IN THE COURT OF APPEAL OF
AT
ARUSHA
CRIMINAL
APPEAL NO. 85 OF 2004
BETWEEN
SALIM
PETRO NGALAWA … APPELLANT
AND
THE
REPUBLIC … RESPONDENT
(Appeal
from the decision of the High Court of Tanzania
at
Arusha)
(Rutakangwa,
J.)
dated
the 5th day of March, 2004
in
Criminal
Appeal No. 60 of 2003
……
JUDGMENT OF THE COURT
24 & 30 October 2007
RAMADHANI, C. J.
On
23rd February, 2000, Raphael Baptist, PW 2, and Marcel Schunder, PW
3, were driving in a land cruiser with registration number ARK 403, from Arusha
to Babati. At about 22.00 hours at Ndori
Village
PW
2, who was a passenger, was able to identify the appellant who was in front of
the vehicle marching towards it while the head lights were on. The appellant then
went to the passenger’s window of the vehicle and ordered PW 2 to put on the
cabin light. After that the appellant boarded the vehicle and with the aid of
the cabin light was able to search through the goods in the rear seat of the
vehicle.
After
the search PWs 2 and 3 were thrown out from the vehicle and the bandits went
away with it. When PWs 2 and 3 had properly recovered from the ordeal they went
on foot to Babati and reported the incident to the police. On 24 February,
2000, three persons were arrested. D/Cpl Godfrey, PW 6, arrested the appellant,
in connection with another case, on 26 February, 2000, at 13.00 hours. PW 6
testified that the appellant confessed to have taken part in the robbery, the
subject matter of this case, so, on 28 February, 2000, he was taken to Inspector
Wilson, PW 5, to record a cautioned statement, Exh P 4. The appellant was also identified
by PW 2 at an identification parade staged by Inspector Rogathe Ndewina, PW 1.
The
trial learned District Magistrate, Mr. TUWA, was satisfied with the prosecution
evidence and convicted all four accused persons, including the appellant, and
sentenced each of them to a term of thirty years imprisonment. The appellant’s
appeal to the High Court was summarily dismissed by RUTAKANGWA, J., as he then
was.
In
this second appeal the appellant did not have a counsel but appeared in person
while the respondent/Republic was represented by Mr. Henry Kitambwa, learned State
Attorney.
The
appellant filed a memorandum of appeal containing three grounds:
1. His
identification by PWs 2 and 3 was not beyond all reasonable doubt.
2. The
identification parade was flawed in that PWs 2 and 3 had not given to the
Police a detailed description of the suspect.
3. His
conviction was based on a retracted confession.
At
the hearing of the appeal the appellant merely adopted the grounds in his
memorandum of appeal and was not the first to address the Court.
Mr.
Kitambwa replied that the identification of the appellant by PWs 2 and 3 was
beyond all reasonable doubt. The State Attorney relied on Waziri Amani v. R
[1980] TLR 250 which prescribes the conditions for a proper identification. In
this case, Mr. Kitambwa submitted, there was sufficient light and that PWs 2
and 3 were with their captors for about 20 minutes. The learned State Attorney
submitted that the conviction was not solely based on the confession but there
were other witnesses who identified the appellant. He pointed out that the
retraction of the confession by the appellant was an afterthought but it was
otherwise freely given.
Before
we consider the grounds of appeal we observe that there is technically no
judgment but a mere verdict. The Magistrate gave a summary of the evidence of
all the prosecution witnesses and that of the accused persons. After that the
Magistrate concluded:
The segments of
evidence adduced before this court by various witnesses on behalf of the
prosecution convince (sic) this court to believe that the accused person in the
dock were the very ones who committed the offence of armed robbery.
The defence evidence
didn’t raise any reasonable doubt as far as the quilts (sic) of the accused
persons are concerned.
The
learned first appellate judge did not discuss the evidence and make his own
evaluation as he was entitled to do since it was the first appeal and hence it was
by way of rehearing. Instead he summarily dismissed the appeal.
In D. R. Pandya
v. R [1957] EA 336 it was held:
The first appellate
court erred in law in that it had not treated the evidence as a whole to that
fresh and exhaustive scrutiny which the appellant was entitled to expect, and,
as a result of its error, affirmed a conviction resting on evidence which, had
it been duly reviewed, must have been seen to be so defective as to render the
conviction manifestly unsafe.
So,
we can, and should, step into the shoes of the High Court under the provisions
of section 4 (2) of the Appellate Jurisdiction Act and we have to do that which
the High Court ought to have done.
We
start with the identification of the appellant by PWs 2 and 3. It was their
evidence that they were able to identify the appellant because of the headlamps
of the vehicle. But we ask ourselves how the bandits could have been so foolish
as to come out in front of such a glare of the head lights of the vehicle.
According to PWs 2 and 3 those people had taken cover and only emerged after
the vehicle stopped and tried to reverse. It is highly improbable that they
would have done so.
Be
that as it may, PW 3 stated that after he was hit close to the right eye he
became unconscious. That was reiterated by PW 2 who went further to say that he
tried to move PW 3 from the driver’s seat so that he could reverse the vehicle
but did not manage it. So, PW 2 tried, again in vain, to open the door so that
he could flee from danger. We fail to see how he could have made both attempts and
at the same time concentrate on looking at the bandits to be able to identify
them.
The
appellant in reply to the submissions of the State Attorney pointed out the evidence
of Cpl Peter, PW 4, who said:
On 24/2/2000 from
8.00 a.m. upwards I was at my working station. While I was there, I saw Raphael
(PW 2) and Marcel (PW 3) who reported that their M/V and other goods were
robbed by unknown person at the area of Mdori village.
The
appellant asked how PWs 2 and 3 managed to identify him when on the day after
the incident they confessed to the Police that they did not know the people who
attacked them? We cannot pretend to know the answer. But that question raises a
doubt on the credibility of PWs 2 and 3.
Then
there is the issue of the caution statement of the appellant, Exh P 4. Was it
recorded within the provided statutory time? The appellant was arrested on 26
February, 2000, at 13.00 hours, and the statement was recorded on 28 February,
2000, that is, after more than twelve hours and that contravened section 50 of
the Criminal Procedure Act Cap 20 [2002 RE] which prescribes the basic period
available for interviewing a person who is in the custody of police.
Therefore,
that cautioned statement was inadmissible as this Court said so in Janta
Joseph Komba & 3 Ors v. R Criminal Appeal No. 95 of 2005 (CAT)
(unreported) where this Court acquitted the appellants. We followed that case in
this session in Tumaini Molleli @ John Walker & Another v. R.,
Criminal Appeal No 40 of 1994.
We
are, therefore, of the well considered view that there is no evidence against the
appellant, we quash the unanimous finding of the two lower Courts and we set
aside the order of imprisonment. The appellant is to be set free unless his
further incarceration is lawful.
DATED at ARUSHA this
30th day of October, 2007.
A. S. L.
RAMADHANI
CHIEF
JUSTICE
J. A.
MROSO
JUSTICE
OF APPEAL
S. N.
KAJI
JUSTICE
OF APPEAL
I certify that this is a true copy of the original.
(F. L. K. WAMBALI)
SENIOR DEPUTY REGISTRAR
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