HASSAN JUMA KANENYERA AND OTHERS v REPUBLICOMAR JJA, AMADHANI JJA, MNZAVAS JJA 1992 TLR 100 (CA)

 

HASSAN JUMA KANENYERA AND OTHERS v REPUBLICOMAR JJA, AMADHANI JJA, MNZAVAS JJA 1992 TLR 100 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Omar JJA, Ramadhani JJA, Mnzavas, JJA

13 May 1992

Flynote

Evidence - Confession - Retracted confession - Need for corroboration. H

Evidence - Identification - By a single person - Need for corroboration.

Evidence - Identification - Under horrifying situation - Whether reliable. I

1992 TLR p101

The appellants were convicted of murder and sentenced to suffer death. They A

appealed challenging the evidence adduced and which grounded their conviction.

Four of the appellants were identified during a parade by P.W.4, the wife of one Dr.

Tesha who was killed. P.W.4 is said to have been raped by several of the bandits in

the presence of her 12 year old daughter. The appellants challenged the reliability of

B identification by P.W.4 in such a horrifying situation. The first and second

appellants were identified by P.W.4 alone. The appellants charged that identification

by a single person needed corroboration which in their case was wanting. Other

pieces of evidence which supported conviction were retracted confessions. These

were challenged as C being involuntarily made and that in any case they needed

corroboration which was lacking. The retracted confession in respect of the first

appellant was tendered in evidence by the appellant himself during cross-examination

and the defence councel raised no objection. D

Held: (i) However horrifying a situation is there is a watershed mark and if that is

reached then a victim overcomes his or her fear and measures up to the occasion. We

believe P.W.4 after such languish sojourn with her persecutors she surpassed fear and

E as she said "Despite the torture I remained alert in the mind and observed the

bandits closely". Moreover, in this particular case the reliability of the identification

of the appellants largely depended on the demeanour of P.W.4. This was the

monopoly of the learned trial judge who believed P.W.4 and we will be wrong to

fault her. F

(ii) exh. P.15 was produced by the first appellant himself as an exhibit when

he was cross-examined by the prosecution and the defending counsel did not object.

So it cannot now be heard that the statement was involuntary;

G (iii) the two retracted statements can be safely relied upon under the authority

of Tuwamoi v Uganda [1967] E.A. 84;

(iv) since we have found that P.W.4 properly identified the authors of the two

retracted statements as well as the other appellants then her evidence provides

corroboration if that was required;

H (v) it is a rule of practice, not of law, that corroboration is required of the

evidence of a single witness of identification of the accused made under unfavourable

conditions; but the rule does not preclude a conviction on the evidence of a single

witness if the court is fully satisfied that the witness is telling the truth. I

1992 TLR p102

RAMADHANI JJA, OMAR JJA, MNZAVAS JJA

Case Information

Appeal of 1st, 2nd, 3rd and 5th appellants dismissed. Appeals of 4th and 6th A

appellants allowed.

Ng'maryo, Itemba and Maruma, for appellants

Mono, for the respondent B

[zJDz]Judgment

Ramadhani, Omar and Mnzavas, JJ.A.: The deceased, Dr. Luis Tesha, on the night of

14/6/1985 was at his home in Chekereni, Weruweru Village in Moshi, together with

his wife, Zaresh Tesha (P.W.4), his daughter, Sia Tesha (P.W.5) and a house boy,

Prosper Francis (D.W.6), when they were invaded by a group of thugs who killed C

him, raped and serious assaulted his wife, harassed his daughter and the house boy

and made away with a number of items of property.

The widow (P.W.4) named and identified the first appellant, Hassan Juma D

Kanenyera, who, until a couple of months before the incident, had been their

watchman. The first appellant was tracked down at Kilosa by D/Cpl. Paulo (P.W.2).

He was brought back to Moshi where he owned participating in the crime and named

six other persons as his companions. He recorded a statement with the Police which

was admitted as Exh. P.15. However, when he was taken to a Justice of the Peace, E

Luvanda (P.W.1), he recorded an extra-judicial statement (Exh. D.1) in which he

retracted what he had admitted in Exh. P.15 just as he had done at the trial. One of

the persons whom the first appellant had implicated, Cyprian Joseph, the second

appellant, F admitted to have been a party to the crime and gave a narrative very

much like that of the first appellant which was recorded by P.W.1 as an extra-judicial

statement (Exh. P.1). The second appellant, too, retracted the admission in his sworn

evidence in court. As a result of the admissions of these two appellants, the persons

they had implicated G were also arrested and charged. All in all there were eight

accused persons. Accused No. 6, John Magesa, was acquitted, while accused No. 8,

Julius Hamza, was convicted of receiving stolen property c/s 311(1) of the Penal Code

and was sentenced to imprisonment for a term of ten years. The remaining six

accused persons were H convicted of murder by the High Court of Tanzania at

Arusha (Munuo, J.) and needless to say, were sentenced to suffer death. These six

have now appealed before us.

