IN THE COURT OF APPEAL OF
(CORAM:
MROSO, J. A., MSOFFE, J, A. And KAJI, J. A.)
CRIMINAL APPEAL NO. 202 OF 2004
STUART ERASTO YAKOBO.......................................................
APPELLANT
VERSUS
THE
REPUBLIC......................................................................RESPONDENT
(Appeal from
the conviction of the High
Court of
Tanzania at Mtwara)
(Kaganda,
J.)
dated the 8th September, 2002
in
Criminal
Appeal No. 38 of 2002
JUDGMENT
OF THE COURT
27 November, 2007
& 17 December, 2007
MSOFFE, J. A.:
The District Court of Nachingwea found
the appellant and two others, namely Celestine John Joseph Mandale and Raphael
Dickson Machemba, guilty of the offence of Robbery with violence contrary to
sections 285 and 286 of the Penal Code, Cap 16.
It sentenced each of them to a fifteen year term of imprisonment. Aggrieved, they appealed to the High Court
at Mtwara. They lost. The appellant has now come to this
court. The other accused persons are not
appealing. The appellant appeared in
person. Ms. Lydia Choma, learned State
Attorney, appeared for the respondent Republic.
The appellant filed nine grounds of
appeal. At the hearing of the appeal he came up with three additional
grounds. It occurs to us however, that
they all crystallize on three major grounds of complaint. That,
the evidence of PW1, and PW2 was cooked up.
That, the evidence of PW1 and
PW2 needed corroboration because they were members of the same family. That,
no positive evidence of identification was forthcoming in the case.
Before we discuss the grounds of appeal
we think it is helpful to give a brief account of what led to the appellant
being convicted as charged.
At around 1.00 a.m on 15th October
2000, PW1 John Raphael and PW2 Marisela Shaibu, a husband and wife
respectively, were asleep at their home. A number of bandits wielding machetes
broke and entered into the house demanding cashewnuts. PW1 and PW2 identified the appellant, and the
other accused persons who are not appealing, with the aid of firelight. PW1 and
PW2 further identified the appellant by voice.
Having broken into the house the bandits attacked PW1 till he lost
consciousness. Thereafter, they stole
three sacks of cashewnuts weighing 160
kgs. and fled away.
At the hearing of the appeal the
appellant reiterated the complaints in the above grounds of appeal. In the process, he urged that the evidence of
identification by firelight was unreliable.
That, the evidence of PW1 and PW2, being that of husband and wife
respectively, needed corroboration which, according to him, was lacking in the
case. And finally that, if PW1 and PW2
identified him on the fateful night it was inconceivable that it took two days
before he was arrested.
In response, Ms. Lydia Choma was of the
general view that the case against the appellant was proved beyond reasonable
doubt. It is not true that the evidence
of PW1 and PW2 was cooked up. These were credible witnesses who were at the
scene and saw what happened, she urged, citing the provisions of Section 62 (1) (a) of The Evidence Act (Cap 6 R. E. 2002). As
for corroboration, she maintained that under Section 127 (1) of the Evidence Act, PW1 and PW2 were competent
witnesses and therefore, their evidence needed no corroboration. On the aspect
of identification, Ms. Lydia Choma contended that the appellant was identified
by firelight. And that he was also identified by his voice when he uttered
words to his fellow bandits to the effect that they should spare PW2 from an
assault because she was sick.
Finally,
Ms. Lydia Choma invited us to vary the sentence and impose the statutory thirty
year term of imprisonment because it was in evidence that the appellant and his
colleagues were armed with machetes which are offensive weapons. Regarding the
other accused persons, who are not appealing, she invited us to invoke our
powers of revision and enhance their sentences to thirty years imprisonment.
We do not entertain any doubts that the
evidence of identification of the appellant at the scene of crime was that of
PW1 and PW2. The appellant in his appeal to the High Court and again in this
Court has strenuously contended that the prosecution evidence of identification
was unreliable and uncorroborated. We would like to point out at this juncture
that it is very rare that an appellate court will interfere with concurrent
findings of fact by the courts below. The fundamental issue before the trial
District Court and the High Court was whether, on the available evidence, the
appellant had been identified as being among the bandits who had raided the
house of PW1 and PW2, attacked PW1, and stole their cashewnuts.
At this juncture, we should also point
out that the evidence of identification was both visual and by voice. The law
is settled that evidence of visual identification should only be relied upon
when all possibilities of mistaken identity are eliminated and the court is satisfied
that the evidence before it is absolutely watertight. The principles to be
taken into consideration were enunciated by this Court in Waziri Amani v Republic (1980) TLR 250 at page 252. We are fully satisfied that the evidence of
visual identification of the appellant was watertight. PW1 and PW2 knew the
appellant before the date of incident. There was firelight at the scene of
crime. The witnesses stood and saw the appellant at close range. The incident
took a considerably long period of time. With the above evidence, we find no
basis in faulting the courts below in their concurrent findings of fact on
visual identification.
