Omari Ahmed v Republic 1983 TLR 52 (CA)

OMARI AHMED v REPUBLIC 1983 TLR 52 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mwakasendo JJA, Makame JJA, Kisanga JJA

October 20, 1983

CRIMINAL APPEAL 33 OF 1983 E

Flynote

Evidence - Experts - Evidence of expert photographer with occasional experience in examining engines and chassis of suspected numbers - Unsafe to base conviction on uncorroborated testimony of such expert.

Evidence - Credibility - Trial court's finding as to credibility of witness usually binding on appeal court.

Evidence - Experts - Requirements.

-Headnote

The appellant was convicted of theft of a motor vehicle contrary to section 265 of the Penal Code. On appeal, the conviction was challenged on the ground that the testimony of the expert who examined the engine and chassis of suspected numbers could not be relied on in this case since the basis of his expertise had not been established. Secondly, it was argued that the first appellate court had improperly interfered with the trial court's finding as to credibility of witnesses. The court of appeal considered both points.

Held: 

(i) There must be some evidence connecting an accused with a theft other than the testimony of an expert who is uncertain;

(ii) the trial court's finding as to credibility of witnesses is usually binding on an appeal court unless there are circumstances on an appeal court on the record which call for a reassessment of their credibility.

Case Information

Order accordingly.

No case referred to.

M.A. Lakha for the appellant.

E. Uronu for the respondent.

[zJDz]Judgment

Mwakasendo, J.A. read the following considered judgment of the court: The appellant, C Omari Ahmed, was charged together with another person, one Andrew John, on a count of stealing motor vehicle contrary to section 265 of the Penal Code, or in the alternative, with receiving a stolen motor vehicle contrary to section 311 (1) of the Penal Code.

The present case is simple enough. The salient facts may be briefly stated as follows, Hemed Sefu, P.W.1., told the trial District Court that he was a driver of a motor vehicle, Peugeot 504, registration number TZ 45799 which he usually parked at night at a parking lot along Kigoma Street, in Dar es Salaam. He paid Shs 5/- to a night watchman E to watch over the vehicle during the night. This arrangement was known and apparently approved by Sefu's employer, the owner of the vehicle, one Hemed Abdalla, P.W.3. On the night of 18th July, 1981 the motor vehicle registration number TZ 45799 was stolen. Hemed Abdalla reported the matter to the police. On 30th October, 1981, F Hemed Abdalla saw a motor vehicle being driven along a road within the city of Dar es Salaam which he suspected to be his stolen motor vehicle.

This vehicle was a Peugeot 504, registration number MZF 104, dark blue in colour. He reported his suspicions to the police who then had the suspected vehicle traced and impounded for further investigations. On closer inspection of the motor vehicle, registration number MZF 104, Hemed Abdalla was convinced that this vehicle was one and the same vehicle as his stolen motor vehicle, registration number TZ 45799. His reasons for this view were his discoveries that the back seat of MZF 104 was similar to the back seat of TZ 45799; H that the petrol tank cover of MZF 104 had no spring, which was also true of the petrol tank cover of his stolen motor vehicle; that the end of the exhaust pipe on MZF 104 was welded, which was also the case with the end of the exhaust pipe on his stolen motor vehicle. Hemed Abdalla's suspicions and presumably, those of the Police, were I confirmed by a further discovery that the chassis number of MZF 104 appeared to have been rubbed off and superimposed with a new number. Following this discovery the Police investigating officers called in inspector Stanley Elisente, P.W.5, to help in establishing the true chassis number of MZF 104. Stanley in this evidence before the District trial Court told the Court how he went about his task of establishing the true chassis number of MZF 104. He said:

I am working with I.B. Head Office. I have been a police officer for the last 20 years. 15 years with I.B. My work is to check engines and chassis and all other suspected numbers. On C 23/3/82 I was called by Police Msimbazi. I went there to investigate chassis and engine numbers of motor vehicle MZF 104 which are in dispute. I was shown it by W.P. Kamade. I made my observations. I took photostat "A". I opened the bonnet where chassis numbers are D marked. I took a photograph marked "B". I took a photograph showing original numbers. When I removed dust there were numbers 1082235 which were discovered to be marked which were for MZF 104. I started to investigate by applying powder. I discovered numbers 23...90. There was a gap which indicated that some other numbers might be in between. Therefore 1082235 were false numbers and numbers 23...90 were the correct number of the vehicle. From the registration card chassis number 2346990, I believe the numbers to be of the vehicle Peugeot 504, TZ 45799. I have formed the opinion that they were for motor vehicle Peugeot 504, chassis number is 2346990... I hereby tender my report as exhibit I made regarding the disputed number...

