MOHAMED MUSERO v REPUBLIC 1993 TLR 290 (CA)

 MOHAMED MUSERO v REPUBLIC 1993 TLR 290 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Makame JJA, Omar JJA and Mfalila JJA

B CRIMINAL APPEAL NO. 99 OF 1993

13 December, 1993

(From the conviction of the High Court of Tanzania at Mwanza, Masanche, J.)

Flynote

C Criminal Practice and Procedure - Identification - Use of torch light in

identifying thieves - Whether reliable.

Appeals - Second appeal - Where findings of fact or inferences are perverse -

Whether Court of Appeal can D intervene - Appellate Jurisdiction Act 1979 -

Section 6(7) (a).

-Headnote

The appellant was convicted of robbery with violence by the District Court and

sentenced to 15 years' imprisonment. His appeal to the High Court failed and his

sentenced was enhanced to thirty years imprisonment. He appealed further.

E Held: (i) Where everything is equal, the Court of Appeal acting as a second

appellate court, is confined by s 6 (7) of the Appellate Jurisdiction Act 1979 to matters

of law only;

(ii) Where the Court of Appeal in the course of exercising its jurisdiction

under s 6 (7)(a) F of the Appellate Jurisdiction Act 1979, finds that findings of fact

or inferences are completely unrelated to the evidence on record, it must, in the

interests of justice, intervene.

(iii) Torch lights are not effective in identifying thieves, the High Court

judge's remarks on G torch beams were pure conjecture which have no room in

criminal trials.

Case Information

Appeal allowed.

No case referred to.

H W.C. Magoma, for the Republic.

[zJDz]Judgment

Mfalila, J.A. delivered the following considered judgment of the court:

The appellant Mohamed Musaro was charged with and convicted of the offence of

robbery with violence contrary to ss 185 and 286 of the Penal Code at the District

Court of Dunda district at I Dunda. He was sentenced to 15 years' imprisonment. He

appealed to the

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MFALILA JA

High Court at Mwansa where Nasancho J dismissed the appeal but enhanced the

sentence to thirty A years imprisonment because `for the offence of robbery with

violence c/s 285 and 286 of the Penal Code the correct punishment is thirty years.

The appellant lodged this further appeal still protesting his innocence. As a second

appellate Court, we are confined by s 6 (7) of the Appellate Jurisdiction Act 1979 only

to matters of law. Questions of fact are supposed to have been B conclusively dealt

with by the Courts better placed to do so, ie the Court of first instance which heard

and saw the witnesses and the first appellate Court which evaluated the evidence and

is empowered to treat the appeal as a re-hearing. This is the position in cases where

everything is C equal. If in the course of exercising its jurisdiction under s 6 (7)(c) of

the Appellate Jurisdiction Act, it finds that findings of fact on inferences are perverse

in that they are completely unrelated to the evidence on record, this Court must in

the interests of justice intervene. This is because the D attainment of justice is or

should be the goal of any good law.

In the present case some violent intrusion was made at the home of Juma Wambura

(PW2) at Nyandogo Village during the night. At the time Juma was not at home, he

was in remand for some offence, only his two wives Suzana (PW1) and Mwajuma

(PW3) were in the house. They are E therefore the two witnesses who narrated the

events of that night. The two women deposed that on 22 April 1990, two men

violently broke into their house and demanded to be given some money. When the

intruders were told that there was no money, they started collecting some articles.

They F took one radio, International in make, two radio cassettes, 50 compact

cassettes, one Seiko watch, two pairs of shoes, two and a half pairs of khanga, one

bedsheet, two stools, four shirts and six pairs of trousers. In the course of this stealing,

the bandits injured a five year old child with a G panga on the head. Suzana added

that they raised an alarm in the morning. It appears that no further action was taken,

because according to Mwajuma, their father-in-law told them not to take any action

until their husband came out of remand. Nothing therefore appears to have taken

place until 30 July 1990 when according to Susana, the appellant was arrested in

possession of her radio H which she identified as her property. Indeed there is no

evidence that any report about this break-in was ever made at the Police Station.

