TONGENI NAATA v REPUBLIC 1991 TLR 54 (CA)

TONGENI NAATA v REPUBLIC 1991 TLR 54 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Omar JJA, Ramadhani JJA and Mnzavas JJA

11 April, 1991

Flynote

D Criminal Practice and Procedure - Identification parade - Whether persons on

the parade should be uniform - Police General Orders No. 231.

Criminal Practice and Procedure - Assessors - Right of an accused to object to an

assessor - Effect of failure to give E accused opportunity to exercise the right.

-Headnote

The appellant, Tongeni Naata, was convicted of two counts of murder in the High

Court at Arusha and was F accordingly sentenced to suffer death. The appellant was

arrested based on a description given by Hawa d/o Issa (P.W.1) who also suffered

serious bodily injury from the appellant during the same incident which led to the

demise of the two deceased. PW1 was hospitalised. Subsequent to her hospitalisation

an identification parade was G held whereat eight Masai youths were paraded past

her bed one after another. Some had their hair plaited, others not.

P.W.1 succeeded in identifying the appellant as her assailant, although it was alleged

that the appellant was first shown to PW1.

During the trial which led to the appellant's conviction and sentence to suffer death,

the appellant was not invited H to object to the assessors.

Held: (i) The only serious allegation with respect to the identification parade was that

P.W.1 saw the appellant just I before the parade, but the identification parade was

not the sole basis for the conviction;

1991 TLR p55

RAMADHANI, OMAR AND MNZAVAS JJA

(ii) the persons on parade were required to look alike, but not to be uniform as

to their hair style; A

(iii)it is a sound practice which has been followed, and should be followed, to

give an opportunity to an accused to object to any assessor, however, the result of

such omission cannot be the same in each case; B

(iv) merely making the omission a ground of appeal without showing how the

appellant was prejudiced at the trial will not vitiate the proceedings.

Case Information

Appeal dismissed.

Bigeye, for the appellant. C

Mono, for the respondent.

[zJDz]Judgment

Ramadhani, Omar and Mnzavas, JJ.A.: On 27/7/86 Hawa d/o Issa (P.W.1), carrying

on her back a young D daughter, Mariam d/o Richard, the second deceased, was in

the company of Bakari s/o Mrimi, the first deceased, going from Njoro Village to

Matui village. On the way they came across Tongeni Naata, the appellant, who was

proceeding in the same direction to the Boma of Sokoine. After a brief chat the four

set out together in a file with E P.W.l being at the front, the first deceased in the

middle and the appellant in the rear. They went like that from about 1.00 p.m. to

5.00 when suddenly P.W.1 heard the first deceased complaining. As P.W.l turned

around she saw the first deceased speared in the back. F

The appellant chased P.W.l who was about five paces in front of where the first

deceased had fallen down. The appellant struck P.Wl with the bush knife (sime)

which he had and as she was falling down, the appellant grabbed the second deceased

off the back of P.W.l and slashed - off the left breast of P.W.1 who then fell down G

unconscious. She regained consciousness the following day early in the morning

when she was found by some Masais going to fetch water from the river. P.W.l

explained to them her ordeal and gave them a description of the appellant. She was

taken to hospital where on 5/8/86 she identified the appellant from among a group of

eight H Masai youths who were paraded past her bed one after another.

The appellant was accordingly convicted of both murders and was sentenced to suffer

death. He now appeals to us.

The appellant was advocated for by Miss Bigeye, learned counsel, who had three

grounds of appeal. First it was I argued that the identification parade was irregular

and defective. Second, the

1991 TLR p56

RAMADHANI, OMAR AND MNZAVAS JJA

A visual identification by P.W.l was said to have been not watertight and lastly that

the appellant was not given and opportunity to object to any of the assessors.

As for the first ground Miss Begeye cited the case of Mwango Manaa v R. (1936) 3

E.A.C.A. 29 which laid out the procedure for the conduct of a proper identification

parade.

B She argued that though that was a Kenyan case it had been followed with

approval by the courts in Tanzania. The learned counsel pointed out three

irregularities in the conduct of the parade. First, she recited what the appellant had

said namely that he was first shown to P.W.l and then he was marched together with

other seven C youths. Second, P.W.l said that she was told by A.S.P. Kilio

Ramadhani Dege (P.W.4), who conducted the parade, to point out the person who

had killed her daughter and cut out her breast. Miss Bigeyo said that the D address

should not have been in that way. She said that P.W.l should have been told that

among the eight youths she was going to see her assailant might or might not be

presented and them P.W.l should have been left to see if there was a person she

recognised. The third irregularity that was pointed out by Miss Bigeye was that the

eight E youths were not all looking alike as P.W.4 admitted that some of them did

not have their hair plaited. The effect of these irregularities, Miss Bigeyo submitted

was to vitiate the proceedings.

As for the second grounds challenging the visual identification of the appellant by

P.W.l, Miss Bigeyo said that F though P.W.1 had been with the Masai youth who

attacked her for about 4 hours, she never really had a good look at him since they

were walking in a file with herself being at the forefront and the youth at the rear.

Then, miss Bigeye added, that at the time of the incident things happened so fast that

P.W.1 did not have an opportunity to G look at the youth closely to be able to

identify him later.

