IN THE COURT OF APPEAL OF TANZANIA

ATARUSHA

(CORAM: KILEO. l.A .. MlASIRI. l.A .. And KAIlAGE. l.A.)

CRIMINAL APPEAL NO. 131 OF 2014

TAIKO LENGEl APPELLANT

VERSUS

THE REPUBLIC RESPONDENT

(Appeal from the conviction and sentence of the High Court of Tanzania

at Arusha)

(K.M. Sambo. l.)

dated the 11th day of April, 2013

in

Criminal Appeal No. 72 of 2011

JUDGMENT OF THE COURT

18th & 25th February, 2015

KAIJAGE, J.A.:

In the District Court of Monduli at Monduli the appellant alonq with

three others were arraigned for three (3) counts. 1st count of conspiracy to

commit an offence (for 1st - 3rd accused), 2nd count of armed robbery (for

1st - 3rd accused) and 3rd count of receiving stolen property (for 4th

accused). Throughout the trial, the appellant herein stood as the third

accused and his co-accuseds namely; Mwisali slo Njasi @ Namisye,

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Lembris slo Sayareki and Nakai d/o Loshilo were, respectively, the 1st, 2nd

and 4thaccused persons.

Following a full trial, the 2nd and 4th accused persons were acquitted.

The appellant and the 1st accused were found guilty and convicted as

charged on the first two counts. Each was sentenced to three (3) years

imprisonment on the 1st count and thirty (30) years imprisonment plus \••
"

;
nd
twelve (12) strokes of the cane on the 2 count. The sentences were

ordered to run concurrently. It is pertinent to observe here that the 1st

accused was convicted and sentenced in absentia. The appellant's appeal

to the High Court (K.M.M. Sambo, J.) was dismissed, hence this second

appeal.
.. ;

The evidence upon which the appellant's conviction was grounded

could be stated, briefly, as follows; on 3/6/2008 at 10:30 hours or

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thereabout, PWSFabian Mgasa was driving a motor vehicle registration No. :"

T. 388 APG, make Toyota Land Cruiser in which PW6 Msafiri Juma and two

Australian tourists were passengers. Apparently, they were heading to

Oldonyolengai. Arriving at a place commonly known as Athuman hill, about

40 kilometers past Mto Wa Mbu, they were stopped by three (3) men

dressed in Masai clothing and were armed with a gun, knives and sticks.
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What exactly transpired at the scene of the undisputed robbery features

thus in PWS'stestimonial account:-

"In front of us there were three people wearing

Masai clothes. They wanted to cross the road We
saw one of them point out a gun, then he fired I
felt that it was a tyre burst. One of them came in
the middle of the road and he pointed a gun to the \
'."~
tyre, he fired a gun.... I tried to switch off the car. I
took the keys up to surrender and one of them
came to me and ordered me to lie down. One of
them entered the car, he took all luggages and
ferried them outside to his fellow. They said" Pesa
zitoke" give us money - tell those wazungu to take
out money. They took everything. They searched ..;

us and one of them fired a gun to insist more

money. "

f
In their respective evidence, both PWSand PW6 related to the trial J

court that after they were dispossessedof their cash and personal effects

most of which belonged to the said two tourists, the thugs took to their

heels and disappeared in the nearby forest. This was after they had seen

another motor vehicle approaching the scene of crime. Upon its arrival,

that car assisted in taking the victims of robbery to Mto Wa Mbu police

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station where the robbery incident was reported to PW3 No. F 2256 DC

Yasin who, together with other police officers mounted immediate police

investigations. The said two prosecution witnesses also advanced a claim,

in their respective testimonies, that they identified the appellant at the

scene of crime to be among the perpetrators of the robbery in question. In

this regard, they gave the descriptive particulars of the appellant. \

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i
However, they made no such description to PW3, a police officer to whom

they firstly reported the robbery incident. It is worth taking note, at this

stage, that the description of the appellant was made for the first time in

the course of trial.

In the course of investigations, the police authorities received a tip of

the possible perpetrators of the robbery incident. In that connection, the

1st, 2nd and the 4th accused persons were arrested. The majority of the

victims' personal effects allegedly stolen in the course of robbery were

recovered from the house then occupied by the 4th accused. The appellant

was arrested after PW4 D 7086 Cpl. Joseph had, on 21/7/2008, obtained

and recorded the 4th accused's cautioned statement (EXH P 111) in which

the appellant is implicated only to the extent of having stolen a gun from

the former, soon after the 1st and the 2nd accused persons were arrested.
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In her cautioned statement, the 4th accused further states that the stolen

gun was earlier entrusted to her by the 1st and 2nd accused persons for

safe custody.

Believing that the said stolen gun could have been used by the

bandits during the robbery incident, the appellant was questioned by the

police on it's whereabouts. Following the police interrogation, the appellant \'~

'1;

led PW3 and other police officers to Engaruka in Monduli Juu where a gun,

make SAR 86957, was recovered hidden in a certain house. In the course

of trial, that gun was tendered by PW3 and admitted in evidence as EXH.

