Citation Parties Legal Principles
Discussed
CRIMINAL APPEAL ANUARY NANGU, 2. Basis for the conviction
NO.109 OF 2006- COURT KAWAWA ATHUMAN Vs by the trial court was
OF APPEAL OF TANZANIA REPUBLIC- (Appeal the identification of the
AT DODOMA- MUNUO,J.A., from the judgment of appellants- the evidence
KAJI,J.A., And KIMARO, the High of visual identification is of
J.A. Court at Dodoma- the weakest kind and most
Criminal Appeal No.79 unreliable. See Waziri
of 2002- MJASIRI, J.) Amani Vs Republic
[1980] TLR 250.
IN THE COURT OF APPEAL OF TANZANIA
AT DODOMA
(CORAM: MUNUO,J.A., KAJI,J.A., And KIMARO,J.A.)
CRIMINAL APPEAL NO.109 OF 2006
1. ANUARY NANGU
2. KAWAWA ATHUMAN……………………….APPELLANTS
VERSUS
THE REPUBLIC…………………………………..RESPONDENT
(Appeal from the judgment of the High
Court at Dodoma)
( MJASIRI,J. )
dated the 19th December, 2005
in
Criminal Appeal No.79 of 2002
JUDGMENT OF THE COURT
1
13 & 22 June, 2007
KIMARO, J. A.
The appellants were charged in the District Court of Iramba at
Kiomboi with the offence of robbery with violence contrary to
sections 285 and 286 of the Penal Code and they were convicted
and sentenced to fifteen years imprisonment. Their appeal to the
High Court was dismissed and the sentence was enhanced to
thirty years imprisonment.
The case for the prosecution in the trial court was that on 8th
October, 2000 at about 8.00 p.m. while Shingadeda Kitamka
(PW1) was returning home from Basuto auction, in the compamy
of Stephano Marembo (PW2), the appellants attacked him with a
stick and knife at Ishinsi village, and stole from him cash T.shs
35,000/=, one bed sheet valued at T.shs 3,500/= together with
one shirt valued at T. shs. 1,500/= making the total value of the
items stolen T. shs. 40,000/=.
The basis for the conviction by the trial court was the
identification of the appellants. The testimony of the complainant
(PW1) on the identifying circumstances was the time taken to
commit the offence, which was long, there was moonlight, the
appellants lived in the same village and he had seen the
appellants several times before. He was also able to describe the
2
type of clothes which each of the appellants wore when the
incident took place. PW2 identified the first appellant on the same
conditions. As for the second appellant, PW2 saw him for the first
time but he said he was able to identify him because of moonlight
and the time taken to have the offence committed.
The trial court was satisfied that the identifying conditions left
no room for mistaken identity and convicted the appellants as
charged.
Among the grounds of appeal in the first appeal court was
identification of the appellants. The first appellate judge was
satisfied with the appraisal of the evidence on identification by the
trial court and dismissed the appeal. The first appeal court also
noted that in terms of Act No 10 of 1989 which amended the
Penal Code, the sentence of fifteen years imprisonment imposed
on the appellants was unlawful and enhanced the sentence to
thirty years imprisonment.
The appellants were aggrieved and they have come for a
second appeal to this Court. At the hearing of the appeal, the
appellants appeared in person. Mr. Anselm Mwampoma Principal
State Attorney, represented the respondent Republic.
3
The appellants filed about eight grounds of appeal but the most
important ground, as correctly submitted by the learned Principal
State Attorney, is the one on the identification of the appellants.
In fact that was the only contentious issue in the trial court. On
the robbery, there was no doubt at all that it was committed. The
undisputed evidence of PW1 was that he was attacked by a knife
and his own stick which the culprits picked up when they fell him
down, and the properties already mentioned stolen.
