IN THE COURT OF APPEAL OF
AT
MWANZA
(CORAM: LUBUVA, J.A., MROSO, J.A., And
RUTAKANGWA, J.A.)
CRIMINAL
APPEAL NO. 166 OF 2004
SHAMIR S/O
JOHN …………………..….… APPELLANT
VERSUS
THE
REPUBLIC ….……..……………….…. RESPONDENT
(Appeal
from the Judgment of the High
Court
of Tanzania at Mwanza)
(Mihayo,
J.)
dated
the 21st day of May, 2004
in
Criminal Appeal 200 of 2003
-------------
JUDGMENT
OF THE COURT
1 & 16 March
2007
RUTAKANGWA, J.A.:
The
appellant, together with Godfrey Albinus and Guston Mahindi were jointly
charged before the District Court of Musoma with the offence of armed robbery
c/ss 285 and 286 of the Penal Code. They
were alleged to have stolen two boat engines, one National torch, 140 fishnets,
and two pieces of ‘kavero’ with a total value of TShs. 12,616,500/= the
property of one Zakaria s/o Kakwaya and immediately before such stealing that
they used a gun in order to obtain the property. The armed robbery, which the learned
appellate judge called “lake piracy” took place on the night of 21st
November, 2001 at Bwai area within Lake
Victoria
The
appellant and his colleagues denied the charge.
However, after considering the evidence of seven witnesses who testified
for the prosecution and the defence evidence, the trial Resident Magistrate was
of the settled mind that the prosecution had managed to prove its case to the
required standard in respect of the appellant and Godfrey Albinus, who were
accordingly convicted as charged. They
were sentenced to thirty (30) years in jail.
The third accused was acquitted of armed robbery but was found guilty of
retaining stolen property c/s 311 (1) of the Penal Code and was sentenced to
five years in jail. Godfrey, however,
was tried, convicted and sentenced in absentia.
Dissatisfied
with the conviction and sentence, the appellant appealed to the High Court at
Mwanza. In its judgement dated 21st
May, 2004, the High Court (Mihayo, J.) found the appeal patently wanting in
merit and dismissed it. The appellant
was again aggrieved and hence this appeal.
The
appellant lodged, at first, a three page typed memorandum of appeal containing
six grounds of appeal. On the day when
the hearing of his appeal took off he filed an additional memorandum of appeal
containing four grounds of complaint.
Both memoranda are discursive in nature and they can be easily taken as
written submissions. Furthermore, the
grounds of complaint in both memoranda of appeal appear to be overlapping. All in all, his grievances are clear. The bottom line of his complaints against the
decisions of the two courts below is that:-
(a)
he was not adequately
identified by the victims of the armed robbery, and so his conviction was
unjustified by the evidence on record;
(b)
he was not found in
possession of any incriminating article;
(c)
he never confessed to have
committed the robbery or any other kindred office and
(d)
the two courts below did
not judicially consider his evidence but only made a fleeting reference to it.
In this appeal, as was the case in the
courts below, the appellant is unrepresented.
Mr. Kakolaki, learned State Attorney, for the respondent Republic, is
vigorously resisting the appeal.
Before
deciding on the merits or demerits of the appeal, we find it desirable to look
briefly at the evidence which led to the conviction of the appellant.
At the
appellant’s trial it was not disputed that the properties of Zakaria Kakwaya,
who testified as PW2 were robbed on 20th/21st November, 2001
as shown in the charge sheet. It was also
undisputed that PW2 Zakaria is a local fishing magnate in his area who has
invested a lot in the fishing business.
He had a fleet of fishing boats equipped with outboard engines and a
host of other fishing gear as fishing nets, buoys, etc. Most of those pieces of equipment were marked
“UKOMBOZI” for easy
identification. Also, he had at his
command a number of employees in this business, among whom were PW5 Amos Musa
and PW6 Yunus Ramadhani. The appellant
had, prior to the robbery, been an employee of PW2 Zakaria. As to how the robbery took place and its
prelude the story was best told by PW1 Musa Mariko, PW5 Amos and PW6
Yunus. Their evidence was precise and
clear.
PW5 Amos
and PW6 Yunus testified that on 20/11/2001 together with their co-workers put
out to the lake at 4.00 p.m. for fishing.
They had two fishing boats fitted with outboard engines and about 140
fishing nets with buoys. Each one was
piloting his own boat. Once safely in
the lake at their chosen fishing zone they lowered their nets into the waters,
anchored their boats and rested. They
also had torches.