As for voice identification it will be recalled
that PW1 and PW2 said that, besides the firelight, they also identified him by
voice. The issue is whether voice identification is reliable in law. In our
considered opinion, voice identification is one of the weakest kinds of
evidence and great care and caution must be taken before acting on it. We say
so because there is always a possibility that a person may imitate another
person’s voice. For voice identification to be relied upon it must be
established that the witness is very familiar with the voice in question as
being the same voice of a person at the scene of crime – see Badwin Komba @ Ballo v Republic (C.A.T),
Criminal Appeal No. 56 of 2003 (unreported). (Also see Kanganja Ally and Juma Ally
v Republic (1980) TLR 270). In this case, there was no dispute that the
appellant was PW2’s son. Given this relationship we think that she must have
been familiar with the appellant’s voice and it was highly unlikely that she
could have mistaken his voice. Indeed, for a mother to mention her own son is
not an easy thing to do. So, like the courts below we are satisfied that PW2
identified the appellant by voice. Likewise, although the appellant was not
“fathered” by PW1 we think that having stayed with him for sometime he too was
familiar with his voice.
This brings us to the complaint by the
appellant that the evidence of PW1 and PW2, being that of husband and wife
respectively therefore members of the same family, needed corroboration. With
respect, the point need not detain us. As correctly submitted by Ms. Lydia
Choma, these were independent and credible witnesses whose evidence needed no
corroboration. In terms of Section 127
(1) of the Evidence Act they were competent witnesses, hence their evidence
did not have to be corroborated.
As for the last complaint on the arrest
being made after two days, we are of the view that this is not a strong point.
We say so because the crucial issue in the case was whether or not the
appellant was seen and identified at the scene of crime. Since, as already
indicated, the evidence established that
he was identified it did not matter when he was arrested.
The only point of law involved in this
second appeal is whether or not the evidence established the ingredients of
robbery. The offence of robbery is defined in Section 285 of the Penal Code, Cap 16. It provides:-
285. Any person who steals
anything, and, at or immediately after the time of stealing it, uses or
threatens to use actual violence to any
person or property in order to obtain or retain the thing stolen or to prevent
or overcome resistance to its being stolen or retained, is guilty of the felony
termed “ robbery”.
For an offence under Section 285 the prosecution has to
adduce evidence to establish the ingredients, that is whether actual violence
or threat of actual violence was used to obtain or retain the thing stolen. The
nature of violence must also be proved. Violence to the person of the
complainant is a prerequisite for the crime of robbery. There must be evidence
to establish that the accused person used or threatened to use actual violence
to obtain or retain the stolen property. The word “violence” is not defined in
the Penal Code. In Black’s Law Dictionary
(Sixth Edition) at page 1085 it is defined as:-
“Unjust or unwarranted
exercise of force, usually with the accompaniment of vehemence, outrage or fury.
Physical force unlawfully exercised; abuse of force; that force which is employed
against common right, against public liberty. The exertion of any physical
force so as to injure, damage or abuse.”
In the instant case, there is no doubt
in our minds that violence was used on the person of PW1. The appellant and the
other bandits broke and entered into the house wielding machetes; attacked and
injured his right eye; he lost consciousness and had to be treated in hospital.
In the process, they stole the cashewnuts in question. Like the courts below,
we too think that the offence of robbery was established in the circumstances.
In the light of the evidence on record,
we are satisfied that the appellant was rightly convicted by the trial District
Court which decision was justifiably upheld
by the High Court. We dismiss the appeal against conviction.
Now we come to the question of sentence.
The appellant was convicted of robbery with violence and sentenced to fifteen
(15) years imprisonment. The offence was committed on 15th October,
2000 after the Written laws (Miscellaneous
Amendments) Act No. 6 of 1994 had come into force on 18/3/1994. Section 5 (b) of The Minimum Sentences Act,
1972 as amended by Act No. 10 of 1989 and Act No. 6 of 1994 reads:-
“(b) Subject to
paragraph (ii) of this paragraph-
(i) any person who
is convicted of robbery shall be sentenced to imprisonment for a term of not
less than fifteen years;
(ii) if the offender
is armed with any dangerous or offensive weapon or is in company with one or
more persons, or if at or immediately before or immediately after the time of robbery, he wounds, beats, strikes
or uses any other personal violence to any person, he shall be sentenced to
imprisonment for a term of not less than thirty years.”
Section
5 (b) (ii) applies to all robberies in which the offender is armed with a
dangerous weapon or instrument, or is in company with one or more persons, or
where in the course of committing the robbery he wounds, beats, strikes or uses
any other personal violence to any person. (Also see Mwita Sibora v Republic, (C.A.T.) Criminal Appeal No. 49 of 1996
(unreported). In this case, as already stated, the offence was committed on
15/10/2000 when Act No. 6 of 1994 was operational. The evidence clearly shows
that there was personal violence to PW1. The appellant was in the company of the
other accused persons. They were armed with machetes. Under these
circumstances, the appropriate sentence was thirty (30) years imprisonment.
