Mathayo Igokelo @ Kipala & another v. Republic, Cr app no 62 of 2005 (robbery with violence)

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA

(CORAM:   LUBUVA, J.A., MROSO, J.A., And RUTAKANGWA, J.A.)

CRIMINAL APPEAL NO. 62 OF 2005

1.  MATHAYO IGOKELO @ KIPALA

2.  MATHIAS CHARLES @ IGOKELO……..….… APPELLANTS

VERSUS

     THE REPUBLIC ……….……..……………….…. RESPONDENT

(Appeal from the Judgment of the High

Court of Tanzania at Mwanza)

(Mihayo, J.)

dated the 14^th day of May, 2004

in

HC Criminal Appeal No. 18 of 2004

-------------

JUDGMENT OF THE COURT

7 March 2007

MROSO, J.A.:

        The two appellants were found guilty of robbery with violence by the District Court of Geita District and were sentenced to a prison term of 30 years.  Their appeal to the High Court (Mihayo, J.) was dismissed.  Not giving up, they have appealed to this Court.  At the hearing of their appeals the appellants fended for themselves.  The first accused at the trial is the second appellant in this appeal and the second accused becomes the first appellant.  The respondent Republic was represented by Mr. Feleshi, learned Senior State Attorney.

        Both appellants filed a seven ground memorandum of appeal each.  The memoranda of appeal were clearly drafted by a lay hand and are not easily comprehensible.  It can be gleaned from them however that three substantive complaints are being made.  First, that the evidence of identification was too weak to found a conviction.  Second, that the prosecution witnesses gave conflicting evidence.  Third, that the trial court took into account a conviction of the appellants in another case to bolster up the case which led to this appeal.  Before we discuss those grounds of appeal we think it desirable to give a brief account of the case which led to the appellants being convicted of the offence charged against them.

        During the night of 10^th/11^th of October, 1998 bandits broke into the house of one Mathias Ezekiel (PW1) at 01.00 hours.  On entering the house the bandits demanded to be given Tshs. 120,000/=.  PW1 told them he did not have that amount but only Tshs. 60,000/=.  They struck him with a panga and beat him up.  His wife gave them the money.  They took it and also stole other things from the house like a pump and a panga and vanished into the darkness outside.  Alarm was raised and people responded and came to the scene.  A search for the culprits was mounted.

        Nine days after the robbery the second appellant was arrested by the village peoples’ militia, popularly known as sungusungu.  The first appellant was arrested twenty days later.  They were subsequently prosecuted for the robbery, convicted and sentenced as mentioned earlier in this judgment.

        Both the trial court and the first appellate court seemed to find that there was reliable identification of the culprits.  The trial court considered that although the offence was committed at night, there was a lamp in the house and that PW2 had used the lit lamp to show the bandits where the money was kept and, presumably, they were identified in the course of being shown the place where the money was kept.

        The first appellate court was also satisfied that both PW1 and PW2 identified the two appellants with the aid of what was described as a lantern lamp.  It said:-

“What are the conditions for favouring identification of the appellants here?  (i) They were not strangers in the village. (ii) There was lantern lamp and a torch which was on and was used to search.  PW1 said he did identify Mathias Charles with the aid of a lantern lamp and torches that were flashing around during the search for the money box.”

Then –

“The trial magistrate addressed the issue of identification and found that there was enough time for PW1 and PW2 to identify their attackers  …  It was not a very sudden raid”

        Both courts below considered that the claim by PW1 and PW2 that they identified the robbers to be the appellants “found support” in another case, Criminal Case No. 198/98, in which the appellants were convicted “in almost like circumstances … the same persons were identified by the complainant and his wife”.

        With all due respect, PW1 did not say in his evidence that he identified both appellants.  What he said is –

“I was able to identify one of them.  This was Mathias Charles”.

The witness said he was able to identify Mathias Charles

“because they took one lantern.  They flashed torch at the sitting room I was then able to identify him”.

Also, when cross-examined by the said Mathias Charles (second appellant) this witness said he identified him because –

“There was light of a lamp in my house”.