The first appellant was represented by Mr. Ng'maryo, learned I

1992 TLR p103

RAMADHANI JJA, OMAR JJA, MNZAVAS JJA

attorney, while Mr. Itemba, learned counsel, advocated for the second appellant, and

A the other four appellants had the services of Mr. Maruma, learned counsel.

Mr. Ng'maryo had a memorandum of appeal containing eight grounds and Mr. Itemba

had two while Mr. Maruma presented six grounds of appeal. For the sake of simplicity

B and clarity we have consolidated all these grounds, some of which are mere

repetitions, and we have come up with five objections. Again to avoid recapitulations

we are first going to consider the five grounds drawing from the arguments of all the

three learned advocates without indicating who submitted what and then take into

account the counter-claims of the respondent/Republic through Mr. Mono, the Senior

C State Attorney. After that we shall determine how our findings affect the

individual appellants.

The first contentious issue was the credibility of the widow, P.W.4, which was

assailed on two fronts. First, the appellants have argued that P.W.4 was not reliable

because D she did not mention the first appellant in her Police Statement, Exh. D.2,

which was recorded on 17/7/1985, that is just over a month after the incident. There

she had said:

E Nakumbuka mnamo tarehe 14/6/85 kama saa 01.00 usiku huko nyumbani

kwangu Karanga tulivamiwa na majambazi wasiojulikana...

However, it was pointed out by the appellant that on 10/9/85, some three months F

later, she was able to pick out the first, the second, the third and the fifth appellants

from an identification parade which was mounted by Inspector Daniel Kawiche

(P.W.3) the results of which were tendered as Exh. P.2. In another identification

parade on 25/9/84 (Exh. P.3), after fifteen days, P.W.4 could not pick-up anybody

though the fourth G appellant was paraded. It was further pointed out that it was

after the two identification parades that P.W.4 gave her second statement (Exh. D.3)

in which she claimed to have recognised the first appellant among the bandits who

killed her husband. So the appellants submitted that if P.W.4 had indeed identified

the first appellant that fateful H night she would not have missed to record that in

her first statement to the Police.

To that submission the respondent/Republic countered that P.W.4 was crossexamined

on that and she had said that she did not disclose the first appellant in her

first Police statement because she was concerned about her own safety. In any case

Mr. Mono I added,

1992 TLR p104

RAMADHANI JJA, OMAR JJA, MNZAVAS JJA

P.W.4 had mentioned the first appellant to A.S.P. Mwanga (P.W.9) and that it was A

after P.W.9 had identified himself as a Policeman that P.W.4 was at ease to make that

revolution.

The learned trial judge believed P.W.4 and we see no good reason to fault her. P.W.4

did not also disclose in her first Police statement that she had been raped. Yet she B

was and by four thugs, one after another, and within an earshot of her young

daughter of twelve years, P.W.5. To make it worse, the awareness that among the

thugs was a person who had been in her pay-roll was undoubtedly nauseating. P.W.4

would definitely be loathsome to put that in writing for all to see just a few weeks

after the C incident when she had not conditioned herself to live with her

tormenting memory. On the other hand, one could easily understand her readiness to

whisper that disgusting experience into the ear of a Police investigator in privacy just

a day after the incident, on 15/6/1985.

The other front relied upon by the appellants on the issue of credibility of P.W.4 was

D that she was not borne out by the evidence of the other two occupants of the

house in that evening. The young daughter, P.W.5, they contended, was loud and

clear:

E I did not note the particulars of their clothes because one of the bandits was

holding a sime of my neck. Under such captivity I was more concerned about

surviving; not looking at the clothes the bandits wore ... I was naturally terrified

under the panga threats.

As for the houseboy, P.W.6, the appellants pointed out, he did identify the sixth F

appellant at the second identification parade but in his evidence on behalf of the

defence, after he was offered by the prosecution, he stoutly and categorically denied

that:

G I did not see accused No. 7 at the banditry raid on the material night.

D.W.6 admitted to have identified accused No. 7 (6th appellant) but that was because

H he "used to buy milk from us". So the appellants quarried how could it have been

that only P.W.4 had that cool nerve that evening to be able to identify them.

