IN THE COURT OF APPEAL OF TANZANIA

AT MBEYA

(CORAM: RUTAKANGWA, J.A., BWANA, J.A., and MANDIA, J.A.)

CRIMINAL APPEAL NO. 253 OF 2011

TWISA JAILO …………………………………………….….……...… APPELLANT

VERSUS
THE REPUBLIC ………….……..…..………………………...…… RESPONDENT
(Appeal from the decision of the High Court of Tanzania
at Mbeya)
(Wambura, J.)
dated the 19th day of August, 2011
in
Criminal Appeal No. 16 of 2010

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JUDGMENT OF THE COURT

6th & 16th May, 2014

MANDIA, J.A.:

Twisa Jailo appeared in the District Court of Mbozi District at Vwawa

together with six others to face a charge sheet containing seven counts of

Armed Robbery c/s 285 & 286 of the Penal Code. After trial Twisa Jailo,

who was the second accused in the trial court, and Shadrack Samson,

who was the third accused person in the trial court, were found guilty and

convicted and each sentenced to thirty years imprisonment plus six strokes

of the cane. Twisa Jailo was aggrieved by the conviction and sentence as

well as the order of corporal punishment and he preferred an appeal to the

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High Court of Tanzania at Mbeya. His appeal was dismissed in its entirety.

On his part Shadrack Samson preferred not to appeal against his

conviction and sentence. There was another accused person who

appeared in the trial court as the first accused person. He is Hemed

Mkondya who at first pleaded not guilty together with the other accused

persons. During the trial, after two prosecution witnesses had testified,

Hemed Mkondya changed his plea from “Not Guilty” to “Guilty”. He was

convicted on his own plea of “guilty” and sentenced to thirty years

imprisonment.

The trial District Court had found the rest of the accused persons

“Not Guilty” and had acquitted them, so this left Twisa Jailo only to pursue

the appellate process.

Evidence adduced during the trial tended to show that on the

morning of 22/5/1998 at 8 am. PW1 D 2385 Detective Corporal Michael

was travelling from Tunduma to Vwawa in a minibus Regd. No. TZL 2640.

Between Tunduma and Vwawa the minibus stopped to pick a passenger

who is the appellant Twisa Jailo. The passenger had two pieces of luggage

and sat next to PW1 Det. Cpl. Michael. The police officer testified that the

appellant “looked suspicious” and when they alighted at Vwawa he called

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the appellant to the Police Station, questioned him and searched him. The

search revealed common items like a pair of gumboots, a pair of female

shoes, a pair of khanga, one jacket, one montana bag, a hand bag, one

football, one pair of trousers, one bedsheet, one shirt, one car radio, one

old pair of trousers, bodyline jelly cans, one old towel, one can of

paracetamol tablets, one “bukta”, one torch, 2 batteries of “Bell” make,

Vaseline cans, 3 screwdrivers and one bar of washing soap. PW1 tendered

all those items as a collective Exhibit P1. PW1 went on to tell the trial

court that the appellant confessed to him that he was involved in a robbery

at Msangano so he charged the accused with Robbery via case file

MBO/IR/887/98. The file was handed over to PW2 D 3933 Detective

Constable Saidi of Vwawa Police Station on the same date 22/5/1998 who

testified that the appellant confessed to him orally that he was involved in

a robbery at Zipu Hill. He went on to say that the appellant mentioned

other persons as his confederates in the robbery at Zipu Hill, and that he

arrested and searched each one of the confederate named by the

appellant. The first confederate named by the appellant was Hemed

Mkondya who appeared as the first accused person in the trial court

proceedings. A search on him yielded the following items:-

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- One radio cassette ATECH make with sixteen audio cassettes

- Five pieces of khanga

- Six pieces of kitenge

- 2 bedsheets

- 3 pairs of trousers

- 1coat

- 2 shirts

- One school uniform skirt

- 1 black skirt

- 2 T-shirts

- 1 blouse

- 2 underskirts

- 2 pairs canvas shoes

- 1 pair sandals

- 3 cans of bodyline jelly

- 3 tins of Vaseline jelly

- Child’s underwear

- 2 spanners

- 1 screwdriver

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 The appellant also named the fourth accused who was searched but

nothing was recovered from him. Nothing was also recovered from the

sixth accused who was also named by the appellant, but when the fifth

accused person was searched after he was mentioned by the appellant a

pair of khanga and sixteen bars of washing soap were recovered.

After the first accused was named by the appellant he also named

others in turn. One of those named by the first accused person was the

third accused person Shadrack Samson who was searched and the

following items recovered:-

- One montana bag

- 2 cans of bodyline jelly

- 2 cans of Vaseline jelly

- 13 bars of washing soap.