        As regards PW2, she never said in her examination in chief that she identified any of the bandits.  It was only when she was cross-examined by the first appellant (the second accused at the trial) that she said she saw him.  In her own words she said –

“I know you because you invaded us.  On that day I saw you at 01.00 hrs.  You had a panga and a torch.  You lit the lamp yourself”.

When she was cross-examined by the first appellant (the second accused at the trial) she said –

“When you got inside the house the lamp had been put off”

which would mean that when the bandits entered the house there was no light as the lamp inside it had been put off.  She did not say specifically that she recognized or identified him.

From the evidence of PW1 and PW2 therefore, only the second appellant was said to have been identified by both PW1 and PW2.  The first appellant was certainly not identified by PW1, and PW2 did not say she identified him.  The only reason why the two courts below found the second appellant guilty of the robbery charged in the case was that the same trial magistrate

“found support from a conviction of the same people, in almost like circumstances in another criminal case No. 198/98 where the same persons were identified by the complainant and his wife”.              

What the courts are saying in effect is that because the two appellants were convicted by the same trial magistrate in another case involving the same complainant and wife (PW1 and PW2) then they must be convicted also in the case now under appeal.

During the trial of the appellants there was no evidence that they had been convicted in another case in which PW1 and PW2 were also the victims.  We are not even told when that other offence was committed or the nature of the offence involved.  Such evidence if it had been given, being evidence of character, would not have been admissible in the case now under appeal as it would offend the provisions of section 56 (1) of the Law of Evidence Act, 1967. The first appellate judge called it “imported evidence”.  That description was not apt enough.  Rather it was an irrelevant and prejudicial imputation of bad character on the appellants.  Bad character in criminal cases is relevant in very restricted circumstances.  It would be given as evidence if an accused person has adduced evidence of his own good character or, after conviction, for a proper assessment of the sentence to be imposed on the accused person, or where bad character is itself a fact in issue – See Section 56 of the Law of Evidence Act, 1967.  We think, therefore, that the two courts below                       erred in referring to an alleged previous conviction of the appellants when considering the guilt or otherwise of these appellants.  We now wish to go back to the issue of identification of the bandits.

We do not think the evidence of identification in this case met the test in the celebrated case of Waziri Amani v. R. [1980] TLR 250.  In that case it was laid down that no court should act on evidence of visual identification unless all possibilities of mistaken identity have been eliminated and the court is satisfied that such evidence is watertight.

In the case under appeal, PW1 claims he was able to identify the second appellant because of lamp light in the house.  But PW2 said they had put out the light from the lamp and that it was this appellant who lit it.  PW1 had also said that the bandits “flashed their torch”.  Now, if, as said by PW2, the light from lamp had been put out and the bandits had a torch, why would the first appellant light the lamp to facilitate his own identity when he or his colleagues had a torch which would enable them to see things in the house and disable PW1 and PW2 from identifying them?  With respect, we think that the claim by PW1 that he identified the first appellant by the aid of light from a lamp in the house is highly doubtful.  PW1 and PW2 would not have been able to identify reliably the intruders because of the torch or torches which the bandits used.  In the absence of clear evidence, commonsense shows that usually the user of torchlight would be enabled to see things in front of them and not those on whom the torchlight is directed to see the user of the torch.  Therefore, there was no cogent evidence of identification.

As mentioned earlier in this judgment, the appellants were arrested 9 days and 20 days respectively after the armed robbery was committed.  No explanation was offered why, if the second appellant was identified on the same night the offence was committed, it took so long to have him arrested.  This is yet another factor which casts a shadow on the already weak evidence of identification.

We believe that had both the trial court and the first appellate court considered the case in the manner we did they would not have found that the charge against the appellants had been proved.  Mr. Feleshi, learned Senior State Attorney, did not support the lower court decisions.

We, therefore, allow the appeal by quashing the judgments of the lower courts, set aside the sentence of imprisonment and order that the appellants be set free forthwith unless they be held for some other lawful cause.

DATED at DAR ES SALAAM this 30^th day of March, 2007.

D.Z. LUBUVA

JUSTICE OF APPEAL

J.A. MROSO

JUSTICE OF APPEAL

E.M.K. RUTAKANGWA

JUSTICE OF APPEAL

       I certify that this is a true copy of the original.

( S.M. RUMANYIKA )

DEPUTY REGISTRAR

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