While PW5 Amos
and PW6 Yunus and their colleagues were in the lake at about 6.00 p.m., four
people in a boat arrived at Muroba, the home of PW1 Musa, a sardine fisherman. Of the four people PW1 Musa recognized
the appellant, who was well known to him as they had once worked together. The appellant wanted to know the residence of
one Julius. Fortunately, Julius joined
them almost immediately. After a brief
conversation they all headed for Julias’s home.
From the home of Julius they returned to their boat with an outboard
engine which they fixed onto their boat.
Leaving their own engine behind, the appellant and his three colleagues
put out to the waters. That was in the
evening.
Going by
the undisputed evidence of both PW5 Amos and PW6 Yunus the night of 20th
and 21st November, 2001 was well blessed with full moonlight. During that night as they were on their
fishing business, a boat powered by an engine closed in on them. It had four occupants in it. The four immediately jumped out of the boat
and descended upon PW2 Zakaria’s fishermen, and beat them up. The invaders who were armed with a gun and
iron bars ultimately made away with two boat engines, a torch, 140 fishing nets
and two “kaveros’. All this evidence was
undisputed by the appellant. PW5 Amos
and PW6 Yunus further testified that of the four robbers they only managed,
through the help of a bright light from the full moon and the torch light
(which was used while searching in the boats), to recognize the
appellant. PW5 Amos and PW6 Yunus who
were left helpless in the lake were rescued at about 4.00 hours and they
immediately mentioned the appellant, a former co-worker, as one of the four
bandits.
While PW5
and PW6 were left stranded in the lake, the appellant and his three companions
returned to Muroba the same night. PW1
Musa again saw them. They were carrying
things in sacks. They went straight to
Julius’s place deposited their luggage there, changed their engine and
left. Later that day (21/11/2001), PW1
Musa went to Paris
The
appellant told the trial court that he was a victim of a frame-up by PW2
Zakaria because after leaving his employment due to a misunderstanding, he set
up a rival but very successful fishing business. As a result PW2 Zakaria had sworn to avenge.
As already
indicated above both the trial court and the first appellate court did not buy
the story of the appellant. Both courts
were of the view that since the appellant was well known to PW1 Musa, PW5 Amos
and PW6 Yunus before the undisputed armed robbery, there was a strong moonlight
and an exchange of words during the robbery there was a lot of opportunity to
identify the appellant.
As the
offence of armed robbery was well established by the evidence of PW5 Amos and
PW6 Yunus and was not disputed at all, the crucial issue in this appeal, as was
the case in the courts below, is that of identification of the robbers. Was the appellant properly identified among
the robbers as the courts below were so convinced or was he mistakenly
identified or is he a victim of a frame-up as he has persistently claimed?
In this
appeal, as in the High Court, the appellant has vehemently argued that the
identification evidence relied on by the trial court was very weak and ought to
have been rejected. He has assigned four
reasons. Firstly, no identification parade was held at all. Secondly,
no exhibit was tendered in evidence to bear out PW5 Amos and PW6 Yunus on their
claims that they saw him during the robbery.
Thirdly, there was no
independent civilian or police witness to confirm that the torch (Exh. P1 (a))
was found in his possession. Fourthly, there was no police officer
who testified. He is also claiming, now,
that the prosecution witnesses on the issue of identification were unknown to
him, save for PW2 Zakaria who was formerly his employer.
Resisting
the appeal on the aspect of identification, it was strongly contended by Mr.
Kakolaki, learned State Attorney, that the appellant was adequately and
positively identified as one of the four robbers. He gave three reasons in support of his
stand. Firstly, there was full moonlight.
Secondly, the appellant who
was known to the witnesses, and his fellow three bandits jumped into the boats
and ordered the witnesses to load their fishing nets into the bandits’
boat. Thirdly, the victims and the bandits had torches. With these factors in mind he ruled out the
possibility of any mistaken identity. He
referred us to two decisions by this Court on the issue. These are:
(a) Samwel Silanga v. R [1993]
TLR 149 and (b) Rajabu Katumbo v. R. [1994]
TLR 129.
