Juma Asajile and 2 Others vs Republic (Criminal Appeal No. 27 of 1997) [1998] TZHC 2308 (30 April 1998)

! .) -"--- .t c. '.~ M,;;c•r -,---, .\ \ ·.·\ \ . \ ',) ··1 \ '('Yii) PJG:/:-:AOF TANZANIA ,,· \ 0RII;\nrn.L APPEPi NO~ 27 OF 1997 :\c,\ 28/97 and 29/97 ., \ ( Originating\ rlm i;beya. District Court Criminal · '\ \ Case No, 849 of 1996 \ \ Before AoM, ',Sa~ 1 lum - Senior District l½a.gistra.te) \ '\ ·\ '·\ 1 o Jl.H!i.A ASAJITuE ) ··\ 'k, 2 0 EZEKIA vJILLiilf'.) ►, • • • • • • • • • • • • • • AJ?PELL.l\JWS 1\ .\ 3o DANIEL LA!·tEq~ }\ \ \Versus ·\ \ .,.,u.,,, RT~, -u·'UBLI 1 " ... \ '\ ,.,,,,fPQPD·;;'.Nm, 1 ril:., _ J.;.J..L- V o Q- ,1 o· ._ o o b o ..., n .:> o , a '°' o o o o o J:"i.CJh.l . 'i .....i i ..L ..,...tt•i-=-; '-""' -"r-\ . ...,--.,-;,o. •·-c,_·..,.=.m---- •\ ·~ \ I \ ),, Inn1MENT r~~ ',\ 1\ h"OSHI J ' \ ') ~~l...:;:..!. ! 1\ \ \1, the appellants in these three a,ppi3.ls, Juma. Asajile, Ezekia William and '/ . '\ 1,\ '.1 Daniel Lameck, were jointly indicted b)fde the district court of Mbeya as '\ ';\ UJr£ 1 .t:i£--irt and :~~~2}19. accused.s respec\i vtly 1 for 8rievous harm, contrary to section 225 of the Penal Code. 'l 1 hey wer,e, 'i:after & trial, convicted as charged ·\ ..\ . ~ ~ and each sentenced to two years irrtprisonnfn-il\° They felt aggrieved by the '\ \ conviction and sentence, hence these appecps~\ '( ' \ '\ ..... 'i.'he .f.J.E..t and ,tl:J.j.rd. appellants died p Prison br: fo:"'3 tl- 1 '" :.r appe3.ls were ' I,\ \ '1\ heard, so their appeals abated in terms of ,t;;ct/on 371 of t:t.,_ C:r imirn:.\ F'rocedure 1\ \ \ \ i.ct 1985. 'rhe second. appellant, Ezekia. Will\an1 i\ entered an appearance before ·, ',. me and argued the appeal himself which was reisted by the learned state attorney 1,\ ',\ for the Republic, Mr. l'iulokozi. '\ ·.\ \ Ha:i;'ison Shitiadi PW1, Oditari Hambomalini\PW4,, and China Swila PW3, were i\ \ employed at Isanga Club as pombe sellers. During t)1e night of 5o 1-; 096 PW1 ·and '\•, \1 , '·;\ PW2 were slling pornbe while PW3 was collecting cl,ub 1 \fees.. At about 8.oo pm .',\ ·\ the three appellants entered the club. ,_I, \ They were 'i.l.na±:med and declined to order . \ ' pombe when approached by P\41. There were many pear.ii...-:• around and tney stayed . '\ \ ( •,\ there till closing time. '.I1he appellants did not q1 'irrJ'iiJ. with anybody there. '\ \ Came closing hour and people began filing out of tne {lti,.- · \ \ \ \ \ \ · l \ '\ \ '\ ·~ '\ /2

2 \Jhen PW3 arrived at the door of the club the second appellant came to him m nowhere and cut him with a panga. he held on the left hand palm without a. 'rhe second appellant was with the first and third appellants. PW1 and there and saw what was happening a The fir.st ,appellant 1 to PW1 and 3, held a knife with a piece of wood while the third was unarmed. 'l'he story as given by PVJ2 was, however 1 different. According to him it was the first appellant who held the panga with which he cut PW3 on his left hand palm whilst the second appellant held a piece of wood and the third appellant was unarmed. P,t,.11 and E-./2 tried to assist PW3 but in vaino There was comn1otion followed with a big fight., It was, according to PW2 and PW3, as if everybody a;round was hitting the other. 'rhe appellants managed to escape. The condition of the night was not given.. '1 1 he circumstances in the club and at its door were not given. It v:as only HJ2 who said: ;,It was a night time thus a light wa.s not clear, it might be that second Etppellant had nnother weapono ' 1 The second appellant was not described. PW3 sustained a. wound measuring 4¼ inches long and A an inch deep on his left palm Hhich was classified and recorded on a The second appellant raised the defence cf alibi .m l,,, ,, s•,.;, n ,·e;:;nce at the trial. On the day of the incident he was engageC:. hf o JP A..:. :..in 1'' .::- lukonyole D/5 to unload corrugated iron sheets from a. lorry at DW5 vs place and at another place in Iyunga area. The task took him from 5.00 pm to 9.00 pn. He was with the third appellant and one Amos Donald DW4. They were five persons including As rightly pointed out by the learned state attorney, the pr·osccution case centred on the.identification of the second appellant at the scene of crime. The one issue upon which this appeal must stand or fail is whether or not the second appellant was properly identified. 'I'he evL;_ence implicating the second appellant Viith the charge preferred against him wu:. entirely of visual identi- fication, and the conditions fa.vouring a correct identification were I as I shall /3 j