In answer to questions put to him by the advocate for Omari Ahmed, Stanley is recorded as saying.

I have been engaged in photography for 15 years. I painted them myself. I have done it all alone. My work is to take photographs. I have attended a course and I have no certificate for this case. I have prepared only one copy ...I took a photograph on the left side alone. I did not take a photograph for the numbers on the engine. The numbers are only seen in one point alone. It is written 1082235. 

Before we leave this witness, we wish to refer to one more significant passage of his evidence in cross-examination. It reads:

I was informed what the numbers were missing I could not read the middle numbers. Although I used acid some numbers are not visible. The acid is to show the numbers (to clean B it). I do not know what method was used to rub out the original number. The correct number 23469990 from the registration. This is what I think. It may be another number not 2346990... I am working for the police. I have checked the number and registration card that is why I have discovered.

There are many other witnesses for the prosecution but we do not think for the purpose of this appeal we need to refer to the evidence of any other witness for the prosecution, except prosecution witness number 10 of whom we say more later. Now then, at the end of the case for the prosecution the trial District Court found, correctly in our view, that no case had been made out against Andrew John. He was accordingly acquitted.

In his defence Omari Ahmed denied the charge and called two witnesses in support of his case; after which the learned trial Magistrate carefully analyses the evidence presented before him and reached the considered view that the prosecution had failed to prove its case beyond reasonable doubt and, therefore, acquitted Omari Ahmed of the offence charged. The Republic being aggrieved by this finding appealed to the High Court which after a reappraisal of the evidence on record set aside the acquittal of  Omari Ahmed and substituted therefore a conviction for stealing and a sentence of two years' imprisonment.

Before this court the appellant and the Republic were represented by Messrs Lakha, learned advocate, and Uronu, learned State Attorney, respectively.

Mr. Lakha has attacked the finding of the first appellate Judge on many grounds, some minor and others substantial. We will consider here only those grounds which relate to the evidence of P.W.5 and P.W. 10, two witnesses on whom the learned High Court judge appears to have heavily relied in dealing with the first appeal. The learned first appellate judge's approach to the task before him, that is, the re-appraisal of the evidence on record, appears to have been determined by a pre-judgment that the learned trial magistrate dealt with the case in an unfair and uneven-handed manner. He makes this point in these words:

I must point outright that the learned trial Magistrate did not form a balanced view of the A evidence in support of the charge and indeed he misdirected himself by disregarding the evidence for the prosecution. We will now examine his re-appraisal of the evidence to see if his opinion of the trial magistrate's finding in the case is borne out by the evidence on record. We begin by considering the evidence of Abdalla Nasoro, P.W. 10. The learned first appellate judge's analysis of this witness's evidence is quite short and reads as follows:

More and above, there is the evidence of P.W. 10 who asserted that he bought a body of a car from the respondent and it is alleged to be a body of a car which the second accused bought from P.W.6 and P.W.7.. This evidence gives support to the case for the prosecution and I do D not find any reason as to why the learned trial magistrate disregarded it.

With respect, we think the reason why the trial magistrate disregarded the evidence of P.W. 10 is obvious enough and we are surprised that the learned Judge could not see this from reading the witness's evidence at the trial, particularly his evidence in cross-examination. We think it is plain from reading the record that Abdalla Nasoro was a most unsatisfactory and unreliable witness. This is the witness who admitted in Court to F being told by the Police to tell lies: "I paid him Shs 40,000/= I was told by the Police to say second accused received Shs. 30,000/= I was told to say a lie by Police" P.W. 10 being that kind of witness, we cannot see how any reasonable tribunal could accept him as a witness of truth. We are satisfied that the learned trial magistrate acted properly in disregarding this particular witness's evidence. We thus agree with Mr. Lakha that the learned High Court Judge erred in taking P.W. 10's evidence in consideration of the appeal against the appellant.