Admittedly,
identification in cases of this nature, where it is categorically disputed, is
a very tricky issue. There is no
gainsaying that evidence in identification cases can bring about miscarriage of
justice. In our judgement, whenever the
case against an accused depends wholly or substantially on the correctness of
one or more identifications of the accused which the defence alleges to be
mistaken, the courts should warn themselves of the special need for caution
before convicting the accused in reliance on the correctness of the
identification or identifications. We
are saying so advisedly. This is because
it often happens that there is always a possibility that a mistaken witness can
be a convincing one. Even a number of
such witnesses can all be mistaken.
It
is now trite law that the courts should closely examine the circumstances in
which the identification by each witness was made. The Court has already prescribed in
sufficient details the most salient factors to be considered. These may be summarized as follows: How long did the witness have the accused
under observation? At what
distance? In what light? Was the observation impeded in any way, as
for example, by passing traffic or a press of people? Had the witness ever seen the accused
before? How often? If only occasionally, had he any special
reason for remembering the accused? What
interval had elapsed between the original observation and the subsequent
identification to the police? Was there
any material discrepancy between the description of the accused given to the
police by the witnesses when first seen by them and his actual appearance? See, for instance, the cases of Waziri Amani v. R [1980] TLR 250, Raymond
Francis v. R [1994] TLR 100, Augusto
Mahiyo v. R [1993] TLR 117, Alex
Kapinga & 3 Others v. R., Criminal Appeal No. 252 of 2005 (unreported)
among others.
We would
like to take this opportunity to emphasize here, that in order to accord to an
accused person his constitutional right to fair trial under the equality before
the law clause (see Article 13 (6) of the 1977 Constitution), if, in any case,
the prosecution has reason to believe that there is such a material discrepancy
as referred to above, they should supply the accused or his advocate with
particulars of the description the witnesses first made at their earliest
opportunity. Furthermore, if the accused
asks to be given particulars of such descriptions, the prosecution should
supply them. Also, in all cases tried
with the aid of assessors, the judge should remind them of any specific
weaknesses which had appeared in the identification evidence. Finally, recognition may be more reliable
than identification of a stranger, but even when the witness is purporting to
recognize someone whom he knows, the court should always be aware that mistakes
in recognition of close relatives and friends are sometimes made.
To us, all
these matters go to the quality of the identification evidence. If the quality is good and remains good at
the close of the accused’s case, the danger of a mistaken identification is
lessened. But the poorer the quality,
the greater the danger. What then was
the quality of the identification evidence in this case?
Admittedly,
the evidence going to incriminate the appellant was recognition evidence coming
from PW1 Musa, PW5 Amos and PW6 Yunus.
Their evidence to the effect that they knew the appellant prior to 20th
and 21st November 2001 was not challenged either during
cross-examination or in his sworn evidence. We take it as an established fact,
therefore, that the appellant was well known to the identifying witnesses. For this reason there was no need of
conducting an identification parade.
From the uncontradicted evidence of both PW5 Amos and PW6 Yunus, on the
night of the robbery there was full moonlight, the bandits stayed with them for
an appreciable long period of time collecting the engines and the 140 fishing
nets and there was an exchange of words.
In short, the observation of the appellant by PW5 and PW6 was long and
unimpeded. For these reasons we are
constrained to concur with the two courts below that the quality of the
identification was impeccable and remained so at the close of the appellant’s
case. On the evidence of PW1 Musa, PW5 Amos
and PW6 Yunus, we would be prepared to dismiss the appeal.
Fortunately,
there is also the evidence of PW2 Zakaria, PW3 Chiru Mabula and PW4 Haji M.
Matiko to the effect that the appellant, immediately after the robbery, was
found in possession of the complainant’s torch (Exh. P1 (a)) which was one of
the articles robbed. The appellant never
challenged this evidence at all in his defence.
Both PW3 Chiru and PW4 Haji, contrary to the claims of the appellant
now, were independent civilian witnesses.
Indeed their evidence which was not disputed by the appellant, is to the
effect that PW3 Chiru is his neighbour and PW4 Haji is a friend of the
appellant’s brother. The appellant has
not attempted to show why these independent witnesses chose to align themselves
with PW2 Zakaria to victimize him. We
think the appellant was drawing a red herring in his defence.
All in all,
an objective evaluation of the entire evidence on record, which also the lower
courts carried out, leaves us entertaining no reasonable doubts on the guilt of
the appellant. He was rightly convicted
as charged. Even if the courts below had
considered his written submission which is not evidence the end result would
have been the same. As his appeal has no
iota of merit, it is accordingly
dismissed in its entirety.
DATED at MWANZA this 16th 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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