IN THE COURT OF APPEAL OF TANZANIA
AT ARUSHA
(CORAM: MROSO, J.A., KAJI, J.A., And RUTAKANGWA, J.A.)
CRIMINAL APPEAL NO. 213 OF 2007
1. BENARD MASUMBUKO SHIO
2. CHARLES WIDMAN …………..…. APPELLANTS
VERSUS
THE REPUBLIC ……………………………………..… RESPONDENT
(Appeal from the Decision of the High Court of Tanzania
at Moshi)
(Munuo, J.)
dated
the 28th day of February, 2000
in
Criminal Appeal No. 72 of 1999
------------
JUDGMENT
OF THE COURT
2 & 23 October,
2007
RUTAKANGWA,
J.A.:
The two appellants,
Benard and Charles, the 1st and 2nd appellants
respectively, were charged in the District Court of Moshi along with three
others on one count of armed robbery contrary to sections 285 and 286 of the
Penal Code. The robbery took place at
about 23.45 hours on 6th December, 1995 at Sambarai area of Moshi
District at the home of one Valerian Massawe, who testified as PW7. The properties robbed included cash money
Tshs. 2,500,000/=, clothes, a phoenix bicycle, one bag and one sewing
machine. During the course of the
robbery a gun was used and two people who were in the house at the time, were
physically assaulted and one of them wounded.
These were PW1 Flora Valerian Massawe and PW2 Peter V. Massawe.
Although
the appellants and their colleagues denied the charge, they, alone, were
convicted as charged. They were sentenced
to the statutory minimum sentence of thirty years imprisonment. They were aggrieved and appealed to the High
Court. The High Court, sitting at Moshi
upheld their conviction and sentence and dismissed their appeal. Still aggrieved they lodged this appeal.
Each
appellant filed his own memorandum of appeal containing six grounds of
complaint each. Briefly, the appellants’
complaints zero in on these issues. One, that the prosecution did not prove
its case beyond reasonable doubt. Two, that their trial was irregularly
conducted and therefore null on account of failure to conduct a preliminary
hearing. Three, that the trial was irregular because the evidence of PW2 was
taken without a voire dire being
conducted. Four, that the trial District Court erred in law in admitting in
evidence their retracted confessions contained in their alleged caution
statements. Five, the two courts below erred in law in failing to note that a
torch which the 2nd appellant Charles was allegedly arrested with
was not tendered in evidence contrary to the mandatory requirements of section
39 of the Criminal Procedure Act, Cap. 20 (or the Act hereinafter). Six, that
the two courts below erred in law in rejecting their defence evidence and
proceeded to ground the conviction for robbery on contradictory, inconsistent
and unreliable evidence. Seven, that the two courts below erred
in law in acting on the identification evidence of PW1 who did not give the
physical description of the 1st appellant.
In this
appeal the appellants advocated for themselves.
The Republic which vigorously resisted the appeal was represented by Mr.
Boniface, learned Senior State Attorney.
Before
discussing the grounds of appeal and the respondent’s response to them, we have
found it necessary to give a brief summary of the evidence which led to the
conviction of the appellants. It was as
follows:
On the
evening of 6th December, 1995 PW7 was on his way back home from Dar es Salaam
Once in the
house the two invaders began to attack both PW1 and PW2. PW1 was at first hit with a long double-edged
knife or “sime” on the forehead. She was then continuously beaten by the
intruders, who had doubled to four, while being asked to surrender money to
them. She ultimately told them to take
anything they wanted. At that, the
bandits switched off the lights in the living room. They ransacked the house and collected all
they wanted. They then hit PW1
unconscious and left. PW1 was
subsequently sent to the K.C.M.C. hospital where she was admitted. However, before PW1 was hit unconscious she
had managed to recognize the appellant Charles and one Amedeus Assenga whom she
knew well, among the robbers.
Furthermore, while the bandits were ransacking the house, PW2 sneaked
out of the house and went to inform their neighbour, PW3 John Massawe, what was
happening.
