IN THE COURT OF APPEAL OF
AT
MWANZA
(CORAM: LUBUVA, J.A., MROSO, J.A., And
RUTAKANGWA, J.A.)
CRIMINAL
APPEAL NO. 169 OF 2004
1. JOHN MADUHU @ HAMISI
2.
LEONARD
JOHN MAGESA ...…………...… APPELLANTS
VERSUS
THE REPUBLIC ……….……..……………….…. RESPONDENT
(Appeal
from the Judgment of the High
Court
of Tanzania at Mwanza)
(Masanche,
J.)
dated
the 30th day of April, 2003
in
Criminal
Appeal Nos. 74 & 75 of 2002
-------------
JUDGMENT
OF THE COURT
26 February & 12
June 2007
MROSO, J.A.:
The two
appellants were prosecuted, convicted and sentenced in respect of one count of
being found in unauthorized possession of arms, one count of unauthorized
possession of ammunition and also on one count of attempted armed robbery. They were sentenced on each count to 15 years
imprisonment, the sentences to run concurrently. They appealed to the High Court but their
appeals were dismissed and the sentence for attempted armed robbery was
enhanced to thirty years imprisonment.
They did not give up and have appealed to this Court.
At the
hearing of the appeal, like in the courts below, the appellants were
unrepresented. The respondent Republic
was represented by Mr. Feleshi, learned Senior State Attorney, who supported
the decision of the two courts below.
Each of the
appellants filed separate memoranda of appeal and at the commencement of the
hearing of the appeal both requested and were granted leave to file additional
written grounds of appeal.
The case
which led to their being found guilty and convicted was briefly as
follows. At about 11.00 a.m. on 7th
April, 1997 one Thomas Obel, PW1, who was a driver employed by the Coca Cola
Company drove a Toyota Land Cruiser motor vehicle from Magodoro, Nyakato
towards the town centre. He was taking
money to the bank and with him in the car was Jane Elieza, (PW2) – a cashier,
and a guard, one Mahamoud who died before the trial started. Along the road to the town centre, at an area
known as Mchafukogo, three people attempted to stop them but PW1 drove on. It was then one of the three people on the road
started to shoot at the Land Cruiser, damaging its windscreen, a window and the
car brakes. A taxi which was also being
driven on the road at the time by one Sixmund (PW7) was similarly shot at and
damaged.
PW1 managed
to reach town centre and drove straight to the police station. He obtained police escort and the money was
safely delivered to the bank. In the
meantime, the three bandits disappeared from the scene riding a red motor
cycle.
A group of
policemen who included D/SSGT Hamisi (PW3) and D/CPL Mahange (PW4), led by the
then OCD for Mwanza District, S.S.P. Edward Maro (PW6), mounted a hunt for the
culprits on the same day. After being
tipped off that the bandits escaped on a red Honda motorcycle, they followed
the motorcycle tyre marks which led to near the house of the third accused at
the trial, Constantino John @ Magesa.
When the police saw Constantino and called him, he ran to his mother’s
house. The police entered the house and,
on searching it, discovered him in the ceiling.
The motorcycle itself with registration number TZD 4540 was traced in a
neighbouring house. In the same house
D/SSGT Hamisi climbed into the ceiling because it appeared that some people
were hiding in there. He discovered an
empty magazine but on further search a sub-machine gun (SMG) and twenty bullets
were recovered. Apart from the gun and
the bullets, D/SSGT Hamisi found the appellants hiding in the ceiling and he
dragged them out. At a subsequent
identification parade which was mounted by ASP Matei (PW9) (wrongly shown in
the record as PW8) both appellants were identified by PW1, PW2 and PW7 –
Sixmund Constantine. PW8 – Said Seleman,
an old man of 82 years, also identified the appellants. The witness said he was near the scene of the
attempted robbery and witnessed the shooting.
At the
trial the first appellant said he was a resident of Magu. He had come to Mwanza to sell maize and as he
was on his way back to Magu he was arrested and eventually found himself in
court and was prosecuted for allegedly “kidnapping a car”.