The first accused also named the seventh accused person who, when

searched, produced nothing. Detective Constable Said tendered the items

seized all the items seized as a collective Exhibit P2.

As we remarked earlier, the appellant was arrested on the morning of

22/5/1998 while in transit from Tunduma to Vwawa. Later on the same

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day, we are not told exactly when, six persons PW2 Sargenti Mwamwezi,

PW4 Hamisi Mwamwengo, PW5 Setwell Amon, PW6 Christopher Siame,

PW7 Gaudence Simbeye and PW8 Henry Sinkala arrived at Vwawa Police

Station. Each one identified one item or other amongst the items which

PW1 D. 2384 Detective Corporal Michael seized from the appellant as

belonging to him. The mode of identification was for the witness picking

an item from the lot and say “this is mine” without giving particular

identifying marks. Each one of the six witnesses testified that on

21/5/1998 they were all travelling from Vwawa Township to Msongamano

village in motor vehicle Registration number TZL 9272. When they arrived

at Zipu Hill they were stopped by several robbers at gunpoint and robbed

of various items. Of the six witnesses, two i.e PW3 Sargenti Mwamwezi

and PW7 Gaudence Simbeye identified their property only but did not

identify the appellant as one of the robbers. Four other witnesses i.e PW4

Hamisi Mwamwengo, PW5 Setwell Amon, PW6 Christopher Siame and PW8

Henry Sinkala identified both items property shown to them at Vwawa

Police Station as belonging to them and also the appellant as one of the

robbers who waylaid them at Zipu Hill the provious day i.e 21/5/1998.

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 After the identification, PW9 Det./Sergent Ivo recorded a cautioned

statement from the appellant which he tendered in evidence as exhibit P3.

Curiously, the witness first read out the contents of the statement in court

and then tendered it in evidence. The trial court then admitted the

cautioned statement as exhibit P3. The last prosecution witness was PW10

D 4632 Detective Corporal Waziri who recorded a cautioned statement

from the third accused person Shadrack Samson. The trial court admitted

the cautioned statement despite protestations from the third accused that

he was beaten before making the statement. There was no inquiry made

by the trial court on the admissibility of the statement before it was

admitted in evidence.

The prosecution closed its case after the trial court had recorded the

testimony of ten witnesses. The appellant was put on his defence which

he gave on oath. The defence of the appellant was very brief. He claimed

that the case against him was a frame up and that he was tortured so that

he admits possession of the property which is subject of the charges.

As we remarked earlier, only the appellant who appeared as the

second accused in the trial court preferred an appeal to the High Court of

Tanzania at Mbeya against his conviction and sentence. His appeal was

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dismissed in its entirety. He has preferred this appeal against the decision

of the High Court. The memorandum of appeal lodged by the appellant

has eight grounds of appeal which raised three general complaints,

namely:-

(a) That the appellant was improperly stopped and searched by

PW1 who was a police officer who did not possess a search

warrant to authorize an arrest and search under section 38(1)

(a) and (3) of the Criminal Procedure Act, as well as Section 42

of the Criminal Procedure Act.

(b) That the five witnesses who identified properties did not

identify the appellant at the scene of crime and the first

appellate judge erred in acting on evidence based upon

identification.

(c) That the first appellate court erred in believing and acting upon

a cautioned statement wrongly admitted in evidence.

The appellant appeared in person, unrepresented, to argue his

appeal. The respondent Republic was represented by Ms. Scholastica

Lugongo, learned State Attorney. The appellant had nothing to add to his

memorandum of appeal. On her part Ms Scholastica Lugongo argued the

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appeal generally, and declined to support the conviction entered and

sentence awarded by the trial court and upheld by the appellate High

Court.

On stopping and search of the appellant the learned State

Attorney centered on the tendering in court of the exhibits which PW1 D

2385 Defective Corporal Michael seized from the appellant. She claimed the

exhibits were tendered collectively and the appellant was not asked if he

had any objection. The learned State Attorney, however, did not cite any

provision of the law or any authority to back her claim. In addition, the

learned State Attorney argued, the witnesses who testified did not describe

the property they claimed belonged to them with any particularity so that

the doctrine of recent possession may apply to the appellant.

We will start with the description of the property by the alleged

owners. We have noted earlier on that each one of the witnesses who

testified in court on identification of the property i.e PW3, PW4, PW5, PW6,

Pw7 and PW8 merely said “this is mine” without giving any identifying

mark peculiar to the item he was identifying. Secondly, after his arrest on

the morning of 22/5/1998, the appellant was handed over to the

investigator PW2 Detective Constable Saidi. The appellant allegedly

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thereafter took Detective Constable Saidi to the houses of his named

confederates who were searched and property seized from them. These

were the first accused in the trial court Hamis Mkondya who pleaded guilty

to the charge, and the third accused Shadrack Samson who was convicted

but declined to appeal. The evidence of PW2 Detective Constable Saidi

shows that more property was seized from Hemed Mkondya than from

either the appellant or Shadrack Simon. The evidence on record shows

that the identifying witnesses came onto the scene after all the property

had been gathered together.

