KAMANDO CHISIMA v REPUBLIC 1995 TLR 140 (CA)

 

KAMANDO CHISIMA v REPUBLIC 1995 TLR 140 (CA)

Court Court of Appeal - Dodoma

Judge Mnzavas JJA, Mfalila JJA and Lubuva JJA

B Criminal Appeal 57 of 1994

24th April, 1995

(From the conviction of the High Court of Tanzania at Dodoma, Ruhumbika, J)

Flynote

C Criminal Practice and Procedure - Appeals - Third appeal - Appellant raises a

defence of alibi not raised and considered by second appellate court - Whether there

was a point of law to be considered by the third appellate court.

-Headnote

D The appellant was convicted by the Primary Court of robbery. His appeals to the

District Court and High Court were unsuccessful. While appealing to the High Court

the appellant did not include in his memorandum of appeal the defence of alibi. On

further appeal to the Court of Appeal a point of law certified to it was whether failure

by the learned judge on second appeal to consider the defence of alibi was fatal. E

Held:

(i) the defence of alibi not being part of the memorandum of appeal filed,

there was no basis upon which the learned judge on second appeal could deal with

this issue; F

(ii) since a judge on appeal is guided by procedure to deliberate on issues or

points raised at the appropriate time through the memorandum of appeal and since

the issue of alibi was not before the judge on appeal, no point of law was involved

warranting consideration of this Court on a third appeal.

Case Infomation

Appeal dismissed. G

No case referred to.

Kifunda for the respondent.

[zJDz]Judgment

H Lubuva, JA delivered the following considered judgment of the Court.

Before the Primary Court of Mwitikira within Dodoma Rural District the appellant

was charged with and convicted of the offence of robbery contrary to ss 285 and 265

of the Penal Code. He was sentenced to a term of imprisonment for fifteen (15) years.

On I

1995 TLR p141

LUBUVA JA

appeal to the District Court, the appeal was dismissed but the sentence was A

enhanced to thirty years imprisonment. Again, he unsuccessfully appealed to the

High Court at Dodoma. Dismissing the appeal, the learned judge held that there was

ample evidence in support of the charge against the appellant who was sufficiently

identified. This is thus a third appeal. B

The appeal before this Court has been lodged with a certified point of law. That is,

whether failure by the learned judge on second appeal to consider the defense of alibi

raised by the appellant was fatal. The appellant appeared in person at the hearing of

this appeal. He has filed six grounds of appeal which in sum total C challenge the

learned judge's failure to consider the appellant's defence of alibi. This, we think, is

the only legal point for consideration in this appeal. In ground two of the

memorandum of appeal, the appellant inter alia complains:

'That the Honourable Appellate Judge misdirected himself in law and fact in

failing to evaluate D any defence testimony and that of any witnesses as regants (sic)

my where-abouts on the material day.'

On record, the evidence which was accepted and believed as truthful by all the E

courts below was that of PW1, PW2 and PW3. According to the evidence, on 4 May

1991 at about 5 pm while PW1 and PW2 were on their way home from Dodoma, on

arrival at Mpunguzi village they were joined by Kasiani Ndunguru (PW 3) a teacher

at the locality. As PW1, PW2 and PW3 proceeded to their home F village Mtita, the

appellant in the company of other bandits who were not traced, waylaid them (PW1,

PW2, PW3). In the process, Grace Malolela (PW1) was robbed Shs 6,000/=, a piece of

khanga and a watch. The appellant and the other bandits were armed with a gun,

clubs and a bush knife. In the course of the G robbery, PW1 and PW2 were also

manhandled. In his defence at the trial, the appellant denied his involvement in the

commission of the offence in that he was not at the scene of crime when the offence

took place. The trial magistrate H rejected the appellant's defence of alibi and found

it as a fact that the appellant was sufficiently identified in his participation in the

robbery. He was therefore found guilty as charged.

