Hamimu Hamisi Totoro zungu Pablo & another v. Republic, Cr app no 170 of 2004 (armed robbery)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM: MUNUO, J.A., MSOFFE, J.A. AND KILEO, J.A.)

CRIMINAL APPEAL NO. 170 OF 2004

HAMIMU HAMISI TOTORO ZUNGU PABLO AND

TWO OTHERS………………….…………….………………..APPELLANTS

AND

THE REPUBLIC…………………………….…………………RESPONDENT

(Appeal from the decision of the High Court of Tanzania at Mtwara)

(Lukelelwa, J.)

Dated the 3^rd day of June, 2003

In

Criminal Appeal No. 7 of 2003

-----------------------------

JUDGMENT OF THE COURT

21 February, & 7 May, 2007:

KILEO, J.A.:

The appellants, Hamimu Hamisi s/o Totoro@ Zungu Pablo, Hashim s/o Selemani Polo@ Maduka and Mohamed s/o Abdallah Swalehe @ Ban-wela were convicted of armed robbery and sentenced to thirty years imprisonment by the District Court of Newala. Their appeal to the High Court was unsuccessful, hence this appeal.

Briefly stated, the case for the prosecution at the trial court, which consisted of two witnesses, shows that on the night of 11/1/2002, round about 8 p.m. the complainant (PW1) was invaded by a band of six robbers, three of whom he managed to identify as the three appellants. When they arrived they knocked at the complainant’s door pretending to seek for directions to Mkundi. No sooner had he opened the door than he was put under their custody. The bandits possessed a pistol and a panga. He was ordered to show where the money was kept at the barrel of the pistol. The three appellants kept PWI in their watch while their companions entered the house and made away with cash and various items all valued at shillings 334,000/=.

PWI said that he was able to identify the three appellants out of the six bandits with the help of moonlight. He also stated that they were familiar to him before and they were at a close range during the whole incident.

PW2, D/Cpl Juma recorded the cautioned statements of the appellants, which were received in evidence.

The appellants denied any involvement in the commission of the crime. They also refuted the cautioned statements.

The appellants were convicted on the basis of the evidence of PWI and their cautioned statements.

The appellate judge found the cautioned statements, though repudiated, to have been voluntarily made. Having found that the conditions of identification were not favorable, he considered that the statements corroborated the evidence of identification of the appellants at the scene of crime.

The three appellants filed separate memorandum of appeal but they are all similar. Basically, there are three grounds of appeal:

Ø That the appellants were not sufficiently identified as being the culprits;

Ø That the cautioned statements were wrongly admitted in evidence; and

Ø That the appellants were not found, either with the stolen items or, the weapons that were used in the commission of the crime; and further that the sketch map of the scene of crime was not tendered in evidence.

The appellants did not wish to appear at the hearing of their appeal. Ms. Neema Mwanda who did not support conviction represented the respondent Republic. She submitted that the cautioned statements had no evidential value because they were improperly admitted. As for identification of the appellants, she stated that conditions were not good for proper identification.

We will begin addressing ourselves to the issue of cautioned statements. The question to ask is; were the statements properly admitted? This question will be answered by the resolution of another question: - were the cautioned statements voluntarily made? Section 27 of the Evidence Act, 1967 provides that it is only a voluntary statement that may be proved against its maker. The provision states 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”

In the instant case, there is nothing in the record, which shows that the cautioned statements recorded by PW2 were voluntarily given. The cautioned statements were first introduced in the proceedings of the case on 27/3/2002, which is the day that the Preliminary Hearing was conducted. We have studied the proceedings of this day and we are satisfied that they were not conducted properly. In terms of section 192 of the Criminal Procedure Act, (CPA) both the accused and the prosecutor have to agree to the memorandum of undisputed facts before such facts are recorded as being undisputed. Section 192 of the CPA provides as follows:

“192. Preliminary hearing to determine matters not in   dispute.

(1)        Notwithstanding the provisions of section 229, if an accused pleads not guilty the court shall as soon as is convenient, hold a preliminary hearing in open court in the presence of the accused or his advocate (if he is represented by an advocate) and the public prosecutor to consider such matters as are not in dispute between the parties and which will promote a fair and expeditious trial.

(2)        In ascertaining such matters that are not in dispute the court shall explain to the accused who is not represented by an advocate about the nature and purpose of the preliminary hearing and may put questions to the parties as it thinks fit; and the answers to the questions may be given without oath or affirmation.

(3)        At the conclusion of a preliminary hearing held under this section, the court shall prepare a memorandum of the matters agreed and the memorandum shall be read over and explained to the accused in a language that he understands, signed by the accused and his advocate (if any) and by the public prosecutor, and then filed.

Looking at the way the Preliminary Hearing was conducted; one gets the impression that the facts, which were recorded as undisputed, were merely the facts as read by the public prosecutor. It is nowhere indicated that the magistrate explained to the accused persons before him about the nature of a preliminary hearing in terms of section 192 (2) of the CPA. The trial magistrate only indicated that he complied with section 192 (3) of the CPA. He did not indicate whether he complied with sub-section (2) of section 192 as well. The relevant portion of the proceedings of 27/3/2002 read as follows:

                                      “PRELIMINARY HEARING

         Matters not undispute are as follows: -

(1)        Ismail Mussa Mtiwanga lives at Mkundi village.  The 1^st accused lives at Mkundi village 2^nd lives at Mchichira and 3^rd lives at Lubangala village.