There is therefore a gap in the circumstances leading to the arrest of the appellant

apart from Juma Wambura's contention in his evidence that: I

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MFALILA JA

A `In August I caught the accused with the radio which was among the stolen

things. We found the radio on the chair.'

There was of course also the evidence of another woman Nyebanano Makarai (PW4)

who said that in April 1989 she bought 11/2 pairs of khanga from the appellant, and

that one day as she was B wearing one piece of this khanga, she met one of Juma

Wambura's wives who recognised it. This was produced as an exhibit at the trial.

C In his defence at the trial, the appellant narrated the circumstances and events

which led to his arrest. He said that on 29 September 1990 at about 1 pm, he was at

his home when his niece Rawa Yusuf called. After a while his nephew Jumamosi also

arrived carrying a radio. He asked Jumamosi whose radio it was, Jumamosi told him

that it belonged to Juma Wambura PW2. Indeed D the appellant confirmed this

when he examined it because he knew the radio. Juma Wambura is closely related to

him as his first cousin. Jumamosi called for batteries. He told him to get some from

the bookshelf and went to take a bath. While he was dressing, Jumamosi bid him

goodbye. E The following day on 30 July 1990, he went to the Police Station on

some business when he was informed by one P C Francis that there was some stolen

property at his house. He went back to his house accompanied by Police Officers who

searched the house in the course of which a radio was recovered hidden in some

couch cushions. He was arrested and taken to the Police Station. The F appellant

contended that his case was planted on him by his cousin Juma Wambura who had

grudges against him based on three events. The first one involved Wambura's

repatriation to Ruvuma Region as a suspected cattle thief. It was then believed that it

was he who had informed on Wambura. The second one involved Wambura

swindling him of Shs 6,270/= in 1986 which led G to criminal charges being made

against Wambura, but he later withdrew the charges on account of their close

relationship. The third involved his refusal to pay Wambura Shs 9,000/= which he

claimed to be his share in their joint hotel business.

H Reading the record we find that the Trial Court found that the charge against the

appellant had been established for three reasons. First, that the appellant was amply

identified by Suzana and Mwajuma to be one of the two bandits who broke into their

house on 22 April 1990. Secondly, that one of the items i.e. a piece of khanga stolen

from their house by the bandits was sold to the I woman Nyobanane by the

appellant. Thirdly, that another item a radio

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MFALILA JA

stolen that night from their house was found in possession of the appellant on 30 July

1990. A

We shall first deal with the identification of the appellant by PW1 and PW3. The

trial Magistrate stated:

`The complainant PW2 is related to the accused. PW1 and PW3 are the

complainant's wives. Therefore the B witnesses and the accused know each other

very well. Therefore the issue of mistake of identity cannot be entertained. PW1 and

PW3 told this Court that they identified the accused person with the aid of torch

light and by his voice when he said `tulia' and when he demanded to be given some

money. I am satisfied with the evidence that the witnesses did really identify one of

the robbers to be the accused. It is also true that the accused did use C actual

violence in order to obtain the stolen property to wit he did cut a five year old child

with a panga on the head.'

On appeal to the High Court, the learned Judge agreed with this view. After

considering the misgivings expressed by the learned State Attorney whether torch

light is really effective in D identifying thieves, as sometimes and quite often beams

of torches are directed into the eyes of complainants, dazzling them and therefore

impairing their vision the judge said: E

`I agree. But, sometimes and quite often too, thieves swing such beans of lights

in search of articles to be stolen. If the torches get swung, it sometimes becomes easy

to identify thieves.'