The second
appellant, who was the first accused at the trial, gave a defence of
alibi. He said on the day he was
supposed to have committed the offences charged against him he had returned
from Dar es Salaam
The first
appellant originally filed five grounds and at the time of hearing the appeal
added four grounds, making a total of nine grounds of appeal. The second appellant on his part originally
filed nine grounds of appeal and added four grounds at the hearing, making a
total of thirteen grounds. In essence the
grounds by both appellants are similar although in some cases they are specific
to one or the other appellant.
Both
appellants complain that the evidence of identification was not watertight and
that the witnesses of identification had not given a prior description of the
appellants before they were arrested as suspects. Secondly,
both appellants challenge the propriety of the manner the identification parade
was conducted and that there should not have been reliance on it by the first
appellate court. Thirdly, that there were contradictions in the evidence of the
prosecution witnesses. Fourthly, that sections 231, 234 and
293 of the Criminal Procedure Act, 1985 had not been complied with and the
first appellate court should have noticed the omission and find that there was
a miscarriage of justice. Fifthly, that there was confusion in
the numbering of the prosecution witnesses.
Sixthly, that there had been
two different charges in two courts of the same grade and that the appellants
were convicted and sentenced by the two courts, in one case by the Court of
Resident Magistrate at Mwanza before Sasabo, RM and in the other case by the
same court but before Kimicha, DM. The seventh ground of appeal relates to the
second appellant only who complained that the first appellate court did not pay
sufficient attention to his defence of alibi but merely made a fleeting
reference to it.
The eighth ground of appeal, also relating
to the second appellant only was that a caution statement imputed to him was
improperly admitted as evidence against him.
We wish to
dispose of the summarized grounds four, five and six quite briefly. Regarding ground number four we have to point
out at once that section 293 of the Criminal Procedure Act, 1985 relates to trials
before the High Court and is not, therefore, relevant to trials before
subordinate courts. Sections 231 and 234
of the Criminal Procedure Act, 1985 however relate to trials in subordinate
courts. As regards section 231 it is
observed that the trial court record does not show that the trial magistrate
informed the appellants of their rights under the section. Even so, it is apparent that the appellants
were made aware that they could give evidence in their own defence and that
such defence could be on oath. This is
inferred from the fact that both appellants gave evidence on oath. It is also apparent that the appellants were
made to know that they could call witnesses to testify for them. Again, this is reflected from the record
where the second appellant is recorded as informing the trial court that he
intended to call three witnesses and mentioned their names. The first appellant is recorded as saying he
had no witnesses to call. It is our
view, therefore, that although the trial magistrate omitted to show on the
record that he had complied with the requirements of section 231 of the
Criminal Procedure Act, 1985, it is quite clear that the appellants were made
aware of their right to give evidence and to call witnesses. The omission therefore did not result in a
miscarriage of justice.
Section 234
of the Criminal Procedure Act, 1985 contains provisions on what should be done
when there is a variance between the charge and the evidence adduced. In such a case the court would order for
alteration of the charge. In this case
we do not see the justification for the complaint that the trial court did not
comply with the provisions of that section.
The fifth
summarized ground of appeal was that there was confusion in the numbering of
the prosecution witnesses. It is true
that since S.S.P. Maro was PW6, witness Sixmund Constantino who followed
immediately after S.S.P. Maro should not have been shown as PW6/7 but should
properly have been shown as PW7 and prosecution witness Saidi Seleman should
have been shown as PW8, not PW7. Again,
we think that the confusion may have caused some inconvenience but not
injustice to anyone.
The
summarized ground six also need not detain us.
In the appeal before us it is shown that the appellants together with
two others were charged with four counts.
The first and second counts of being found in unauthorized possession of
arms and being found in unauthorized possession of ammunition respectively were
charged under paragraph 21 of the First Schedule to the Economic and Organized
Crime Control Act No. 13 of 1984, read together with sections 56 (1) and 59 (2)
of that Act, as amended by Act No. 10 of 1989.
The third and fourth counts were each on attempted armed robbery
contrary to section 287 of the Penal Code.
Both appellants were convicted on the first, second and third counts and
acquitted on the fourth count. We are
unable to see any justification for this complaint and we lay it to rest.
It is now
appropriate to discuss the remaining grounds of appeal, beginning with the
summarized first ground.