There is no evidence on record to show that during the identification

of the property the police kept the three lots of property separate so as to

know from which lot a particular witness has identified an item. Given

such a situation it cannot be said the witnesses identified property found in

possession of the appellant only.

Let us now go to the circumstances leading to the arrest of the

appellant. The evidence of PW1 shows that the appellant was arrested

midway between Tunduma township and Vwawa township when he

boarded a minibus in which PW1 was travelling. In his evidence PW1 told

the trial court that he “suspected” the appellant and called upon the latter

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to accompany him to Vwawa Police Station for “interrogations.” It was

after the “interrogations” that PW1 arrested the appellant and seized the

two bags which the appellant carried. Presumably PW1 was acting under

section 25(1) (b) of the Criminal Procedure Act which allows any police

officer who suspects any person to have or to be conveying, inter alia, any

property suspected to be stolen goods. In his defence the appellant

claimed the property was planted on him at Vwawa Police Station and he

was tortured to admit possession. Our reading of Section 25(1)(b) of the

Criminal Procedure Act shows that the section requires the police officer

to arrest a person who is having in his possession or conveying such

property in circumstances which raise the suspicion i.e. the arrest and

detention must follow the suspicion. In other words the possession of the

property must be construed ejusdem generis. Here PW1 asked the

appellant to accompany him to the Police Station, which means the

appellant was not under arrest on the way to the Police Station. It was

while inside the Police Station and after “interrogations” that PW1 arrested

the appellant. This is not in strict compliance with Section 25(1) (b).

The allegation by the appellant that the property was lumped on him

and that he was beaten to accept the property it is not far fetched in light

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of the circumstances of the arresrt. A strict observance of the provisions

with regard to powers of detention and search would have closed the door

on the allegation as the one made by the appellant.

We are also in agreement with the observation of the learned State

Attorney that all the witnesses who testified on identification of the

appellant did not give a description of the appellant before the alleged

robbery, and that what they made is dock identification whose value is

suspect as we have held in RAYMOND FRANCIS V. R., Criminal Appeal

No. 162 of 1993. (1994) TLR 100. There was also no identification parade.

We agree that the appellant was not properly identified both at the scene

of crime and at Vwawa Police Station. We are convinced that both the trial

court and the first appellate court have not applied the safeguards against

mistaken identity which we have set out in many cases, amongst them

being SHAMIR JOHN V.R., criminal appeal No. 166 of 2004, MENGI

PAULO S. LUHANGA & ANOTHER V.R., Criminal appeal No. 222 of 2006

and BONIFACE SIWINGWA V. R., Criminal appeal No. 42 of 2007 (all

unreported) which insist on evidence of identification being watertight

before it is acted upon.

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 Both the trial court and the appellate High Court acted on a

confession which the appellant had made to the Police in the form of a

cautioned statement recorded by PW9 B 8547 Detective Sergent Ivo. The

record shows that the witness read out loud the statement in open court

then asked the court to receive it in evidence. The trial court granted the

request and the statement was received in evidence. During cross-

examination of the police witness by the appellant the answer by the police

officer showed that the appellant was repudiating the statement but the

trial court did not go further to examine on the voluntariness of it. This

was prejudicial to the appellant. The trial court had also acted prejudicially

against the appellant when it allowed the statement to be read out loud

even before it was put in evidence. This conduct goes against the grain of

ROBINSON MWANJISI AND 3 OTHERS V. R., Criminal appeal No. 154

of 1994 where this Court observed:-

“Whenever it is intended to introduce any

document in evidence, it should first be cleared for

admission, and be actually admitted, before it can

be read out.”

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 The injunction in the above-quoted case was not followed by the trial

court, and the first appellate court did not see the default. We accordingly

find the cautioned statement put in evidence against procedure to be of no

evidential value. We therefore expunge it from the record. For all the

shortcomings enumerated above we find the appeal to be with merit and

we accordingly allow it. We quash the conviction and set aside the

sentence. The appellant should be released from jail unless he is held on

some other lawful cause.

DATED at MBEYA this 15th day of May 2014.

E.M.K. RUTAKANGWA
JUSTICE OF APPEAL

S.J. BWANA
JUSTICE OF APPEAL

W.S. MANDIA
JUSTICE OF APPEAL

I certify that this is a true copy of the original.

F.J. Kabwe
DEPUTY REGISTRAR
COURT OF APPEAL

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