We agree with Mr. Mono that P.W.5 gave her reasons for being unable to identify

any of the bandits. This is not surprising at all considering that P.W.5 was merely

twelve I years old at the time when she was subjected to seeing her father flat on the

floor groaning

1992 TLR p105

RAMADHANI JJA, OMAR JJA, MNZAVAS JJA

in deep pain and hearing her mother crying as she was being manhandled by the A

bandits. That was enough traumatic experience to make her avoid looking at the

thugs. However, she supported her

mother in that she heard one of the robbers saying that it was the former watchman

i.e. 1st appellant, who had told them that there was a lot of money in the deceased's

house. As for D.W.6 he could not definitely identify anybody. From the first sound of

B breaking into the house he sought refuge under a bed until he was fished out by

one of the bandits.

We shall have more to say on this in the following ground of appeal. C

The second ground of appeal was that the identification by P.W.4 could not be relied

upon. The first limb of contention was that the circumstances were not favourable for

a proper identification. It was argued that it was night time with just hurricane lamps

as sources of light and as for the outside there was moonlight. Then it was pointed out

D that it was an intense moment of panic and horror. In addition to that, it was

argued, P.W.4 was severely injured and had to be hospitalised for a month from

14/6/1985 to 14/7/1985. All these factors, it was submitted, did cast a shadow on the

correctness of the identification. E

Mr. Mono countered that by saying that P.W.4 had spent quite a long time with these

people and at a very close range and so was able to photograph their identities on her

mental film. The learned Senior State Attorney also pointed out that the first

appellant had been her employee for about three months and she was therefore able

to identify F him very easily and particularly as she had said that she recognised his

voice when he told his colleagues that P.W.4 was dead.

There is a lot of merit in what Mr. Mono has said. P.W.4 had a good opportunity

which was denied to P.W.5 and D.W.6. Besides, it is our considered opinion that

however G horrifying a situation is there is a watershed mark and if that is reached

then a victim overcomes his or her fear and measures up to the occasion. We believe

P.W.4 after such languish sojourn with her persecutors she surpassed fear and as she

said "Despite H the torture I remained alert in the mind and observed the bandits

closely". Moreover, in this particular case the reliability of the identification of the

appellants largely depended on the demeanour of P.W.4. This was the monopoly of

the learned trial judge who believed P.W.4 and we will be wrong to fault her. I

Again the advocates of the appellants pointed out that after

1992 TLR p106

RAMADHANI JJA, OMAR JJA, MNZAVAS JJA

the identification parade appellants 1, 2, 3, and 5 registered their complaints that A

P.W.4 had known then before. Sarkar's Law of Evidence 13th ed. p.99 was cited as

authority that an identification parade is useless if the persons put on the parade to be

identified are known to the person who is to make the identification.

We concede that with respect to the first appellant. The identification parade was B

superfluous. However, that could not be said to have been the case in respect of the

remaining three appellants. These appellants knew P.W.4 as "Mama Maziwa". But

that does not mean that P.W.4 must have known them too. Apart from her activity of

selling C milk P.W.4 was the wife of a veterinary doctor. She was prominent enough

to be known by all and sundry in the village but the reverse was not true. Had it been

that P.W.4 knew the rest of the appellants before the identification parade and that

was why she picked them out, then she should not have failed to identify the fourth

appellant, D who is the brother of the fifth appellant, during the second parade. The

fourth appellant too was a resident of that village, therefore according to the

contention of the appellants, was known to P.W.4.

The third ground of appeal was that the statement of the first appellant to the Police,

E Exh. P.15, and the extra judicial statement of the second appellant, Exh. P.1, were

retracted and therefore required corroboration. Advocates, for the appellants cited a

series of rather old authorities like R. v Mitilande (1940) E.A.C.A.46: Kimani and

Others v R. (1954) 21 E.A.C.A. 316; and Etat v R. (1954) E.A.C.A. 330 to the F effect

that the prosecution is to prove voluntariness of the statements.

We do not think that this should detain us even a bit. First, Exh. P.15 was produced

by the first appellant himself as an exhibit when he was cross-examined by the

prosecuting State Attorney and the defending counsel did not object. So it cannot

now be heard G that the statement was involuntary. Second, the two retracted

statements can be safely relied upon under the authority of Tuwamoi v Uganda (1967)

E.A. 84. The advocates of the appellants pretended not to be aware of this classic

authority on retracted confessions. Third, and as Mr. Mono submitted, these two

statements, which were H confessions, are saved by Section 29 of the Evidence Act,

1967. Lastly, since we have found that P.W.4 properly identified the authors of the

two retracted statements as well as the other appellants then her evidence provides

corroboration if that was required. I

The fourth ground of appeal was the need for corroboration.

