IN THE COURT OF APPEAL OF TANZANIA
AT MWANZA
(CORAM: LUBUVA, J.A., MROSO, J.A., And RUTAKANGWA, J.A.)
CRIMINAL APPEAL NO. 62 OF 2005
1. MATHAYO IGOKELO @ KIPALA
2. MATHIAS CHARLES @ IGOKELO……..….… APPELLANTS
VERSUS
THE REPUBLIC ……….……..……………….…. RESPONDENT
(Appeal from the Judgment of the High
Court of Tanzania at Mwanza)
(Mihayo, J.)
dated the 14th day of May, 2004
in
HC Criminal Appeal No. 18 of 2004
------------JUDGMENT OF THE COURT
7 March 2007
MROSO, J.A.:
The two appellants were found guilty of robbery with violence
by the District Court of Geita District and were sentenced to a prison
term of 30 years. Their appeal to the High Court (Mihayo, J.) was
dismissed. Not giving up, they have appealed to this Court. At the
hearing of their appeals the appellants fended for themselves. The
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first accused at the trial is the second appellant in this appeal and the
second accused becomes the first appellant.
The respondent
Republic was represented by Mr. Feleshi, learned Senior State
Attorney.
Both appellants filed a seven ground memorandum of appeal
each. The memoranda of appeal were clearly drafted by a lay hand
and are not easily comprehensible.
It can be gleaned from them
however that three substantive complaints are being made. First,
that the evidence of identification was too weak to found a
conviction. Second, that the prosecution witnesses gave conflicting
evidence. Third, that the trial court took into account a conviction of
the appellants in another case to bolster up the case which led to this
appeal.
Before we discuss those grounds of appeal we think it
desirable to give a brief account of the case which led to the
appellants being convicted of the offence charged against them.
During the night of 10th/11th of October, 1998 bandits broke
into the house of one Mathias Ezekiel (PW1) at 01.00 hours.
On
entering the house the bandits demanded to be given Tshs.
3
120,000/=. PW1 told them he did not have that amount but only
Tshs. 60,000/=. They struck him with a panga and beat him up. His
wife gave them the money. They took it and also stole other things
from the house like a pump and a panga and vanished into the
darkness outside. Alarm was raised and people responded and came
to the scene. A search for the culprits was mounted.
Nine days after the robbery the second appellant was arrested
by the village peoples’ militia, popularly known as sungusungu. The
first appellant was arrested twenty days later.
They were
subsequently prosecuted for the robbery, convicted and sentenced as
mentioned earlier in this judgment.
Both the trial court and the first appellate court seemed to find
that there was reliable identification of the culprits. The trial court
considered that although the offence was committed at night, there
was a lamp in the house and that PW2 had used the lit lamp to show
the bandits where the money was kept and, presumably, they were
identified in the course of being shown the place where the money
was kept.
4
The first appellate court was also satisfied that both PW1 and
PW2 identified the two appellants with the aid of what was described
as a lantern lamp. It said:“What
are
the
conditions
for
favouring
identification of the appellants here? (i) They
were not strangers in the village. (ii) There
was lantern lamp and a torch which was on
and was used to search.
PW1 said he did
identify Mathias Charles with the aid of a
lantern lamp and torches that were flashing
around during the search for the money box.”
Then –
“The trial magistrate addressed the issue of
identification and found that there
was
enough time for PW1 and PW2 to identify
their attackers … It was not a very sudden
raid”
5
Both courts below considered that the claim by PW1 and PW2
that they identified the robbers to be the appellants “found support”
in another case, Criminal Case No. 198/98, in which the appellants
were convicted “in almost like circumstances … the same persons
were identified by the complainant and his wife”.
With all due respect, PW1 did not say in his evidence that he
identified both appellants. What he said is –
“I was able to identify one of them. This was
Mathias Charles”.
The witness said he was able to identify Mathias Charles
“because they took one lantern. They flashed
torch at the sitting room I was then able to
identify him”.
Also, when cross-examined by the said Mathias Charles (second
appellant) this witness said he identified him because –
“There was light of a lamp in my house”.