In upholding the decision of the trial court, the first appellate
judge remarked on the identification of the appellants as follows:
The basis of the conviction by
the trial court is the evidence by PW1
and PW2. It is my finding that the trial
court had justification in relying on the
evidence of identification. The evidence
of PW1 was corroborated by PW2. The
evidence was to the effect that the first
appellant and second appellant were known
by PW1 and the first appellant was known
to PW2 as they were from the same village
…Both PW1 and PW2 gave a description of
what the appellants were wearing.
4
The appellants’ complaint on their identification, found on
grounds 4, 5 and 6 of their joint memorandum of appeal was that
the first appeal court misdirected itself by accepting identification
by voice because it was the most unreliable method of
identification. They cited the case of Nuru Selemani Vs
Republic [1984] TLR 93. As regards the identification of the
clothes they had on, they contended that the description given by
the witnesses was not sufficient because no particular mark of
identity was given. The appellants relied on the case of Salehe
Karonga and Another Vs Republic CAT Criminal Appeal No.46
of 2001 (Mwanza) (Unreported). The appellants further argued
that it was dangerous to accept the evidence of visual
identification without taking precaution. As the witnesses did not
describe the brightness of the moonlight and the offence was
committed under confusion since the complainant was assaulted,
a mistaken identity could not be ruled out.
On his part the learned Principal State Attorney submitted that
the identification of the appellants by PW1 and PW2 left no doubt.
He revisited the evidence of the prosecution witness and argued
that it shows favourable conditions for identification. First, there
was moonlight. Second, Pw1 knew both appellants before and
they lived in the same village, while PW2 who lived in the same
village as PW 1, also identified the first appellant as their village
mate and he too, had seen the first appellant several times before
5
the commission of the offence. Third, before PW1 was attacked, a
conversation took place between the complainant and his
assailants and so there was sufficient time to recognize the
appellants. The time taken before the commission of the offence
also assisted PW2 to identify the second appellant.
Mr. Mwampoma agreed that the decision of Nuru Selemani
(supra) cited by the appellant was correct but he argued that the
facts of the case can be distinguished from the facts of this case
because the appellants were not only identified by voice. He
prayed that the ground of appeal on identification be dismissed.
As already mentioned, the main ground of appeal is the
identification of the appellants. We do not hesitate to say that we
entirely agree with the learned Principal State Attorney that both
appellants were sufficiently identified. We are aware that the
evidence of visual identification is of the weakest kind and most
unreliable. See Waziri Amani Vs Republic [1980] TLR 250.
The conditions for identification in this case, as gathered from
the evidence were favourable. The complainant knew the
appellants before, they were staying in the same village and there
was moonlight. He was also able to identify the type of clothes
the appellants wore, and also their colour and the voice of the
6
appellants. It took sometime before the offence was committed,
as the attack was preceded by a conversation. PW2 corroborated
the evidence of PW1 on the identification of the first appellant.
Under these circumstances, we agree that there was no room for
mistaken identity. We also agree that the appellants were not
convicted on the identity of voice only, but on a combination of all
the elements mentioned above. In this context, the cases of
Nuru Selemani (supra) and Salehe Kalonga And Another
(supra) relied upon by the appellants are irrelevant.
The appellants also complained why a person who assisted the
complainant (PW1), one Boniface, was not summoned as a
witness. PW1 said in his evidence that after he was attacked by
the appellants, one Boniface, who passed by and found the
complainant, assisted him (complainant) and escorted him home.
The answer by the learned Principal State Attorney was that he
was not a necessary witness. Our considered view is that the
prosecution was at liberty to choose the witnesses whom they
considered important because what matters was to discharge their
burden of proof and not the number of witnesses they summoned.
See section 143 of the Law of Evidence Act, 1967. If
Boniface was not important for purposes of proving their case, he
was not a necessary witness and the omission to bring him did not
affect the prosecution case.
7
In the event there is no reason to fault the decision of the first
appeal court. The appeal by the appellants is dismissed.
DATED at DODOMA this day of June, 2007.
E.N.MUNUO
JUSTICE OF APPEAL
S.N.KAJI
JUSTICE OF APPEAL
N.P.KIMARO
JUSTICE OF APPEAL
8
9
