YASSIN MAULID KIPANTA AND TWO OTHERS v REPUBLIC 1987 TLR 183 (HC)

YASSIN MAULID KIPANTA AND TWO OTHERS v REPUBLIC 1987 TLR 183 (HC)

Court High Court of Tanzania - Tabora

Judge Chipeta J

23 December, 1987 F

Flynote

Criminal Law - Evidence - Probative value of evidence based solely on identification -

Identification by single witness.

Criminal Law - Sentencing - Assessment of sentence - Factors to be considered. G

-Headnote

The three appellants were charged with and convicted of being in possession of instruments

with intent to commit a felony c/s 298(c) of the Penal Code. They were, H each, sentenced to

two years imprisonment. They appealed against their convictions and sentences.

Held: (i) Where evidence against the accused person is solely that of identification, such I

evidence must be absolutely water tight to justify a conviction;

1987 TLR p184

CHIPETA J

(ii) although the prevalence of an offence is one of the factors to be taken into A account

in assessing sentence, it is not the only factor and thus has to be considered in the light of other

factors.

Case Information

Conviction upheld but sentence commuted. B

Cases referred to:

1. R. v Eria Sebwato [1960)] EA 174.

2. Abdallah Bin Wendo v R. [1953] 20 EACA 166.

3. Waziri Amani v R. [1980] TLR 250.

4. Silvanus Leonard Nguruwe v R. [1981] TLR 66 pg. 68. C

[zJDz]Judgment

Chipeta, J.: The three appellants, namely, Yassin Maulidi Kipanta, Nasibu Hussein Bubu and Ali

Haruna Kalonda were jointly charged before Tabora District Court with the offence of being in

possession of instruments with intent to commit a felony c/s D 298(c) of the Penal Code. They

were all convicted as charged and each of them was sentenced to two years imprisonment.

Dissatisfied, they now appeal against their convictions and sentences.

The Prosecution's evidence was that during the night of 2nd March 1987, one Simon Birafumba

(P.W.1), who is a watchman, was on duty at Mabama C.C.M. office. At or E about 8.00 p.m.

that night, while standing at a corner of the building, P.W.1 saw three people whom he

identified to be the three appellants in this appeal. P.W.1 observed that the first appellant had a

panga and an iron bar, the second appellant had three F spears, while the third appellant had

two spears. As the appellants approached the building, one of them asked, "Mlinzi yuko wapi".

Thereupon, P.W.1 entered the office and saw the appellants touching the door and windows of

the building, and so P.W.1 raised an alarm.

The alarm was answered by the ward secretary (P.W.2) who immediately proceeded to G the

scene accompanied by a group of villagers among whom were militiamen.

On arrival at the office, which is only 50 paces from P.W.2's house, P.W.2 and his group saw the

second appellant running away from the scene. The second appellant H was then chased and

apprehended with his three spears. On being interrogated, the second appellant said that he had

been with the first and third appellants.

The villagers then started looking for the two appellants. They later located the third appellant

hiding under a tree near the C.C.M. office, and the first appellant was in a I house which is not

his own. Both of them were found in possession of weapons as described by

1987 TLR p185

CHIPETA J

P.W.1. They were then accordingly charged with this offence. A

In his defence, the first appellant said that on the day in question he was drunk and that he was

arrested for no reason in his room at about 9.00 a.m. Similarly, the second appellant said that on

the day in question he was very drunk and was arrested in his B room at about 8.00 p.m. for no

reason. The third appellant said that he was arrested while on his way home for no reason, and

that he too was drunk.

The learned trial senior district magistrate believed the prosecution witnesses as truthful, and

after carefully considering the circumstances in which P.W.1 saw the appellants, the C learned

magistrate was satisfied that P.W.1 had correctly identified the appellants. He accordingly

convicted the appellants as charged.