PW3 rushed
to the home of PW7 with his younger brother and PW2. As they approached the house they saw one
person with a bicycle and a torch on his forehead making his escape through a
barbed-wire fence. An alarm was
raised. People gathered and gave chase
to the escaping person who sought refuge in a banana farm. When that person finally emerged from the
farm without the bicycle but still with a torch affixed on his forehead, he was
arrested and taken to PW7’s house. That
person was the 2nd appellant Charles. The bicycle which Charles had left in the
farm was recovered. It was the bicycle
which had earlier been robbed. It was
subsequently admitted in evidence as exhibit P3.
Charles was
handed over to PW4 No. C.760 D/Cpl Peterson who rushed to the scene of the
crime on receiving a report of the robbery.
Charles allegedly confessed to PW4 to have participated in the robbery,
and named his accomplices who included the 1st appellant Benard. He then led them to Benard’s residence.
The house
of Benard was searched in the presence of his Kitongoji Chairman, PW3 Michael Arcado. Inside the house two bags were found. One of the bags contained clothes. The clothes included four pairs of trousers
and 4 shirts and a vehicle inspection report belonging to PW7. Benard claimed that the bag and clothes were
given to him by one Amadeus. The
appellants were then taken to the Moshi Central Police Station and subsequently
charged.
In his
sworn evidence Benard told the trial court that he was awakened at 2.00 a.m. on
6/12/1995 by some “Sambarai” people
who were accompanied by two armed “soldiers”.
These people seized some of his properties. They took him out of the house, had his hands
and legs tied with ropes. Then the bags
containing PW7’s properties were put in his house so as to fake evidence before
PW6 arrived. When the chairman arrived
he told him what had happened. He was
taken to the police station where on 8/12/1995 he was given some papers and
asked to sign. He was beaten and decided
to sign them. He denied committing the
robbery. He called his wife, Grace
Charles (DW1) to confirm his story.
On his part
the 2nd appellant Charles in denying the charge had a very
interesting story to tell. On 6/12/1995
at 6.30 p.m. he was requested by his neighbour to escort her/him to hospital to
take a sick child. After getting
treatment they left for home at about 8.00 p.m.
By that time there were no buses.
They had to make it on foot.
After covering a distance of over 4 kilometers they came across a group
of people who told them that a theft had occurred and they were suspects. However, those people decided to let his
companion (a woman) go and he was detained.
At that juncture policemen arrived.
He was handed over to the policemen on the allegation that he was a
thief. He was then taken to the police
station where he was tortured and forced to confess to having committed the
robbery. Because of the torture, he
sustained injuries and had to be admitted in hospital for nine days.
He also
attacked the credibility of PW1, PW2, PW3, PW4, PW5 and PW7 on the basis that
they contradicted each other.
In
convicting the two appellants, the learned trial Resident Magistrate was
satisfied that the two appellants had committed the offence because of their
voluntary confessions, being found in possession of some of the stolen
properties and Charles was positively identified at the scene of the crime.
The learned first appellate judge
dismissed their appeal for almost similar reasons. She was of the firm view that even without
relying on the retracted confessions, the visual identification evidence, the
fact that Charles was “caught red-handed
within the farm of the complainant running from the scene of crime”, and
the doctrine of recent possession, conclusively proved that the appellants were
among the robbers.
At the hearing of the appeal the two
appellants opted to say nothing in elaboration of their grounds of appeal. It was the appellant Charles, who reiterated
that PW1 was a liar because she never tendered in evidence her PF3 to prove
that she was indeed admitted at the K.C.M.C. hospital.
On his part, Mr. Boniface urged us to
dismiss the appeal. He assigned these
reasons for his stance. Firstly, the 2nd appellant
was arrested in the vicinity of the scene of the crime after he had abandoned
the robbed properties. Thereafter he
led the search party to the home of the 1st Appellant where some of
the robbed properties were recovered. Secondly, the 1st appellant
was found in possession of PW7’s robbed clothes and he never gave any
reasonable explanation to account for his possession of the same. Thirdly,
the 2nd appellant was positively identified by PW1 at the scene of
the crime to have been among the four robbers who invaded their house.