PlY.

' . .0:

At the close of the evidence in support of the charge and upon being

addressed in terms of section 231 (1) (a) and (b) of the Criminal Procedure

Act, Cap 20 R.E. 2002 (the CPA), the appellant is on record to have opted

to exercise the following option:-

"I will defend myself under oath. "

Curiously, in the trial court's judgment at page 52 of the record,

the learned trial magistrate observed that the 1st accused and the appellant

"opted not to defend themselves." The appellant was thus convicted

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In her cautioned statement, the 4th accused further states that the stolen

gun was earlier entrusted to her by the 1st and 2nd accused persons for

safe custody.

Believing that the said stolen gun could have been used by the

bandits during the robbery incident, the appellant was questioned by the

police on it's whereabouts. Following the police interrogation, the appellant

led PW3 and other police officers to Engaruka in Monduli Juu where a gun,

make SAR 86957, was recovered hidden in a certain house. In the course

of trial, that gun was tendered by PW3 and admitted in evidence as EXH.

PIV.

At the close of the evidence in support of the charge and upon being

addressed in terms of section 231 (1) (a) and (b) of the Criminal Procedure

Act, Cap 20 R.E. 2002 (the CPA), the appellant is on record to have opted

to exercise the following option:-

'1 will defend myself under oath. "

Curiously, in the trial court's judgment at page 52 of the record,

the learned trial magistrate observed that the 1st accused and the appellant

"opted not to defend themselves." The appellant was thus convicted

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without being heard in defence. This unsatisfactory feature was belatedly

discovered. It was never raised as a ground of appeal and the parties

herein did not address it. We propose to leave it at that. Be that as it may,

the appellant's conviction was predicated upon visual identification

evidence adduced by PWSand PW6 and the invocation, by the trial court,

of the doctrine of recent possession.

After its re-evaluation and consideration of the evidence on record,

the first appellate court sustained the appellant's conviction on the strength

of visual identification evidence and the doctrine of recent possession.

The appellant lodged a four points memorandum of appeal premised

..
.;

on the following grievances:-

1. That the first appellate court erred in law and in

fact when it held that the appellant was properly f
t

identified at the scene of crime.

2. That, the doctrine of recent possession was

wrongly invoked by the first appellate court.

3. That, the case for the prosecution was not

proved beyond reasonable doubt.

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 Before us, the appellant appeared in person, unrepresented. He had

nothing to say in elaboration of his grounds of appeal. He only reserved his

right to respond to the learned State Attorney's submission. The

respondent Republic had the services of Mr. Marcelino Mwamunyange,

learned State Attorney, who did not support the appellant's conviction.

Addressing the first ground of appeal, the learned State Attorney

submitted that the purported visual identification evidence of PWS Fabian

Mgasa and PW6 Msafiri Juma was wanting in cogency and ought not to

have been relied on to ground a conviction for armed robbery. He took this

stance because the evidence on record is clear that the appellant and his

co-accused persons were strangers to the said identifying witnesses who

never gave the descriptive particulars of the appellant or his co-accusedsto

the police or to any other person soon after the occurrence of the robbery

incident. Again, he faulted the dock identification of the appellant by the

same prosecution witnesses which was not preceded by an identification

parade. To support his contention, he cited to us our recent decision on the

issue in NOEL GURTH aka BAITH and ANOTHER vs R; Criminal Appeal

No. 33 of 2013 (unreported). He accordingly invited us to find that the

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visual identification evidence of the said prosecution witnesses was not

watertight.

On the second and third grounds of appeal, the learned State

Attorney emphatically submitted that there is no scintilla of evidence on

record suggesting that the appellant was ever found in possession of any

item stolen from the victims of the armed robbery. If anything, the

appellant is said to have led the police officers to a place when the SAR

gun (EXH.PIV) was retrieved, he said. He maintained, however, that the

prosecution led no evidence linking that gun with the robbery incident. He

finally urged us to find that the case for the prosecution was not proved

beyond reasonable doubt as against the appellant.

..•.

As we proceed to dispose of this appeal, we propose to be guided by

the principle stated thus in EDWIN MHANDO v. R., [1993] TLR, 170:-
r
.t
"On a second appeal, we are only supposed to deal
with questions of law. But this approach rests on
the premise that the finding of facts are based on
correct appreciation of the evidence. If, as in this
case, both courts below completely
misapprehended the substance, nature and quality

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 of evidence, resulting in an unfair conviction, this
Court must, in the interest of justice, intervene. "

In the light of the foregoing extract, we must state, from the outset,

that in the present case the nature and quality of the evidence relied upon

by the first appellate court in upholding the appellant's conviction merit our

intervention.

On the first ground of appeal, we are, with respect, in full agreement

with the learned State Attorney's submission. The law on the value of

visual identification evidence is now fairly settled. In the first place, it is

evidence of the weakest kind and courts should not act on such evidence

unless satisfied that all possibilities of mistaken identity are eliminated and

the evidence is absolutely watertight. (See; WAZIRI AMANI V. R.,

(1980) TLR 250). Secondly, in matters of identification, it is not enough

merely to look for factors favouring accurate identification. Equally

important is the credibility of witnesses. The conditions of identification

may appear ideal but that is no guarantee against untruthful evidence

(See; lARIBU ABDULLAH V. R., Criminal appeal No. 220 of 19994

(unreported).