Next, we turn to consider the learned first appellate judge's analysis of the evidence of Stanley Elisente, P.W. 5. The learned first appellate judge quite correctly considered this witness to be an important one for the prosecution. The prosecution, as it seems clear to us, put forward Stanley Elisente as an expert, who by his experience in the Identification Bureau had acquired special knowledge in photography and apparently, in the identification of disputed chassis and engine numbers of motor vehicles. However, I since his knowledge in photography was not needed in this case, it appears that the only reason he was called to testify for the prosecution was because of his experience in "checking engine and chassis and all other disputed numbers". We have seen from an earlier outline of Stanley Elisente's evidence that his claim to be an expert on the subject matter before the court is founded on his 15 years' experience with the identification Bureau as a photographer and an occasional examiner of engines' and chassis' B "suspected numbers". It will be recalled that Elisente readily admitted in his evidence that he was told by others what the alleged "rubbed off" or "missing" numbers were. He also readily confessed that what he thought was the "rubbed off" number could be another number and not necessarily number 2346990. The learned trial Magistrate who thought C that Elisente's evidence on this subject matter was no more than a mere guess, appears to have been reassured in this view when he visited the locus in quo and saw with his own eyes that the engine number of MZF 104 which Elisente never bothered to examine was intact. In these circumstances the learned trial Magistrate found no difficulty D in rejecting Elisente's evidence and acquitting the appellant. But as we have already said the learned first appellate judge reached a different conclusion from that of the Magistrate. We will now examine his reasons for doing so.

The learned judge after accepting Elisente as an expert in identifying disputed engine and chassis number of motor vehicles recapitulated Elisente's evidence-in -chief and then said:

It should here be noted that the chassis number of the motor vehicle of the complainant which was stolen is 23469990 as shown on the registration card Ex.

"A". Thus these two figures that's 23 and 90 correspond with the first and last two figures of the chassis numbers of the stolen motor vehicle. This then gives support to the prosecution evidence that the chassis of G the disputed car must be that of the stolen motor vehicle and not that of car MZF 104 as Mr. Lakha the learned counsel for the second accused wanted this court to believe because the chassis numbers of the car MZF 104 which the second accused bought from P.W. 6 and P.W. 7 is number 1082235 thus the first two numbers for this car are 10 and the last two are 35. The learned trial magistrate disregarded this part of evidence of P.W. 5 stating in his judgment as I tried to demonstrate above in that he himself had gone to view the scene where the disputed motor vehicle was kept and he found out that the engine numbers of the motor I vehicle was not interfered with and thus the engine belongs to car number MZF 104 which is that of the second accused. The record of the proceedings does not say that the Court ever went to view the "locus in quo" though several requests to this effect were made by the Public prosecutor.

We would like to make two observations on the above comments of the learned first appellate judge. First, in view of our appreciation of the evidence given by Elisente at the trial we find it hard to accept him as a person with any specialised knowledge in the field of identification of disputed engine and chassis numbers. Contrary to what the learned first appellate judge says about Elisente's working experience, it is clear to us that Elisente's experience for the last fifteen years was mostly in the field of photography. The witness himself confirmed this to be so when he said. "I have been engaged in  photograph for 15 years". We can see nothing on record to qualify him as an expert in the "identification of disputed engine and chassis numbers of motor vehicles which are alleged to have been stolen". Therefore, it seems clear to us that the learned trial magistrate was right in treating Elisente's evidence as no more than a mere guess. This E view appears to find some support in Elisente's evidence in cross examination when he said "I was informed what numbers were missing could not read the middle numbers", and again this "This is what I think. It may be another number not 23469990".

Our second observation relates to the court's visit to Ilala to view the motor vehicle MZF 104. Although the learned first appellate judge doubts the claim by the learned trial Magistrate that the court visited Ilala to see MZF 104 and Msimbazi to view the body of the "disputed vehicle", we think the evidence fully supports the learned trial Magistrate's claim. His claim is borne out by the evidence of Selemani Abdalah, P.W. 4 who said on cross-examination "I was present at Msimbazi the court moved there". There is also a reference of the court's visit to Ilala and Msimbazi in the evidence of P.W.6 and in the final submission by the advocate for the second accused.

Referring to this visit the H advocate is recorded as saying: "The court visited the vehicle and checked the vehicle. The engine numbers were not interfered with". This statement by counsel is echoed by the learned trial magistrate in his judgment thus:

"The court visited the vehicle and checked the vehicle, the engine numbers were not interfered with". To conclude this I aspect of the case we have no doubt that the court, that is, the magistrate and the prosecutor, counsel for the accused, the accused, and witnesses, visited the scene where the motor vehicle MZF A 104 was parked for the purpose of seeing the vehicle and examining it. We cannot see anything wrong with that. Indeed, we think the visit was a must in view of the admission by Elisente that he had not examined the engine number of MZF 104. All in all, we are unable to agree with the learned first appellate judge that the learned trial magistrate erred in not accepting the doubtful evidence of P.W.5 and P.W. 10. We are therefore satisfied that the learned first appellate judge was wrong in convicting the accused on the evidence on record.

For these reasons, we quash the conviction of the appellant by the High Court, and set aside the sentence imposed on him. He is to be discharged from prison forthwith unless he is incarcerated therein for some other lawful cause. We order accordingly.

D Order accordingly.

1983 TLR p59

E