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. F

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

G 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, H 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 I testimony of an expert who is uncertain;

(ii) the trial court's finding as to credibility of witnesses is usually

1983 TLR p53

MWAKASENDO JA

binding on an appeal court unless there are circumstances on an appeal court on the

A record which call for a reassessment of their credibility.

Case Information

Order accordingly.

No case referred to. B

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. D

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

nightwatchman 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 G 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

1983 TLR p54

MWAKASENDO JA

discovery that the chassis number of MZF 104 appeared to have been rubbed off and

A 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 B 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 E

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 F 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 G

recorded as saying.

I have been engaged in photography for 15 years. I painted them myself. I

have done it all H 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. I

1983 TLR p55

MWAKASENDO JA

Before we leave this witness, we wish to refer to one more significant passage of his

A 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. C

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 D 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 E

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 F 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,

G 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 H 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 I makes this point in these words:

1983 TLR p56

MWAKASENDO JA

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

B 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: C

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 E 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 G 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 H 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

1983 TLR p57

MWAKASENDO JA

reason he was called to testify for the prosecution was because of his experience in A

"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. E

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 F 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. H 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

1983 TLR p58

MWAKASENDO JA

and thus the engine belongs to car number MZF 104 which is that of the

second accused. The A 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. B

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 C 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 D 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 I 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 F

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 G 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

1983 TLR p59

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 B 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 C 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