WARYOBA MACHAGE v REPUBLIC 1991 TLR 39 (HC)

 

WARYOBA MACHAGE v REPUBLIC 1991 TLR 39 (HC)

Court Court of Appeal of Tanzania - Mwanza

Judge Sekule J

8 March, 1991 E

Flynote

Evidence - Identification - Parade mounted 4 years after the event - Whether

reliable.

Criminal Practice and Procedure - Trial in absentia - When provisions of section 226

of the Criminal Procedure Act can F be invoked.

-Headnote

The appellant and another person were charged with the offence of robbery with

violence four years after the event. Identification parade was mounted. The trial

proceeded in the absence of one of the accused. The trial G court was satisfied with

the reliability of the parade and convicted the appellant as charged. Although the

other accused had not entered his plea the court proceeded to try him in absentia. On

appeal the appellant denied that he was a party to the commission of the offence. The

court considered whether the identification parade mounted H four years after the

event could be relied on. The propriety of trying the other accused in absentia even

though he had not entered his plea was also examined.

Held: (i) The fact that P.W.I. did not take requisite and timely action leading to the

immediate arrest of the bandits I who are alleged to

1991 TLR p40

SEKULE J

A have been identified is an indication that the purported identification was

uncertain and unreliable;

(ii) the provision of section 226(I) of the Criminal Procedure Act, 1985 can

only be invoked in a situation B in which an accused person has had an occasion or

opportunity to appear in court after arraignment and had the charge read to him and

his plea taken and thereafter a hearing date set for his case.

Case Information

Appeal allowed.

C Nasimire, for appellant.

Mapunda, for the republic.

-Headnote

Sekule, J: The appellant Warioba s/o Machage and Nyamhanda Machage were jointly

charged in the District D Court of Musoma District at Musoma in Criminal Case No.

322 of 1990 with the offence of robbery with violence.

The appellant was the 1st accused on the change while Nyamhanga Machage was the

2nd accused at the trial.

E It was alleged in the particulars of the offence that on the 1st of November, 1986

at Sirori Simba village in Musoma District, Mara Region they jointly and together

stole 21 heads of cattle, valued at Shs. 336,000/= the property of one Samwel s/o

Waganda and that immediately before the said theft, they used guns to threaten one.

Deogratias Kingi in order to obtain and retain the said heads of cattle. It would

appear before the start of the trial, F the 2nd accused at the trial, absconded but the

trial against him seems to have continued. And they were both subsequently found

guilty as charged and the appellant was convicted accordingly. Conviction was not

entered G against his co-accused. And the matter was forwarded to this Court for

sentencing.

The brief background of the case is that at about 19 hrs. on the 1st of November 1986,

six bandits armed with bows and arrows, pangas iron bars and guns invaded the home

of PW1 Samwel Waganda. And went into the H cow shed and drove out 21 heads

of cattle. They did that after threatening Deogratias Kingi - PW2, PW1's herdsman.

They also took PW2 with him. They abandoned him much later in the course of their

journey in a forest. He was in bad shape as he claims to have been severely beaten.

He was rescued by the search party. I PW2 claims to have identified the appellant

and the other accused at the trial in the group of the bandits.

Thereafter PW1 reported the matter to a Baraza la Jadi and it is

1991 TLR p41

SEKULE J

alleged the appellant and the other person were called before the Baraza and admitted

to have participated in the A robbery and theft. They were then ordered to

compensate the complainant - PW2 and 20 heads of cattle were later seized from

them. However these heads of cattle were later returned to the appellant and his

colleague according to PW2 the direction of the village Chairman. B

PW1 then later instituted Civil Case No. 83 of 1989 in the Kiagata Primary Court in

respect of this matter. It would appear the case did not make any headway, and as a

result he ultimately reported this incident to the police and on the 12th of June 1990,

a criminal case which is the subject matter of this case was instituted in Court. C

The appellant denied at the trial as he does in his petition of appeal to have been

partly to the commission of this offence.

The Republic was represented by Mr. Mapunda learned State Attorney. I have had

opportunity to peruse and consider the evidence on record and Counsels' submission

and I am inclined to agree with Mapunda learned State D Attorney that the crucial

issue for determination in this case, was the question of identification of the appellant

as having been a party to the commission of the offence.

The trial court was satisfied with the evidence of identification of the appellant. E

I have on my part carefully revisited this evidence, and I must say with respect, it was

in my view far from being satisfactory. And it could not in my opinion be safely

relied upon to found conviction.

The sequence of events with regard to how the matter was handled by PW1,

eloquently speak in my view that the F alleged identification of the appellant and his

colleague was found doubtful even to the people who wanted such evidence to be

relied and acted upon.

The incident happened in 1986, and it took the complaint PW1, four years to report it

to the Police and institution G of the criminal proceedings that are the subject

matter of this appeal.

If PW2 had made that kind of positive and certain identification of the appellant in

the group of bandits as he claimed in his testimony, he should have mentioned him

and his colleague at the first opportunity, thus facilitating H their immediate arrest.