(2)        Ismail Mussa and all accused persons are peasants.

(3)        The incident occurred on 11/1/2002.  On that date all accused persons were at Lipwale Mkundi village.  The 2^nd accused & 3^rd accused person were arrested on 29/1/2002 and sent to police post Mahuta.  The 1^st accused was arrested 30/1/2002 and sent to Police post Mahuta.  The three accused person were brought before this court on 4/2/2002.

Exhibit: - Caution statements of the three accused persons.

We intend to prove this case by calling two witnesses namely

(1)        Ismail Mussa Mtiwanga of Mkundi village.

(2)        C.2020 D/Cpl Juma of Mahuta.

1^st Accused: -  I have no witneses to call

2^nd Accused: - I have no witneses to call

3^rd Accused: - I have no witneses to call.

Signature of accused person

1^st Accused Sgd.

2^nd Accused Sgd.

3^rd Accused Sgd.

Signature of the PP Sgd.

S. 192 (3) of CPA C/W

ROFC

SGD. R. M. KIBELA SDM

27/3/2002”

We are of the view that when the above proceedings are tested against the provisions of section 192 of the CPA they do not pass the test.

When it came to the production of the statements at the trial the magistrate did not satisfy himself as to the admissibility of the statements before he admitted them in evidence. The appellate judge appreciated the fact that the appellants were not represented at the trial. He considered that in the circumstances they might not have effectively objected to the production of the statements. All the same the learned judge went ahead and found the statements to have been voluntarily made on account of the fact that the statements were so detailed that they could not have been concocted by PW2 or supplied by any other persons other than the appellants themselves. The judge further found that the failure by the trial court to take an active role in determining the voluntariness of the statements did not vitiate the prosecution case. He found the repudiated statements to provide corroboration to the evidence of identification of the appellants, which he found to have been made under unfavorable conditions.

It is well settled, that in order for a confession to be found voluntary on the basis of having contained detailed information, such detailed information must be in relation to the crime itself. (See for example the case of Janta Joseph Komba and Others v. Republic-Cr. Appeal No.95 of 2006[unreported]).

In the instant case the details that are contained in the statements are details relating to other crimes that the appellants appear to have been involved in. The detailed information is not in relation to the crime in issue. There is also an anomaly, which appears to have skipped both the trial court and the appellate judge. Looking at the statement of Mohamed Abdallah Swalehe Kikalala @ Ban-Wela it would appear that the other two appellants also signed it. The appearance of the signatures of the other appellants in the statement that was supposed to be of Mohamed Abdallah Swalehe was not explained. Both the trial court and the appellate judge should have found, on the basis of this anomaly, that there was something wrong with the cautioned statements and should have refrained from acting on them in arriving at a conviction of the appellants.

In the light of the above considerations we find there was no proof that the cautioned statements of the appellants were voluntarily given. For this reason, they were improperly admitted in evidence.

The appellants also complained that they were improperly convicted because they were not found with any of the stolen items or weapons used and neither was the sketch map of the scene of crime tendered in court. We find this ground to have no merit at all. Where there is sufficient evidence, the fact that the culprits were neither found with the stolen property nor with the weapons used in the commission of crime is immaterial. And also, a sketch map of the scene of crime was not necessary in the circumstances of this case.

Now, coming to the question of identification, the appellants submitted that they were not sufficiently identified, first due to poor visibility and secondly, on account of the fact that there was no supporting evidence to show that the complainant knew them before. Ms. Mwanda agreed with the appellants that the conditions for identification were not favorable. She pointed out that the crime was committed at night and that the thugs wore long coats and big hats.

It is true that the offence was committed at night and it is also true that the only source of light was moonlight. Admittedly, moonlight is a weak source of light and is not as strong a light as sunshine or powerful electric light. However under certain circumstances, such as proximity and familiarity to the assailant, moonlight can enable the victim to sufficiently recognize his or her assailant. In the instant case there was evidence from PWI that the three appellants were well known to him. He knew them by their appearance as well as their names. PWI explained to the court that he was able to recognize any person 5 paces from where he was. He testified further that Mohamed Abdallah was the one holding the pistol while Hamimu Totoro held the panga. He also stated, in cross-examination by the first appellant that he failed to identify the appellants’ companions because they were not familiar to him. Though the trial court was not told exactly how much time the whole incident took for accomplishment, however there is evidence that the complainant was kept under “custody” of the three appellants for sometime while their companions ransacked his house. The evidence of PWI was unshaken. He was found to be a truthful witness by the trial magistrate. We are satisfied that the conditions under which he identified the appellants were sufficient for a proper identification and we rule out the possibility of a mistaken identity. We find that the appellants were properly convicted and the sentence of thirty years imposed was the minimum under the law for the offence of armed robbery under section 285 and 286 of the Penal Code. The appellants were not only armed with dangerous and offensive weapons, but they were also in a gang.

In the result we find no merit in the appeal filed by Hamimu Hamisi Totoro @ Zungu, Hashimu Selemani Polo @ Maduka and Mohamed Abdallah Swalehe @ Ban-wela.  The appeal is accordingly dismissed.

DATED at DAR ES SALAAM this 17^th Day of April, 2007.

E. N. MUNUO

JUSTICE OF APPEAL

J. H. MSOFFE

JUSTICE OF APPEAL

E.A. KILEO

JUSTICE OF APPEAL

  I certify that this is a true copy of the original.

S. M. RUMANYIKA

DEPUTY REGISTRAR