6
As regards PW2, she never said in her examination in chief that
she identified any of the bandits. It was only when she was crossexamined by the first appellant (the second accused at the trial) that
she said she saw him. In her own words she said –
“I know you because you invaded us. On that
day I saw you at 01.00 hrs. You had a panga
and a torch. You lit the lamp yourself”.
When she was cross-examined by the first appellant (the second
accused at the trial) she said –
“When you got inside the house the lamp
had been put off”
which would mean that when the bandits entered the house there
was no light as the lamp inside it had been put off. She did not say
specifically that she recognized or identified him.
From the evidence of PW1 and PW2 therefore, only the second
appellant was said to have been identified by both PW1 and PW2.
The first appellant was certainly not identified by PW1, and PW2 did
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not say she identified him.
The only reason why the two courts
below found the second appellant guilty of the robbery charged in
the case was that the same trial magistrate
“found support from a conviction of the same
people,
in
almost
like
circumstances
in
another criminal case No. 198/98 where the
same
persons
were
identified
by
the
complainant and his wife”.
What the courts are saying in effect is that because the two
appellants were convicted by the same trial magistrate in another
case involving the same complainant and wife (PW1 and PW2) then
they must be convicted also in the case now under appeal.
During the trial of the appellants there was no evidence that
they had been convicted in another case in which PW1 and PW2
were also the victims. We are not even told when that other offence
was committed or the nature of the offence involved. Such evidence
if it had been given, being evidence of character, would not have
been admissible in the case now under appeal as it would offend the
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provisions of section 56 (1) of the Law of Evidence Act, 1967. The
first appellate judge called it “imported evidence”. That description
was not apt enough.
Rather it was an irrelevant and prejudicial
imputation of bad character on the appellants.
Bad character in
criminal cases is relevant in very restricted circumstances. It would
be given as evidence if an accused person has adduced evidence of
his own good character or, after conviction, for a proper assessment
of the sentence to be imposed on the accused person, or where bad
character is itself a fact in issue – See Section 56 of the Law of
Evidence Act, 1967. We think, therefore, that the two courts below
erred in referring to an alleged previous conviction of the appellants
when considering the guilt or otherwise of these appellants. We now
wish to go back to the issue of identification of the bandits.
We do not think the evidence of identification in this case met
the test in the celebrated case of Waziri Amani v. R. [1980] TLR
250.
In that case it was laid down that no court should act on
evidence of visual identification unless all possibilities of mistaken
identity have been eliminated and the court is satisfied that such
evidence is watertight.
9
In the case under appeal, PW1 claims he was able to identify
the second appellant because of lamp light in the house. But PW2
said they had put out the light from the lamp and that it was this
appellant who lit it. PW1 had also said that the bandits “flashed their
torch”. Now, if, as said by PW2, the light from lamp had been put
out and the bandits had a torch, why would the first appellant light
the lamp to facilitate his own identity when he or his colleagues had
a torch which would enable them to see things in the house and
disable PW1 and PW2 from identifying them? With respect, we think
that the claim by PW1 that he identified the first appellant by the aid
of light from a lamp in the house is highly doubtful. PW1 and PW2
would not have been able to identify reliably the intruders because of
the torch or torches which the bandits used. In the absence of clear
evidence, commonsense shows that usually the user of torchlight
would be enabled to see things in front of them and not those on
whom the torchlight is directed to see the user of the torch.
Therefore, there was no cogent evidence of identification.
10
As mentioned earlier in this judgment, the appellants were
arrested 9 days and 20 days respectively after the armed robbery
was committed.
No explanation was offered why, if the second
appellant was identified on the same night the offence was
committed, it took so long to have him arrested. This is yet another
factor which casts a shadow on the already weak evidence of
identification.
We believe that had both the trial court and the first appellate
court considered the case in the manner we did they would not have
found that the charge against the appellants had been proved. Mr.
Feleshi, learned Senior State Attorney, did not support the lower
court decisions.
We, therefore, allow the appeal by quashing the judgments of
the lower courts, set aside the sentence of imprisonment and order
that the appellants be set free forthwith unless they be held for some
other lawful cause.
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DATED at DAR ES SALAAM this 30th day of March, 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
Delivered under my hand and Court Seal in open Court/Chambers at
Mwanza this ………………… day of ……………………………………...
…………………………………………..
DEPUTY REGISTRAR