Regarding
the issues of law raised by the two appellants, Mr. Boniface candidly conceded
to the mentioned irregularities. On the
failure to conduct a preliminary hearing as required under section 192 of the
Criminal Procedure Act, Mr. Boniface submitted that the omission in the
circumstances of this case did not occasion any injustice to the
appellants. Regarding the failure to
conduct a voire dire before the trial
court received the evidence of PW2 the learned Senior State Attorney urged us
to hold the omission to have been innocuous as neither the trial court nor the
first appellate court relied on PW2’s evidence to ground the appellants’
conviction. Furthermore, he argued that
on the basis of established law, such evidence should be taken as unsworn
evidence. However, Mr. Boniface was of
the firm view that the cautioned statement of Benard (exhibit P6) was
irregularly received in evidence as no inquiry was made to determine the
voluntariness or otherwise of the alleged confession. He accordingly urged us to discount the
alleged confession.
Responding
to Mr. Boniface’s submission, Benard urged us to hold that the bag containing
the clothes of PW7 was planted by the police in his house before the arrival of
PW6. The appellant Charles pressed us to
find PW1 an untruthful witness as she neither mentioned his name to PW2 nor did
she tender in evidence her PF3 to support her claim that she was actually
admitted at the K.C.M.C. hospital.
In
disposing of this appeal we have found it convenient to start with the issue of
non compliance with section 192 of the Act.
We are satisfied that the trial
District Court erred in law in failing to hold a preliminary hearing as
provided for in section 192 of the Criminal Procedure Act and the rules made
thereunder, as argued by the appellants.
That being the case, we have asked ourselves this question: Did this omission vitiate the trial of the
appellants? Mr. Boniface is of the view
that it did not. We entirely agree with
him. We find support for this view in a
number of decisions delivered by this Court on the issue. These decisions include: Mkombozi
Rashid Nassor v R, Criminal
Appeal No. 59/2003 (unreported), Joseph
Munene and Another v R, Criminal Appeal No. 109/2002
(unreported), and Christopher Ryoba v R, Criminal Appeal No. 26 of 2002.
In Ryoba’s case there was non compliance
by the trial High Court with the provisions of section 192 (3) of the Act in
that no memorandum of agreed matters was drawn up along the requirements spelt
out in the said sub-section. The
appellant came to this Court seeking the nullification of his trial on this
ground only. The Court held that only
the proceedings dealing with the preliminary hearing were vitiated and
dismissed the appeal. Before dismissing
the appeal, however, the Court observed thus:-
“….. conducting a
preliminary hearing is a necessary prerequisite in a criminal trial. It is not discretionary. The procedures
stipulated under s. 192 are mandatory.
And needless to say, s. 192 was enacted in order to minimize delays and
costs in the trial of criminal cases. However,
in the most unlikely event that a preliminary hearing is not conducted in a
criminal case that trial that proceeds without it will not automatically be
vitiated ….. the proceedings could be vitiated depending on the nature of a
particular case …..”
[Emphasis
is ours].
In Joseph Munene’s case (supra), the trial
District Court did not hold a preliminary hearing at all. The appellants were convicted as charged of
armed robbery. Their appeal to the High
Court was dismissed. One of their
grounds of appeal to this Court was on non compliance with section 192 of the
Act. They asked the Court to nullify the
trial which led to their conviction on this ground.
In
rejecting this ground of appeal, the Court said:-
“….. From our
perusal of the record we have found nothing suggesting that the appellants’
trial which proceeded without holding a preliminary hearing either delayed or caused
extra costs or prejudiced the appellants
…..
Under the
circumstances we are satisfied that the proceedings which were conducted
without invoking the procedure laid down under section 192 of the Act, were not
vitiated”.
Likewise,
from our dispassionate study of the record in this appeal we have gleaned
nothing therefrom indicating that the appellants were prejudiced in any way by
this non-compliance. The appellants did
not tell us that they were prejudiced by this omission. We subscribe to what the Court held in the
above cited cases. The trial was not
vitiated. We accordingly dismiss this
ground of appeal.
Equally
admitted is the fact that the evidence of PW2 who was 14 years old at the time
he testified, was taken on oath by the trial court without conducting a voire dire. We share the observation by Mr. Boniface that
it is now established law that such evidence ought to be reduced to the level
of unsworn evidence and all things being equal it can be acted upon. See, for instance, the decisions of this
Court in the cases of:-
(i) Dahiri Ali v R (1987) T.L.R. 218
(ii) Deemay Daati v R, Criminal Appeal No. 80 of 1994
(iii) Herman Henjewele v R, Criminal Appeal No. 164 of 2005
(unreported).
