle for the radi between PW1 and that person ensued. PW1 claned to have identified that person as the second appellant. The two customers revived from the :L.'1.itial shock and went to the counter in aid of PW1. There was confusion all around. PW1 also claimed to have identified the first apJ)eliant. But he did not say how. There was light from an electric bulb. The four personq failed to get the radio and walked out of the grocery. IJ..,hen an explosion was heard outside and they disappeared. Then PW1 found out that shs:6,000/:: was m1ssing from his pocket. A report was registered at Mbeya central police station after the c1.eparture of the bandits and ·the District :c.J:.:n ... Officer, Haruna Ibrahim Bachubila (PW3), led a group of armed policemen to the grocery that ,same night. PW3 was not told of any suspects. On 315.94 Assistant Inspector Deus Kato (P\t/2) held an identification parade. It comprised of 9 persons, among them the first appellant. The first appellant was in remand· custody. It was not said for whato PW1 was then brought along and allegedly identified the first appellant. PW2 did not say how the appellant was identified. The identification parade register PF 186 (Ext P1) is also silent about this, It simply says Hidentified.·,; •·- The first appellant denied involvement in the crime in his sworn defence a.t the trialo He is a re_sident of Tuku;y1 as a farmer. On 295 •. 9L~ he arrived at his sister 1 s house at Hw<;1njelwa Hbeya. On 30.5094 at__8.00 pm he .was in the . .. . ~ . . ! house listeniJ1g to· her;radio~ Arm.ed policemen knocked and entered, They asked for the mmer of -the radio. She replied it was hers. The;sr told him he had stolen it. ·They took him away with the radio. They be"at him on the way to police stafion. They injured him. The next day (31.5.9L1-) they gave him a Q O C) 0 0 " 0 0 &// 3

,... .., - 3 PF 3 (Ext D1) for treatment. Later they took him to .the identification parade. They then charged him in the offence of second appellant. This appeal must stand or fail on only ne issue which is whether or not the first appellant was properly identified by PW1 who was the only identifying witness. The. evidence implication. the first appellant with the charge preferred against him was entirely of identification, and it is a settled princi1le of law that such evidence must be ;abgolutely watertight to justify a conviction.. In this case, I respectfully agree with the learned state attorny that the identifying evidence of PW1 was far from being wat.r:-:- tight. The conditions, -s already fully described, were difficult for a proper and unrnistaken identification. .It was during the night. The encounter was sudden, brief? and under a poor gleam of an electric bulb. PW1 did not come face to face with the first appellant They had never met before. He did not mention him to PW3 i-Jho arrived there shortly after the incident. There was havoc and confusion. This was the case of a single identifying witness under difficult conditions. On this the Court of Appeal for Eastern Africa said in Abdallah bin l'/endo and Another v.P.. (1953) 20 E.A.C.A. 1966: -.. ... ;.....,. _____ ,A ........ ~ ..... - .. - ......... __ .,_ ......................... , ... - ..... ··• ~ •• .-•...-.-=,. 21 Subject to certain exceptions, it is trite law that a fact may be proved by the testimony of a singJe witness, but this rule does not lessen the need for testing with the greatest care the evidence of a single.witness respecting identification, especially when it is known that the conditions : •. favourfog a correct identification were difficult. In such circumstances, what is needed is other evidence, whether it -be:circumstantial or direct, from which a judge or jury can . ··. ,, . reasonably conclde that the evidence of identification 9 although based on· the'testimony of a single witness, can safely be accepted as free from the possibility of ··err.or.,!-1 This was not all. PW1 did not give any description of the·first app~llap.t. He did not ~ay how he had identified him. The trial court conceded this and said at page 3 of. its judgment: Bin respect of the 4th accused (first appellant) P\ 1 11 did :not say of certp.inty as to how he identified the accused n . In -'cases of ide,n-tifica tion, there should be a description of the

4 person who is said to have been \1ent.,ifiedo' · This often e:i:ihances the weight of such evidence~ On this the Court of Appeal for Eastern Africa had the .· ·. '·· . . . following .. to say in !Aohamed _ Allui v.Ro ( 1942) 9 EA.c.i,. 72, at page 73: . ' 1 Tnis cou:r-t has previously poinJed out, and we wish to .. repeat, that in every cae in which there is a qustion as tci the identity of ·the accti.'sed, the fact of ·there . having. been a description given ancl. the terms of that _ descr:Lption·are matters of the highest importance of which evidence ought always to be r;ive, first of all, of course, by the person or persons who gave the description . a1'.ld .purport to identify the accused~ and then by the person · or persons to whom the description was giveno" . . . In this case, therefore, I am satisfied that PJ1 had not properly and satisfactorily identified the first appellant at the scene of crimeQ .. n.uite obviously, the trial court had not tested that evidence up to the required standard. 'l'he question now becomes whether ·or not there was other eyid1,mce, direct or presumtive, pointing to the first appellant 1 s guilt. There was the evidence of the identification of the first appellant by PW1 at the identification parade. This was four months after the incident. For an identi_fca tion parade to be of any value at all in identifying the perpetrator of a crime under investigation, it is necessary for a detailed description of the method followed i;.1. conducting the parade to be given. The method of identification that should be followed is as set out:·fo the case of Rex Vo~ Hwang<:: s/o. Na~ ( 1936) 3 E.A.C.A. 29. Thirteen rules are set out, a.nd the whole object of conforming ,strictly to the rules on identification is to remove any chance of error. It is, in short, a precaution against error. In this case, I am satisfied that the evidenc'e of the identification at the parade was not of any valu~ ci!.:t all. First~· it does not occur to me from the ·• short description given by PW2 of the method f9llowed in conductfog the parade. that he had strictly con:formed to. the rules. :c.,'.e.~.o_l:~~' tp.e. first appellant, as I have held, was not identified by PW1 at· the scene of. crime, ,so PW1 could not have picked him out in the parade, let alone conducted. four· r:frmths later_ ••• 0 ••• 0 ./ 5 • ,-

.,. - 5 - In the circumstances, the idea of holding the parade was ridiculous and clearly . an attempt at manufacturing evidence. The learned trial magistrate, I am unhappy to say, convicted the first appellant on no evidence at all. He was satisfied that the identification evidence of PW1 at the scene of crime was tainted with uncertainty and that the evidence of identification at the paracl.e was not conclusive, and.yet he went ahead and based the conviction of the first appellant on that same evidence. With respect to the trial magistrate, it is elementary that it takes sufficient evidencej 1,o1hich is legally admissible i...'1 a court of law, to convict a person of crime. Moreover, such evidence has to prove the guilt of the accused beyond all reasonable doubt. For all the foregoing reasons, I allow the first appellant's appeal, quash his conviction, set aside his sentence, discharge him from the order for compensation, and hereby order his immediate release from· prison unless otherwise lawfully heldo AT HBEYA. 18 September 1998.- For first appellant: Present. For Republic: Mr, Nangela, S.,l'J •• ··-7'1 •.• ,, . \ ./' \ \ ,- ... ,: .• ·' \ ,;..,-:... / ---==--/;;?:ff:~_'. "··. - --------· , B.P. MOSHI ._TUiXIE.