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 Admittedly, the undisputed robbery incident in the present case took

place in broad daylight during which PWS and PW6 asserted, in their

respective testimonial accounts, that they unmistakably identified the

appellant as being one of the perpetrators of the robbery. As hinted earlier,

their evidence entailed the descriptive particulars of the appellant as he

was allegedly seen at the scene of crime. On this aspect of the case, the \
~~
Court of Appeal for Eastern African in MOHAMED ALHUI V. REX (1942)

9 E.A.C.A.72 made the following pertinent holding:-

''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 given are matters of the highest
importance and ought a/ways to be given: first of
a/I, of course, by the persons who gave the
description and purports to identify the accused,
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and then by the person or persons to whom the 4

description was given. "

In this case, the evidence on record is clear that PWS,PW6and other

victims of the robbery reported the incident to the police authorities at Mto

Wa Mbu police station soon after its occurrence. Yet, as said earlier, the

descriptive particulars of the appellant was never given to PW3 D.C. Yasin,

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a police officer to whom that incident was firstly reported. Their belated

description of the appellant was made in the course of trial on 25/11/2009

which was over fifteen (15) months after the robbery incident. Upon these

glaring brief facts, we are of the firm view that the purported identification

of the appellant by PW5 and PW6 in the course of trial was undoubtedly

dock identification. Commenting on the value of dock identification

evidence where no identification parade is held, this Court in the case of

MUSSA ELIAS AND TWO OTHERS V. R., Criminal Appeal No. 172 of

1993 (unreported) said:-

''PW3s dock identification of the :fd appellant is

valueless. It is a well established rule that· dock
identification of an accused person by a witness
who is a stranger to the accused has value only
where there has been an identification parade at
which the witness successfully identified the
accused before the witness was called to give
evidence at the trial"

On the authority of the holding in MUSA ELIAS case (supra), we

find that the dock identification of the appellant by PW5 and PW6 which

was not preceded by an identification parade was evidentially worthless.

Indeed, the failure by the said prosecution witnesses to make the

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description of the appellant at the earliest opportunity to PW3 or other

persons renders their assertion of having identified the appellant at the

scene of crime highly suspect, implausible and has cast grave doubts on

the credibility and reliability of these two witnesses.

Next, we turn to the discussion of the second and third grounds of

appeal together. In sustaining the appellant's conviction, the first appellate

court apart from relying on the purported visual identification evidence, it

also invoked the doctrine of recent possession.In his judgment appearing

on pages 113-117 of the record, the learned Judge of the first appellate

court said:-
....;
"The finding of the stolen items with the particulars
of the victims indicate that the prosecution proved
the case beyond reasonable doubt against the
appel/ant. "

On our part, we have had an advantage of perusing and subjecting

the entire proceedings in the record to a very close scrutiny. In so doing,

we found no evidence implicating the appellant in having been found in

possessionof any item belonging to any victim of the robbery incident. As

correctly submitted by the learned State Attorney, we hasten to make a

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finding that by invoking the doctrine of recent possession, the first

appellate court misapprehended the evidence on record thereby sustaining

the appellant's conviction against the weight of evidence.

However, if the evidence of PW4 D.7086 Cpl. Joseph and that in the

4th accused's cautioned statement (EXH.PIII) is anything to go by, the

appellant is implicated in having led PW3 and other police officers to a

certain house in Monduli Juu where a gun SAR 86957 (EXH.PIV) was

retrieved. All the same, as correctly submitted by the learned State

Attorney, this piece of evidence is not without its attendant serious

shortcoming.

...;.
We have found no evidence on record establishing the requisite

nexus between the said gun and the robbery incident in question, not to

mention the absence of the ballistic expert report. As matters stand, it is

not easy to say with certainity EXH.PIVis the same gun that was used by

the bandits in the course of committing the robbery. In the same vein and

having discredited the visual identification evidence of PW5 and PW6, the

outstanding evidence touching on the gun by itself, without more, does not

squarely link and place the appellant at the scene of the robbery incident

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on 3/6/2008. There being no credible evidence linking the appellant with

the offence of armed robbery, the charge of conspiracy to commit the

same offence remain unestablished.

All the above considered, we are satisfied that the case for the

prosecution against the appellant was not proved beyond reasonable

doubt. Accordingly, we allow this appeal, quash the appellant's conviction

,
and set aside the sentences meted out and upheld, respectively, by the ,.i
,.
.~.

trial court and the High Court. Consequently, we order the immediate

release of the appellant from prison unless otherwise lawfully held.

DATED at ARUSHA this zs" day of February, 2015.

E.A. KILEO
JUSTICE OF APPEAL

S. MJASIRI
JUSTICE OF APPEAL

5.5. KAIJAGE
JUSTICE OF APPEAL

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