All the same, as was correctly observed
by Mr. Boniface, the appellants were not prejudiced at all by this
irregularity. This was so as neither the
trial District Court nor the first appellate court relied on the evidence of
PW2 in convicting the appellants and/or sustaining their conviction on
appeal. We accordingly find this ground
of complaint to lack merit.
Another ground of complaint, which is
purely a point of law, is that the trial District Court erred in law in
admitting in evidence the retracted confessions of the appellants, exhibits P6
and P8 without conducting a trial within a trial.
It is true that when PW5 No. 9616
D/Staff Sgt. Adrum and PW8 No. C.8360 D/Cpl. Thomas were about to tender in
evidence those caution statements which they had recorded, the appellants
raised objections. The basis of the
objections were that they were forced to sign the statements. All the same these were admitted without any
further assurances from the prosecution that they were voluntarily made and
signed. The prosecution had a duty to
prove this under section 27 (2) of the Evidence Act, Cap. 6 R.E. 2002.
In response to this ground of complaint
Mr. Boniface agreed with the appellants.
It was his submission that no inquiry was made by the trial District
Court to determine the voluntariness or otherwise of exhibit P6. He accordingly invited us to discount it.
There is no doubt that exhibits P6 and
P8 amount to confessions. The said
confessions were made to police officers.
All things being equal they were admissible under section 27 (1) and (2)
of the Evidence Act. These provisions
read as follows:
“27 – (1) A confession voluntarily made to a police
officer by a person accused of an offence may be proved against that person.
(2)
The
onus of proving that any confession made by an accused person was voluntarily
made shall lie on the prosecution”.
The allegation by the appellants of
being forced to sign the caution statements was not disputed by the
prosecution. So the involuntariness of
the alleged confessions was not negated at all.
The two courts below, unfortunately, did not address their minds on this
aspect of the case. As the voluntariness
of exhibits P6 and P8 was not proved by the prosecution, we hold that the trial
court erred in law in relying on them in its judgement. We shall accordingly discount exhibits P6 and
P8 in our judgement as pressed by Mr. Boniface.
The 2nd appellant has raised
another interesting point of law. This
relates to non production in evidence of the torch he was arrested with. He is claiming that this was contrary to the
mandatory requirements of section 39 of the Act. In order to answer this complaint
satisfactorily we shall first reproduce this section in full. It reads thus:-
“39. For the purposes of this Part –
(a)
anything
with respect to which an offence has been or is purported on reasonable grounds
to have been committed;
(b)
anything
as to which there are reasonable grounds for believing that it will afford
evidence of the commission of any offence; and
(c)
anything
as to which there are reasonable grounds for believing that it is intended to
be used for the purpose of committing any offence
shall be deemed to be a
thing connected with the offence”.
Section 39 falls under Part II (A) of the Act which
deals with “Arrest, Escape and Recapture and
Search Warrants and Seizure”.
Part II as a whole provides for “Procedure Relating to Criminal
Investigations”, a function falling squarely within the province of the
Police and not trial courts. Only Parts
VI – VIII of the Act provide provisions for the conduct of trials in the
subordinate courts and the High Court, which include provisions on the taking
and recording of evidence.
A plain
and/or purposive reading of section 39 leaves no doubt that it was meant to aid
investigators of criminal cases. It
empowers them to seize anything mentioned in clauses (a), (b) and (c) in the
course of their investigations. It does
not compel the prosecution to tender any such thing in evidence in the event a
prosecution is instituted. After all if
the prosecution fails to tender material evidence in its possession, that will
be to its detriment and an advantage to the defence. At any rate a torch was not one of the items
robbed at PW7’s house. We accordingly
find no merit in this ground of appeal and it is dismissed.
The
appellants are also complaining that the courts below erred in law and fact in
failing to note the “enormous
contradictions and false testimony from the prosecution witnesses”. Our understanding of the word “enormous”
as used here is that the contradictions were overwhelming and fundamental. As such it was wrong to found a conviction on
such evidence.