We think with respect that the misgivings expressed by the learned State Attorney

about the F efficiency of torch light in identifying thieves are universally valid. The

learned Judge's remarks on torch beams were pure conjecture. As the learned Judge

will readily appreciate, conjecture and guess work have no room in criminal trials. In

the circumstances of this case therefore the fact that G the two women as relatives

knew the appellant very well, was irrelevant for his correct identification as one of

the intruders. With regard to the voice this was also most unreliable in the

circumstances of this case. There was not much exchange of words in this confused

atmosphere, only one word `tulia' seems to have been uttered and possibly another

two `lete pesa' when the H bandits were demanding money. This to us appears

insufficient to enable the witnesses to make a clear identification based on voice.

The second piece of evidence which allegedly linked the appellant to this offence was

the khanga found with Nyebanano. The Trial I

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MFALILA JA

A Court make this linkage and the High Court went along. The judge stated:

`Anyway besides the radio, a woman was caught with a piece of khanga. The

woman disclosed that the price of B khanga has been given to her (sic) by the

appellant.'

We have found it extremely difficult to comprehend this linkage so readily made both

by the Trial Court and the High Court. Nyabanano's evidence is clear that she bought

this piece of khanga from C the appellant in April 1989, a year before the robbery at

PW2's home on 22 April 1990. In her judgment, the trial Magistrate also wrote clearly

that PW4 Nyebanano testified that in April 1989 the accused sold to her one piece of

khanga at the price of Shs 300/=. How then could she link this D transaction which

took place in 1989 to the robbery of 1990? In the circumstances we are satisfied that

the transaction involving the sale of the piece of khanga by the appellant to

Nyebanano in 1989 had no relevance or bearing to the robbery which took place at

PW2's house in 1990.

E Lastly we turn to the radio. The robbery at PW2's house took place in April 1990

and by the time the radio was allegedly recovered at the appellant's house, no report

had been made at the Police Station, not even after the release of PW2 from record

prison. We ask ourselves why, particularly when the two women victims of this

robbery claimed to have clearly identified one of the bandits. F The whole thing

was left hanging until by some chance the appellant went to the Police Station on his

own business when he was told that there were some stolen properties in his house.

How did P C Francis know of this, who reported the stealing and presence of this

radio? Why did PW2 and his wives remain silent all this time? These unanswered

questions lend credence to the appellant's G theory that for the reasons which he

gave, this radio was planted at his house by Jumamosi on the instructions of Juma

Wambura (PW2). Both the Trial Court and the High Court capitalised on the fact that

Jumamosi denied taking any radio to the appellant. But we think they overlooked two

H important things. If Jumamosi was part of the conspiracy, his denials could only be

expected. Secondly the fact that the appellant called him as his witness, lends

credence to his story that Jumamosi had brought the radio. He did this innocently. He

could not have risked to call a false witness who would spoil his case by denying all

knowledge of the radio. It is true that his niece I Rawa was not called, but we think

the appellant gave good reasons

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MFALILA JA

why this did not happen. If either or both the Trial Court and the High Court on first

appeal had A addressed themselves to these weaknesses in the prosecution case, we

are sure they could not have convicted the appellant. Hence the necessity for our

intervention. There is also another matter which we think affects any consideration

of the appellant's involvement. We think that given the close blood relationship

between the appellant and Juma Wambura, the appellant could not harm B his five

year old nephew if he was one of the bandits who raided PW2's house that night.

Mr Magoma, learned State Attorney, who appeared for the Republic found himself in

the unfortunate position of having a split personality. To support the appellant's

conviction in accordance with official C instructions and his personal conviction that

the appellant's conviction was unsupportable for the very good reasons which he

gave. We give credit to Mr Magoma's personal position in this appeal with which we

agree. D

For all the foregoing reasons, we are satisfied that the appellant's conviction cannot be

supported by the evidence on record. Accordingly we allow the appeal, quash the

conviction and set aside the 30 year prison sentence. We order the appellant's

immediate release from prison unless he is otherwise lawfully detained. E

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