1992 TLR p107

RAMADHANI JJA, OMAR JJA, MNZAVAS JJA

This was argued first in relation to the retracted confessions which we have already

A dealt with. Them it was also submitted with respect to identification by single

witness that is P.W.4. Our decision in Lusabanya Siyantemi v R. [1980] T.L.R. 275

was cited as authority for that. But there we said:

B It is a rule of practice, not of law, that corroboration is required of the

evidence of a single witness of identification of the accused made under unfavourable

conditions; but the rule does not preclude a conviction of the evidence of a single

witness if the court is fully satisfied that the witness is telling the truth. C

Here we have amply demonstrated that the conditions were not unfavourable.

Admittedly the learned trial judge did not openly say that she was satisfied that P.W.4

was telling the truth. Since this is a first appeal we can, and we hereby, cure that

oversight for the reasons already advanced. So we find this ground, too, to be D

baseless.

The fifth ground was that of alibi. But this, as was properly pointed out by Mr. Mono,

largely concerned the first and the fourth appellants who gave due notice of alibi.

Again here we dismiss this ground since we have believed P.W.4 and have found the

two E retracted statement to be reliable.

After making the above findings we cannot but dismiss the appeal of the first and the

second appellants forthright. Both have confessed to have participated in the

commission of the crime. Also as for the third and fifth appellants apart from having

F being implicated by co-accused persons i.e. the first and the second appellants in

their confessions, they were identified by P.W.4.

The fourth appellant, Adam Mamboleo, was mentioned by the second appellant only

and not by the first appellant. Also though he was on the second identification parade

he G was not picked out by P.W.4. The only other piece of evidence which could

implicate him is the statement of D/SSgt. Wilfred (P.W.7) who arrested him. P.W.7

said that he found the fourth appellant having locked himself in his room from

without. P.W.7 did not break the door because he got the key from the mother of the

fourth appellant. This H could be an incriminating factor. However, P.W.7 was very

clear that he found the brother of the fourth appellant who is the fifth appellant

hiding under a bed in a room locked from outside. But P.W.7 did not say so with

respect to the fourth appellant. so that is to the credit of the fourth appellant. But also

P.W.7 had to break the door of I John Magesa who was the sixth accused because he

too had locked in

1992 TLR p108

RAMADHANI JJA, OMAR JJA, MNZAVAS JJA

himself with a padlock outside his door. Yet this John was acquitted because the A

house boy of the deceased, D.W.6, who picked him out at the identification parade,

did so because John used to go to buy milk from P.W.4. Yet John was implicated by

both the first and the second appellants. So we feel that Adam Mamboleo, the fourth

appellant, is entitled to the benefit of B doubt. The fact that he had locked himself in

could be explained otherwise than that he was involved in the murder of the

deceased. We therefore quash his conviction of murder.

The sixth appellant, Hamadi Juma Kanyonga, was implicated by both the first and the

C second appellants. Indeed the first appellant named him as one of the rapists of

P.W.4. However, as he was not in either of the two identification parades.

We cannot say whether P.W.4 would or would not have identified him. Since he

cannot be convicted solely on the confessions of co-accused persons-section 33(2) of

the D Evidence Act, 1967 - we have to quash his conviction.

Therefore the appeals of the first, the second, the third and the fifth appellants are

dismissed. The appeals of the fourth and the sixth appellants are allowed and it is

ordered that they be released forthwith unless they are otherwise lawfully held. E

Before we finish we would like to comment in passing on the conviction of Julius

Hamza Shimangwe for receiving stolen property c/s 311(1). Admittedly receiving is a

lesser offence than murder but it is not a cognate offence with murder and therefore

it was wrong to have made that substitute finding. It was held in Valezi Madageda v

R. F (1954) 22 E.A.C.A. 389 that the offence of being an accessory after the fact to

murder is minor to but not cognate with murder. That decision overturned R. v

Sumbuso s/o Rulinde and Others (1948) 15 E.A.C.A. 99. If accessory after the fact to

murder is G not cognate with murder then receiving stolen property is even more

so. But as there is no appeal against that before us and as we have no revisional

jurisdiction we leave that matter as it is.

H Order accordingly.

1992 TLR p109

A