We have
carefully analysed the evidence of the prosecution witnesses, leaving that of
PW2 aside. We have failed to locate the
evidence of any witness which was flawed by such fundamental contradictions. Having discarded the evidence of PW2 as urged
to do by the appellants, we have found the evidence of both PW1 and PW3 to be
totally undiscredited. Benard
specifically stated that these contradictions are found on pages 25 (lines
10-12), 29 (lines 15 and 19) and 31 (lines 14 and 23) of the record of
appeal. We have read these pages
thoroughly. We did not come across any
piece of evidence which would suggest that the witnesses patently contradicted
themselves or each other. The
inconsistency traced is in the evidence of PW7 who at first said that only “two soldiers” and himself entered
Benard’s house but while being re-examined he said that “Two soldiers, Chairman, me and other people entered into Benard’s
house”. To us, this was a minor
inconsistency on a matter of detail. It
did not go to the root of the matter, that is, the robbery and the recovery of
part of the robbed properties from the house of the 1st
appellant. The appellant admitted this
fact although he attempted to explain how they got into his house.
Appellant
Charles invited us not to believe the evidence of PW1. She lied that she was hospitalized and she
did not back up this claim with a PF3, he contended. It is true that the PF3 of PW1 was not
tendered as evidence. But this omission
alone cannot be the criterion for rejecting her evidence. In spite of this omission the two courts
below found her to be a credible witness on all the relevant issues in the
case. She was believed on her assertions
that they were attacked and robbed by armed bandits. She was also believed on her unequivocal
assertion that she had identified Charles and Amedeus Assenga among the
robbers. PW1 was very categorical in her
evidence that she unmistakably recognized Charles because he was known to her
prior to the robbery incident. That PW1
and Charles were known to each other was never disputed at all by Charles. The conditions conducive for an unmistaken
identification were not disputed. All
the same, the fact that PW1 was admitted at the K.C.M.C. hospital was fully
confirmed by PW7 and PW4, the police officer who personally took her to the
said hospital. We accordingly reject the
call for disbelieving the evidence of PW1 on this ground.
We are now
left with the first common ground of appeal.
This is that there was no sufficient evidence to prove the charge. The trial District Court and the first
appellate court were satisfied after believing PW1, PW3, PW4, PW6 and PW7 as
truthful witnesses, that their evidence not only proved beyond reasonable doubt
the preferred offence of armed robbery but further that the two appellants
participated in the robbery.
Issues of
credibility of witnesses are issues of fact.
As already indicated in this judgement, the fact that an armed robbery
was committed at the home of PW1 and PW7 was never contested. The issue was on the identity of the
robbers. The two courts below found it
as an established fact on the basis of the credible evidence of PW1, PW3, PW4,
PW6 and PW7 that the two appellants were among the robbers.
It is now
trite law that where there are concurrent findings of facts by two courts below
this Court should not disturb such findings unless it is clearly shown that
there has been a misapprehension of the evidence, a miscarriage of justice or a
violation of some principle of law or practice.
Nothing of the sort has been shown in this appeal. On the contrary, on our re-appraisal of the
whole evidence on record we are of the settled mind that the two courts below
came to the correct decisions. Their
concurrent finding that the two appellants were principal participants in the
robbery was right and cannot be disturbed.
The 2nd
appellant Charles as correctly found by the courts below was arrested near the
scene of the crime and a robbed bicycle was recovered in the vicinity. He then led the police to Benard’s house where
some of the robbed properties of PW7 were recovered. In his attempt to explain his possession of
the said properties Benard said that they had been taken there by one Amedeus. The mention of Amedeus was not a figment of
his imagination. It was an attempt to
shift the criminal liability wholly to Amedeus Assenga, his accomplice, whom
PW1 had unmistakably recognized at the scene of the crime together with Benard
during the commission of the robbery. The
doctrine of recent possession was, therefore, properly invoked in the
circumstances by the two courts below.
Taken together with the visual identification evidence of PW1 and PW3
who participated in the arrest of the 2nd appellant it cannot be seriously
argued that the appellants’ guilt was not proved beyond a reasonable doubt.
For the
foregoing reasons we find that the appellants were rightly convicted. As the appeal lacks merits it is hereby
dismissed in its entirety.
DATED at
ARUSHA this 23rd day of October, 2007.
J. A. MROSO
JUSTICE
OF APPEAL
S. N. KAJI
JUSTICE
OF APPEAL
E.M.K. RUTAKANGWA
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
I. P. Kitusi
DEPUTY
REGISTRAR
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