On appeal to the District Court Dodoma, the learned District Magistrate dismissed the

appeal on the ground that the identity of the appellant was clearly established from

the evidence of PW1 which was corroborated by PW2 and PW3. Secondly, the

learned I

1995 TLR p142

LUBUVA JA

A District Magistrate held that the appellant was found in possession of PW1's piece

of khanga and PW2's local rate receipt which had been stolen in the course of the

robbery and that the appellant also produced Shs 2,220/= as the balance of the money

robbed. As already indicated, on second appeal to the High Court, the appeal was

dismissed because the learned judge held that it was amply proved that the appellant

was involved in the robbery in which PW1 and PW2 were the victims. B

At the hearing of this appeal before us, the appellant who appeared in person, opted

not to add anything more to the memorandum of appeal filed. For the respondent

Republic Mr Kifunda, learned State Attorney addressed us briefly. He C submitted

that this being a third appeal and there being no point of law involved, the appeal

should be dismissed. He further submitted that there was no merit in the point of law

certified because the issues of the defense of alibi was not raised D before the High

Court. Mr Kifunda, learned State Attorney finally submitted that the fact that the

defence of alibi was not considered by the learned judge on the second appeal was not

fatal. There was sufficient evidence on which to sustain the conviction, Mr Kifunda

concluded.

E Now we will examine the merits of the points of law certified to this Court. As

seen from the ground of appeal extracted, the gravamen of the complaint against the

learned judge is that the defence of alibi raised by the appellant was not considered on

appeal before the High Court. Upon our scrutiny of the judgment we F agree that

the issue of alibi was not, with respect, expressly dealt with by the learned judge. But

then we ask ourselves whether the learned judge can be faulted on that. In our

considered view, the answer to that is categorically in the negative. This is for the

simple and obvious reason that appeals in any court are a creation of procedure. It is

common knowledge that the Civil Procedure Code 1966 and the G Criminal

Procedure Act, 1985 provide a procedure to be followed in the processing of civil and

criminal appeals respectively. Under such laid down procedure it is provided as to

what issues are to be raised and dealt with on appeal. In this case, the issue of alibi

was not one of the issues brought before the H learned judge to deal with on appeal.

Furthermore, even in the seven point memorandum of appeal filed before the High

Court, the question of alibi was not raised. In that situation we are, with respect, in

agreement with Mr Kifunda, learned State Attorney that the defence of alibi not

being part of the memorandum of appeal filed, there was no basis upon which the

learned judge on second appeal could deal with this issue. I

1995 TLR p143

LUBUVA JA

At this juncture it is pertinent for us to make it clear that a judge on appeal is not A

there to fish around for any point that may be raised, suggested or thought of at any

time in the course of hearing on appeal. He is guided by procedure to deliberate on

issues or points raised at the appropriate time through the memorandum of appeal.

This was not the case here, the issue was not before the learned judge on appeal. In

these circumstances we are, with respect, satisfied that no point of the law was

involved. B

On the other hand, even granted that a point of law was involved upon a close

scrutiny of the judgment of the High Court on appeal, it seems to us clear that the

learned judge dealt with the issue of alibi indirectly. In our view, the learned judge

addressed himself on this issue when dealing with the evidence of PW1 (Grace C

Malolela). He stated:

'The evidence on record clearly shows that PW1, Grace Malolela identified the

appellant, whom she knew by name as Kamando, as one of those people who invaded

them as they were on their way home from Dodoma.' (emphasis supplied). D

Again it is on record that the learned judge alludes to the identity of the appellant

when he dealt with the evidence of PW3 (Kasiani Ngunguru). There, he stated: E

'The old man rushed back on hearing the alarm raised by the girls. He

recognised the appellant as they were dashing away from the girls after robbing

them.'(emphasis supplied).

This, to our minds, clearly shows that the learned judge addressed himself on the F

crucial issue of the identification of the appellant. That is, that from the evidence, the

appellant was properly identified as a participant to the crime. From this it is apparent

to us that the learned judge addressed on the fact that the appellant as G identified

could not be elsewhere at the time when the crime was committed at the same time

when he was seen at the scene of crime. This, to us, was clearly nothing but a

concerted effort on the part of the learned judge to deal with the identity of the

appellant which aspect indirectly as pointed out covers the issue of alibi. H

In the result, we are satisfied that in the circumstances of the case there was no point

of law involved warranting consideration of this Court on a third appeal. We are also

satisfied that the offence having taken place during day time, the identity of the

appellant was proved satisfactorily. There was ample evidence upon which to sustain

the conviction. We dismiss the appeal in its entirety. I

1995 TLR p144

A