As
correctly argued by Mr. Feleshi, learned Senior State Attorney, the attempted
robbery and the finding of the firearm and ammunition all occurred during day
light so that clear vision was possible.
The first appellate court concurred with the trial court in its finding
that PW1, PW3 and PW7 were able to see and identify the people who tried to
stop PW1 as he drove towards the town centre.
When he became suspicious and decided to drive on, the shooting started.
The
appellants say that those witnesses, that is to say, PW1, PW2 and PW7 did not
give a detailed description of those bandits to the police and cited the case
of Joseph Shagembe v. Republic, [1982]
TLR 147 as authority for such a requirement.
We agree
with the appellants that, indeed, none of the police witnesses said in their
evidence that PW1, PW2 or PW7 gave a detailed description of the bandits. The first appellate court did not advert to
this aspect of the evidence. The
question now is whether the absence of such evidence in this case fatally
weakened the prosecution case.
In the Joseph Shagembe case cited by the
appellants the High Court, late Lugakingira, J, quoted the following words from
a decision of the erstwhile Court of Appeal for Eastern Africa, Mohamed Alhui v. Rex [1942] 9 EACA 72
which the appellants also cited:-
“… in every case in which there is a question as
to the identity of the accused, the fact of there having been a description
given and the terms of that description are matters of the highest importance
of which evidence ought always to be
given; first of course, by the person or persons who gave the description and
purport to identify the accused, and then by the person or persons to whom the
description was given”.
The High Court in the Joseph Shagembe case was satisfied that the single witness (a
woman) of identification of the suspect who had assaulted her during daylight
gave satisfactory evidence in keeping with the Mohamed Alhui case.
In another
case Roria v. R. [1967] E.A. 583
which was referred to in the Joseph
Shagembe case, the Court of Appeal declined to uphold a conviction for
murder because the witness of identification testified about a raid that had
taken place before dawn; the people in the raid were many and were using
frightening weapons. In those conditions
there could not be assurance that there was unmistaken identification.
In the case
now under appeal it is apparent that the police did not arrest the appellants
because of a description which might have been given to them about the physical
appearance of suspects. The description
related to the kind of motorcycle which the suspects used to escape from the
scene and the direction it went. The
police, therefore, followed tyre marks which l ed to a place near where a red
Honda motorcycle was found. Its engine
was warm when touched. It was assumed
that that was the motorcycle which the bandits used to make their escape.
In his
evidence PW1 did not attempt any description of any of the bandits as he saw
them at the scene. All he said about the
appellants is that he identified them at an identification parade. PW2 similarly gave no description evidence
about the appellants apart from saying he identified them at an identification
parade. The only witness who attempted a
description of the culprits at the scene was PW7 – Sixmund Constantine. He said that the first appellant (second
accused at the trial) was wearing “full jeans” and the second appellant (first
accused at the trial) doned black trousers and a blue T-shirt. That description of clothes put on by the
second appellant conflicted with the description which was given by PW6 –
S.S.P. Maro – who said that that appellant was wearing jeans at the time he was
arrested. Did this appellant change
clothes before he was arrested or was it a different person who PW7 saw at the
scene?
PW8 – Saidi
Seleman claimed to have witnessed the shooting and further claimed to have seen
both appellants at the scene. More
importantly, he said he knew the two appellants from childhood. But this witness so completely contradicted
himself that, in our view, he lost all credibility. When he was cross-examined by the appellants
he said of the first appellant –
“Before
the incident I never knew you”
and, regarding the second appellant he said –
“I
don’t know your name or your father or mother”.
But this is the witness who during examination in chief
said –
“I
knew the first and second accused from the childhood”
and
when examined by the court said –
“while the first and third (accused) were
shooting (suggesting both were shooting) their father John Magesa was
present. I had worked with their
father …
I did once arrest their father”.
The
evidence on the identification parade was supposed to strengthen the claim that
it was the appellants who were seen at the road committing the attempted
robbery. The appellants argued that the identification
parade was so fraught with irregularities that it was worthless. According to them, they had been in police
custody for three days before the identification parade was staged and during
those three days they were being taken out frequently and they believed
opportunity was being given to the identifying witnesses to see them so as to
make it easy for such witnesses to identify them when paraded. The appellants further said that despite the
effort to facilitate identification, the witnesses conflicted with each
other. For example, while PW7 – Sixmund
– said he identified the appellants at the parade, PW9 – ASP Matei who staged
the identification parade showed in the register that the first appellant was
not identified by PW7. They also
complain that they were not informed by the officer who ataged the
identification parade that they could change clothes before a fresh identifying
witness came to identify them.