At this juncture, we have to address the
question whether or not we should enhance the sentence to thirty years
imprisonment. As stated above, Ms. Lydia Choma was of the view that we should
invoke our powers of revision under The
Appellate Jurisdiction Act, 1979
as amended by The Appellate Jurisdiction (Amendment) Act No.
17 of 1993, and enhance the sentence to thirty years imprisonment.
In the case of Herman Henjewele v Republic,(C. A. T.) Criminal Appeal No. 164 of
2005 (unreported) the appellant upon conviction by the District Court of Songea
of committing an unnatural offence
contrary to section 154 (1) (a) and 2 of the Penal Code Cap 16 of the Revised
Edition 2002, was sentenced to a thirty year term of imprisonment. He appealed
to the High Court at Songea and lost. On appeal to this Court, it was
observed:-
“ As was rightly pointed
out by Mr. Boniface, the Sexual Offences Special Provisions Act, 1998 provides
in section 16 which amended section 154 of the Penal Code that where a person has
carnal knowledge of a child under the age of ten years against the order of
nature he shall be sentenced to life imprisonment. The trial court as well as
the High Court overlooked this legal requirement. The sentence of thirty years
imprisonment which was imposed on the appellant was therefore illegal. Although
the Director of Public prosecutions did not appeal against that sentence, this
Court will not allow the illegal sentence to stand, having been made aware of
the illegality. We, therefore, invoke the revisional powers of this Court under
Section 4 (2) of the Appellate Jurisdiction Act, 1979 as amended by Act No. 17
of 1992 to quash the sentence of 30 years imprisonment and substitute thereof
the correct sentence of life imprisonment.”
And
in the case of Zubell Opeshutu v
Republic,(C.A.T.) Criminal Appeal No. 31 of 2003, the appellant was
convicted by the District Court of Mwanga of robbery with violence contrary to Sections
285 and 286 of the Penal Code, and sentenced to 15 years imprisonment. On
appeal to the High Court at Moshi, the sentence was not disturbed. On a second
appeal to this court the sentence was set aside and the correct sentence of 30
years imprisonment. was substituted thereof.
In the light of this Court’s decisions
in Henjewele and Opeshutu (supra) we hereby invoke our
revisional powers under Section 4 (2)
of the Appellate Jurisdiction Act No. 17
of 1993 to quash the sentence of 15 years imprisonment meted on the appellant
and substitute thereof the correct
sentence of 30 years imprisonment.
This brings us to the final point. This is whether we should also vary the
sentence of 15 years imprisonment imposed on the accused persons who are not
appealing.
In the case of Ifunda Kisite Vs Republic, (C.A.T.) Criminal Appeal No. 47 of 2003
(unreported), it was observed that one Erick Anzigar Makita, the first accused
at the trial, did not appeal to the High Court against the conviction and the
sentence. And the Judge on first appeal
by the appellant therein, did not interfere with the sentence of 15 years
imprisonment imposed on him upon a conviction of robbery with violence contrary
to sections 285 and 286 of the Penal Code.
On appeal to this court it was observed as follows in relation to the
first accused:-
“... in effect, this means
that he is now serving the illegal 15 year term of imprisonment meted on the offence of robbery
with violence. We think this is
wrong. Since a weapon was used in the
robbery, coupled with the other factor that the offence of robbery was
committed in the company of more than one person, the 1st accused
too ought to have been sentenced to the statutory minimum sentence of 30 years
imprisonment. Therefore, we will have to revise the 15 year term of
imprisonment imposed on the 1st accused.”
Accordingly,
the sentence of 15 years imprisonment was set aside and a sentence of thirty
years imprisonment was substituted thereof.
Applying the principle in Ifunda Kisite (supra) we think this is
a fit case for interfering with the sentence of 15 years imprisonment meted on
the two accused persons who are not appealing.
Therefore, in exercise of our revisional powers under Section 4(2) of The Appellate Jurisdiction Act,1979 as
amended by The Appellate Jurisdiction
Act No. 17 of 1993 we hereby quash and set aside the sentence of 15 years
imprisonment meted on CELESTINE JOHN JOSEPH MANDALE and RAPHAEL DICKSON
MACHEMBA and substitute thereof the correct sentence of thirty (30) years
imprisonment.
DATED
at DAR ES SALAAM this 12thday of December, 2007.
J.A.MROSO
JUSTICE
OF APPEAL
J.H. MSOFFE
JUSTICE
OF APPEAL
S.N.KAJI
JUSTICE OF APPEAL
I certify that this
is a true copy of the original.
I.P.
KITUSI
DEPUTY REGISTRAR
%20(10).png)
%20(28).png)
%20(28).png)
){kind=link}
0 Comments
PLACE YOUR COMMENT HERE
WARNING: DO NOT USE ABUSIVE LANGUAGE BECAUSE IT IS AGAINST THE LAW.
THE COMMENTS OF OUR READERS IS NOT OUR RESPONSIBILITY.