In the last ground of appeal Miss Bigeye submitted that it is not a rule of law that an

accused person is given an opportunity to object to a assessor yet it is a rule of

practice. The appellant at the trial was not given such an H opportunity and, Miss

Bigeye submitted, that was fatal.

On behalf of the Republic/Respondent was Mono, Senior State Attorney. As for the

first ground of appeal Mr. Mono submitted that the parade was properly conducted.

He said that the only serious allegation was that P.W.l I had seen the appellant

before the parade was conducted. However, he argued, that was what the appellant

alleged. On the other had P.W.4 had given a concise account of

1991 TLR p57

RAMADHANI, OMAR AND MNZAVAS JJA

what he did and that, Mr. Mono explained, was what actually happened. He further

said that the identification A parade procedure is provided for in the Police General

Orders (P.G.O). No. 231. Paragraph (q) thereof requires the officer conducting the

parade to explain to the witnesses the purpose of the parade within the hearing of

those on parade and then to invite the witness to point out by touching any persons

he identifies. Mr. Mono B argued that in explaining the purpose of the parade the

officer will have to go over what had happened to P.W.1 and that is exactly what

Miss Bigeye complained against. Mr. Mono submitted then that no irregularity was

done by P.W.4 in addressing P.W.1 in the way he had done. C

As for the visual identification of the appellant by P.W.1, Mr. Mono submitted that

P.W.1 had all the reasons to remember the face of the appellant. Mr. Mono argued

that the appellant had a chat with P.W.1 and the first deceased before they started

their trip together and that the attack was in broad day light. Finally, Mr. Mono said

D the parade itself was done only ten days after the incident when memory was still

very fresh.

Mr. Mono conceded that it was a rule of practice to give an opportunity to an accused

person to object to an assessor but argued that its omission was not fatal as it had not

been shown that the omission occasioned any E injustice to the appellant.

We agree with Mr. Mono that the only serious allegation with respect to the

identification parade was that of P.W.1 having had the sight of the appellant just

before the parade. As for the other allegations they were not of F substance. We

agree that here we have two versions of what happened: P.W.4 did not say that the

appellant was shown to P.W.1 before the parade. Of course we are aware of the

possibility that he would hardly have said so even if that had been the case. On the

other hand, the appellant said that was what had been done. P.W. 4 was G not

cross-examined on that just as the appellant too was not controverted. However the

learned trial judge believed P.W.4 and we find no good reason to differ with her. But

also, as we shall point out later, the identification parade was not the sole basis for the

conviction. H

As for the other two points we agree that the requirements of P.G.O. No. 231 (q)

would of necessity demand the conducting officer to say moreless what he had told

P.W.1.

Secondly the persons on parade were required to look alike but not to be uniform as

to their hair style. I

1991 TLR p58

RAMADHANI, OMAR AND MNZAVAS JJA

A We again agree with Mr. Mono and the learned trial judge that P.W.1 had a very

good view of the appellant to be able to identify him. After all the appellant was

apprehended because of the description P.W.1 gave to the people who rescued her

the following morning. Then her identification was corroborated by Monica Sokoine

B (P.W.2) who saw the appellant at their boma that fateful evening and that he was

the only stranger there on that day.

The appellant had raised the defence of alibi. Mr. Mono withdrew, and properly so,

his objection to that defence C since the appellant had given notice of it as required

by section 194 of the C.P.A. The appellant claimed that he had been busy the whole

of the fateful day building his boma at Matui and that he never left for any where.

But the appellant did not bring any evidence to support his claim. This deliberate lie

goes to support his identification by P.W.1 as submitted by Mr. Mono.

D As for the last ground of appeal it was held in Ndiragu Nyagu v R. [1959] E.A.75

that it is a sound practice which has been followed and should be followed to given an

opportunity to an accused to object to any assessor. That was followed by this Court

in the appeal of Samwel Ndonya v R. Criminal Appeal No. 76/1988 E (unreported).

However, we added that the result of such omission cannot be the same in each case.

In that appeal we held that the omission did not prejudice the defence and that the

error was curable under Rule 108 of the Tanzania Court of Appeal Rules, 1979. Our

reasons were that though the appellant was represented F at the trial the court was

not reminded of the practice. Then there were no allegations of misconduct or

impropriety of any assessor. That is the situation in this appeal. The only difference

is that here the omission has been made a ground of appeal while in Samwel Ndonya

v R. it was not and that it was merely an afterthought. G But in our well considered

opinion merely making the omission a ground of appeal without showing how the

appellant was prejudiced at the trial will not vitiate the proceedings.

Before we conclude we wish to comment on sentencing in a case like this where an

accused person is convicted of H two counts of murder. The learned trial judge

merely said: "The accused is sentenced to death by hanging".

In Agnes Doris Liundi v R. [1980] T.L.R. 47 at 50 this Court said that in such a case:

I Sentence of death should only have been passed on one count,

1991 TLR p59

the convictions on the other two counts being allowed to remain in the

record. We accordingly amend the sentence to refer A to the conviction on the first

count only.

So the sentence should properly have read:

The accused is sentenced on the first count to suffer death by hanging. The

conviction on the second count to remain on B record.

Apart from that the appeal is devoid of any merit and is dismissed in its entirety. C

Appeal dismissed.

1991 TLR p59

D