.. L, \ ::- 3 - demonstrate~ difficulta It is an established principle of law that no court should act on such evidence under such circumstances unless all possibilities of rnista.keri identity are eliminated and the court is fully satisfied that the evidence before it is absolutely water-tight - SEE .'?..h_}?iE .... _endo and iu:iot,l..Y_._!..!. (1953) 20 E.A,C.A. 166; and Wazj,F~..,,...V-•. (1980) TLR 250• The rationale for this, as pointed out by the Court of ippeal in hl?-:J...lj.~ as. 1 is that such evidence is notoriously subject to error and has often led to a miscarriage of justice. It has also been held on a nuthber of occasions tha.t in cases of identification of an accused there should a description of the person that is said to have been identifiedo This often enhances the weight of such evidence - SEE I:1~:l'°1.§me.9._.AJ,Ji_.-~~ (1942) 9 E./...C.J-. 720 In this case 1 the identity of the second appellant as one of the culprits was made out by the evidence of HJ1, f'lcv2 and PW3. But; with respect to the learned state attorney, that evidence was unsa.tisfactoryo:. The incident happened a.t night, partly out in the open, and under poor light from un,,"1amed source a H·/2 confessed that the light was not clear and proper vision was difficult. The encounter was brief and it was tainted with much havoc and confusion. The circumstances, therefore, did not favour a correct i.dentificat:ion Besid,,s ~ none of the three witnesses gave any description of th:: .c,cGo~; ap_r"l1 '. 0 :i.t which could have given weight to their assertion that they identi:f:'~.e-:d tLe .s ,rnnd appellant o 'I'ha.t the conditions were unfavourable to a proper and unmistaken identification would explain the contradictions and discrepancies in the testimony of the _three witnesses. 'l'he purpose of poin:ting out contradictions and discrepancies in the testimony tendered by the prosecution is to weaken their case ari.d to create doubts as to the guilt of an accti.sed per.::::cn9 'I1heir effect would depend on their seriousness and. materialitya I am satisfied that the discrepancies in the evidence of the three witnesues were serious and material and that they detracted from their identification e-1.:.denceo For the foregoing ~ , . f. d , h t h . d t. f. t. . t watertight reasons, l. am sa-cis ie i:: a t e i en 1. ica ion evidence was no · . ·. u·:1 as it did not rule out all possibilibss of mistaken identityo e • o o c o o o o , ~ o /4

4 - Before I conclude, there is one aspect of the case touching on the defence of alibi of the second appellant upon which I feel bou17:d to commento The trial magistrate fo~nd that the .second appellant had not complied with the provisions of sections 194(4) and (5) of the Criminal Procedure Act 1985 1 hereina.fter 11 Bo he invoked the provisions of section 194(6) of the Act and

• I 'I found. the defence of alibi, to use his own words, · 'to t'e not of such weight which can break the truth of the evidence of the prosecution.i t<I:i.th respect; it was not the question of that defence breaking the ttuth of the evidence of the prosecution .. The discretion the trial magistrate had under section 194(6) i• of the Act was to accord no weight of any kind to that defence in case of non-compliance with section 194(4) and (5) o But tha..t discretion ought to have been exercised judicially, which was not the case here. 'rhe procdUie set out I under section 194(L~) and. (5) of the Act is technical., 'l".he second appellant was unrepresented by learned counsel, and had n111t had any lgal advise. In th! :1 circumstances the trial court should have brought that procedure to the notice of the second a.ppellanto I would go further, and. say that, as the second appellant was unrepresented by counsel, it was the dutY'.' of the trial court to 'I I explain that procedure to him .. \ve had here, therefore,.! a ce.se of failure by the trial court in its duty to assist an accused person unaided by counselo The failure did not constitute a :proper and judicial exercise ,--,f' discretion on the part of the trial court, and I arn satisfied that the secona appc.l:a11:L, was entitled to have had his defence accorded the attE::ntion it deserved. As a. matter of law, an accuseJ. person is not required to prove his alibL It is sufficient for him if the alibi raises a reasonable doubt as to his I cor11plicity in the crime - B:8Z .f,J.J....Ea+}t .. J'L 9 .t1:l__~Ren..J.jc ( CAT) ( 1980) TLR 1. ·,, In this case, the second appellant did not only raise tha.t def ern.;a of alibi, but brought evidence in support of it.. In my view? that defence, prope:r-ly considered I• in the light of the unsatisfactory identificatiG'.'.l evi Jenee, was quite plausible and capable of raising a. reasonable d::mbt as ·co t.he g1ilt of the sesor..d . I appellant. OOOOIJQOOOOO Ir:::. ' ../

I accordingly allow the appeal, quash the conviction, set aside . ' the sentence, and hereby order the immediate release of the second ,- ..... ,..,__ ' '@ii,i;n;;·~~a William, from prison Unless otherwise / ~ •• <- .f". ~ , ., . \, (,•/ ;.·' ' l:tJ ,;:'I_ l // (:; ,., ! ~~ :-- lawfully held,. " · B,P, iiOSHI For Appellant: Absento Fo.r Republic~ 1'½r., Nangela., S.1-l.. I CEJ?rrn mAT Tilis rs A TRUE COPi OF THE ORIGINAL.