It is now well settled that where the evidence against an accused person is solely that of

identification such evidence must be absolutely watertight to justify a conviction. (see D R. v

Eria Sebwato, [1960] E.A. 174); and where the evidence of identification is that of a single

witness, there is need to test such evidence with the greatest care; what is needed is other

evidence, direct or circumstantial, pointing to the accused's guilt from which a court can

reasonably conclude that the evidence of identification, although based E on the testimony of a

single witness, can safely be accepted as free from the possibility of error. (See Abdallah Bin

Wendo v R. (1953) 20 E.A.C.A. 166). In the words of the Court of Appeal of Tanzania in the

case of Waziri Amani v Republic [1980] TLR 250, at pages 251-252: F

... evidence of visual identification, as Courts of in East Africa and England have warned

in a number of cases, is of the weakest kind and most unreliable. It follows, therefore that no

court G should act on evidence of visual identification unless all possibilities of mistaken

identity are eliminated and the court is fully satisfied that the evidence before it is absolutely

watertight.

In the instant case, there was moonlight on the night in question; P.W.1 and the H appellants

live in the same village; P.W.1 saw the appellants from a distance of only twelve paces; and the

circumstances in which P.W.1 saw the culprits cannot be said to have been calculated to make

identification difficult. Indeed none of the appellants I suggested any reason why any of the

prosecution witnesses would wish to frame them.

1987 TLR p186

CHIPETA J

The evidence of identification does not stand alone. It is supported by other evidence; A the

second appellant was arrested while running away from the scene while the third appellant was

arrested as he hid under a tree; and at the time of their arrest that same night, the appellants

were found in possession of weapons described by P.W.1. Besides, the second appellant, who

was the first to be arrested, named the first and third B appellants to have been with him.

On the basis of the foregoing, I respectfully agree with the learned state attorney that the

appellants were properly and correctly identified.

The next question for consideration is whether these facts constitute the offence charged. C If a

man goes armed to a place where he has no lawful business at an odd hour and, upon hearing an

alarm, takes to his heels or goes into hiding and fails to give a reasonable explanation for his visit

to the place, the reasonable and inescapable inference D must be that such person is in such

place for the purpose of committing a felony.

In the present case, the circumstances in which the appellant were seen at the scene, the hour of

the night, their conduct at the scene and the nature of their weapons all lead to an irresistible

inference that they were there with the intent of committing a felony and that E their weapons

were instruments of housebreaking.

For these reasons, I am of the view that the conviction were fully justified.

I now turn to the sentences. In sentencing the appellants, the learned magistrate took into

consideration the fact that the offenses of breaking are very common in his District F and so he

felt that the appellants deserved stiff sentences. With unfeigned respect, the prevalence of an

offence is one of the factors to be taken into consideration in assessing sentences. But it is not

the only consideration. It must be taken into consideration along G with other factors. In the

words of the Court of Appeal of Tanzania in the case of Silvanus Leonard Nguruwe v Republic,

[1981] TLR 66 at page 68:

Prevalence of an offence is indeed a factor which a trial court should always take into

account H when assessing a proper sentence to impose in any particular case; but it would be

contrary to principle to consider this fact either as the predominant or the only factor that must

guide the court in its consideration of sentence. I

1987 TLR p187

In the instant case, the appellants were first offenders and youths aged between 18 years A and

27 years; and considering their conduct, it seems to me that they acted more foolishly that

criminally. The nature of the offence itself is aimed at preventing the omission of more serious

crimes.

For these reasons, I am of the view that the sentences were manifestly excessive. A B sentence

of nine months imprisonment in my opinion, would have met the justice of the case. Since the

appellants have already served eight months of the sentences, the sentence of two years

imprisonment imposed on each of them is hereby set aside and C substituted therefore is such

sentence as will result in each of the appellant's immediate release from custody unless

otherwise lawfully held.

On fine, save for the variation of the sentences, the appellant's appeal is otherwise dismissed. D

Appeal dismissed.

1987 TLR p187

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