But this never happened. And according to the evidence on record, after the

incident, nothing happened until on the 26th of June 1987 when the appellant was

first taken to a "Baraza la Jadi" where he denied the accusation. I

If the identification of the appellant, had been positive and certain

1991 TLR p42

SEKULE J

A could PW1 had dilly dallied in taking steps that would have led to the immediate

arrest of the appellant and would he have taken that long to report and to seek the

assistance of the Police in this matter.

I do not think so, particularly considering the fact that the bandit made away with all

his stock.

B And the fact that he did not take the requisite and timely action leading to the

immediate arrest of the bandits who are alleged to have been identified, is an

indication in my view that the purported identification was uncertain, and unreliable.

C I am thus satisfied in my mind and as already observed the identification of the

appellant as having been one of the perpetrators of this crime was unreliable and it

would be most unsafe to uphold the conviction entered on that type of evidence. I

thus agree with Mapunda learned State Attorney that the conviction in this case

cannot be sustained.

D The appeal therefore succeeds and it is hereby allowed. The appellant is to be

released forthwith unless otherwise lawfully held. The appellant's co-accused was

convicted in his absence. I have noticed from the record of the trial Court that it

dealt with this accused in accordance with provisions of section 226 of the Criminal

E Procedure Act 1985.

I have however on a close scrutiny of the record of the trial Court noticed that this

accused never made even a single appearance in Court from the start of the trial or

from the time the charge was instituted in Court. He did not F therefore have even

a single opportunity to plead to the charge that was leveled against him jointly with

the appellant. It is only the appellant who pleaded to the change.

The Public Prosecutor is recorded to have made the following submission to the

Court:

G P. Prosecutor:The case is for hearing. I tender a new charge sheet to join the

present accused with another who is not in Court. New charge sheet read over and

explained to the accused whopleads:

Accused:It is not true.

H UNPGN.

P. Prosecutor:Second accused is at large and all efforts to trace him have

proved futile to date. I pray to proceed under I section 226 of the CPA as I have

witnesses who have come from far. I pray for leave to prosecute the case.

1991 TLR p43

SEKULE J

Court:Prayer granted. A

And the joint trial started. Perhaps it may be convenient to set here the relevant

parts of the provisions of section 226(1) of the Criminal Procedure Act:

226(1) If at the time or place to which the hearing or further hearing shall be

adjourned, the accused person shall not B appear before the Court which shall have

made the order of adjournment, it shall be lawful for such Court to proceed with the

hearing or further hearing as if the accused were present.... C

I have considered this matter, and with respect, I am inclined to the view that this

was wrong invocation of the provisions of section 226 of the Criminal Procedure Act,

1985. D

To my mind, those provisions can only be invoked in a situation whereby an accused

person has had opportunity or occasion to appear in Court after arraignment and had

the charge read to him and his plea taken and thereafter a hearing date set for his

case. And then if he thereafter absconds and he does not appear in Court at the set E

hearing day, the provisions of section 226 of the said Criminal Procedure Act, 1985

could be invoked.

This is the logical meaning, one could give to the words the hearing appearing in the

first line in the provisions of section 226(1) before the words further hearing as even

in the ordinary discharge of Court business in criminal F cases, as case is not set for

hearing before an accused person has had occasion to appear in Court after arrest. To

interprete these provisions as the trial Court did in this case, would mean to open the

possibility of trying in absentia people who are not even aware of the charges leveled

against them, or/and people who are not of the G jurisdiction of courts of this

country and have never been made aware of the charges confronting them as they

have never been arraigned and have never made even a single appearance in Court. I

am inclined to the view that this was not the intention of the provisions of section

226 of the Criminal Procedure Act. H

To my mind and as far as I can recollect, trials in absentia outside the scope of the

provisions of section 226 of the Criminal Procedure Court are not permitted. As

already said, since the appellant's co-accused had not made even a single appearance

in Court and pleaded I

1991 TLR p44

A to the charge, the provisions of section 226(1) in this case should not have been

invoked.

And as efforts to track him down had proved futile and since the Public Prosecution

wanted to proceed with the case, the proper cause that was open to him was to

withdraw the charge against this particular accused and let the B case against the

appellant alone to continue.

The trial against Nyamhanga Machage was therefore in my view illegal. It was null

and void. As his case was C otherwise linked to the case of the appellant in this

appeal and in the light of what I have observed with regard to the case of the

appellant, I decline to make an order for retrial in respect of this fugitive accused and

leave it to the prosecution to decide which course to take in the event he is

subsequently arrested. As no formal conviction was D entered against this accused I

will end here, otherwise using the powers of revision of this Court I would for the

reasons set out above, have quashed such conviction.

The appeal of the appellant is allowed and the conviction is hereby quashed.

E The appellant is to be released forthwith unless otherwise lawfully held.

Appeal allowed.

1991 TLR p44

F