The
complaint that they might have been seen by identifying witnesses before the
parade was mounted seems to be an afterthought or speculation. When PW9 – ASP Matei – the officer who was
in-charge of the Identification Parade gave evidence no such complaint was put
to him. It must be observed however, that from the
evidence of PW9 there is no indication that all the precautions on
identification parades contained either in the Mwango s/o Manaa case cited by the second appellant or the Police
General Orders, No. 231 on
Identification Parades were scrupulously followed. Even so, there is no requirement that a
suspect at an identification parade should be allowed to change clothes. The Police General Orders 2 (j) provide that
it is permissible for a suspect to be put up for identification in the clothing
he was wearing when the offence was committed or when he was arrested as long
as such clothing does not show stains, marks or tears which patently
distinguish his clothing from that of other persons in the parade. We are satisfied that on the whole the main
requirements at an identification parade were complied with and, in fact, the
appellants signed a certificate to the effect that the identification parade
was conducted properly.
In view of
the conflicting evidence regarding whether or not PW7 – Sixmund identified the
appellants at the Identification Parade, his evidence of identification must be
ignored, and the first appellate court should have so found. However, we cannot fault the concurrent
finding of the trial court and the first appellate court that PW1 and PW2
correctly identified the appellants at the parade as the people who attempted
to rob them on the road from Nyakato to the city centre.
We also
agree with the courts below that the two appellants were hauled out of a
ceiling of a house at Mahina in Nyakato area.
In the same ceiling a firearm, an empty magazine and another magazine
containing 20 rounds of ammunition were found.
Three police officers, including the O.C.D., S.S.P. Maro and a civilian who
was also a ten cell leader, Kaloli Batendi (PW5) witnessed it all. The discrepancy relating to the clothes which
the first appellant was wearing when arrested and when he was seen at the
Identification Parade does not affect the finding that this appellant together
with the second appellant were found in possession of the firearm and
ammunition. Once that evidence is
believed there can be no room for the supposed alibi of the second
appellant. It was rightly rejected. The first appellate court cannot be faulted
for upholding the convictions.
The
complaint in ground eight is baseless because neither the trial court nor the
first appellate court used the second appellant’s caution statement as evidence
to convict him.
Finally,
the appellants criticize the first appellate court for enhancing the sentence
on the conviction for attempted robbery.
The High
Court, Masanche, J., in enhancing the sentence for attempted robbery from 15
years imprisonment to one of thirty years said:-
“With
regard to sentence, I agree that for the first two counts, sentences of 15
years imprisonment were lawful. However,
on the attempted armed robbery count (the third count), the sentence of fifteen
years imprisonment was unlawful. In
criminal law, attempts are just as good (sic) as complete offences. And, as the lawful sentence for the offence
of armed robbery is 30 years imprisonment, it is encumbent (sic) for the trial
court to sentence the appellants to terms of thirty years imprisonment”.
With due respect, the judge erred. Section 287 B of the Penal Code (per Act No.
4 of 2004) provides that the minimum sentence for attempted robbery is 15 years
imprisonment with or without corporal punishment. It was therefore lawful for the trial court
to sentence the appellants to a term of 15 years imprisonment. It was also within the discretion of the
trial court not to impose corporal punishment.
For all the
above reasons, the appeal against the conviction is dismissed but the appeal against
the sentence of thirty years imprisonment and corporal punishment on the third
count is allowed. The sentence of 15
years imprisonment which was imposed by the trial court is hereby restored.
DATED at DAR ES SALAAM this
17th day of April, 2007.
D.Z. LUBUVA
JUSTICE
OF APPEAL
J.A. MROSO
JUSTICE
OF APPEAL
E.M.K. RUTAKANGWA
JUSTICE OF APPEAL
I certify that this is a true copy of
the original.
( S.M. RUMANYIKA )
DEPUTY
REGISTRAR
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