ngoshwe
JF-Expert Member
- Mar 31, 2009
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Wakuu, hapa chini nimejaribu kuwadondoshea na kuwafunghashia kwa rejea yenu baadhi ya hukumu za hivi karibuni zilizotolewa na Mhe. Jaji Rwakibalira na kutenguliwa na Mahakama ya Rufani ya Tanzania kwa mtazamo tofauti.
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CIVIL APPEAL NO. 32 OF 2010
KAPAPA KUMPINDI APPELLANT
VERSUS
THE PLANT MANAGER,
TANZANIA BREWERIES LTD. .. RESPONDENT
(Appeal from the decision, Judgment and Decree
of the High Court of Tanzania
at Mwanza)
(Rwakibarila, J.)
CAT Held: All the same, on full reflection of the appellants major grievance as shown immediately above, he with transparent honesty and quite correctly in our view, conceded the fatal legal error committed by the learned first appellate judge. As any honest lawyer of his calibre would have done, he agreed that indeed the High Court never decided the crucial issue which was the basis of the appeal before it but based its decision on non issues, on which the parties were not heard. He accordingly submitted that the High Court decision be quashed and the appeal be remitted to the High Court for a re-hearing before another judge.
On our part, on the basis of the earlier elaboration, we are at one with both parties to this appeal that the learned first appellate judge acted without jurisdiction. He abdicated his duty to decide the issue before him in the appeal on which the parties fully addressed him. He, instead, purported to predicate his decision on issues which not only were never specifically raised in the appeal, but were also never canvassed by the appellant at all and/or only fleetingly mentioned by the respondent in respect of the issue of res-judicata only. As we have already demonstrated, the key issue of whether or not the learned trial Resident Magistrate rightly struck out the suit remains undecided to date. We would not be wrong, therefore, in asserting that this was one of the rare instances of a mistrial at the appellate stage. We say so deliberately because it is settled law that a first appeal is in the form of a re-hearing.
It is our conviction, therefore, that this is not a proper case in which we can justifiably put on the shoes of the High Court and decide the undecided appeal in the High Court. We are accordingly constrained to accede to the call of Mr. Tenga, for we believe this is a fit case for an order of a re-hearing.
CRIMINAL APPEAL NO. 13 OF 2010
BETWEEN
DICKSON MALEKERA . APPELLANT
AND
THE REPUBLIC . .. . .RESPONDENT
CAT held: The magistrate appears to have been oblivious of the appellants defense that the case was framed up against him and that he was never in possession of the boat engine in the first place. The first appellate judge also did not address himself to the contradictions of the prosecution witnesses which were pointed out by the appellant in his defense. Had the courts below properly evaluated both the evidence for the prosecution and the defense as they were compelled to do, then no doubt this matter would not have come to this Court. It would either have ended up in the trial court by the acquittal of the appellant or in the High Court by the allowing of the appellants appeal as did happen in the Criminal Appeal No. 170 of 2006 which as we have labored to show originated from the same set of circumstances as this appeal
CRIMINAL APPEAL NO. 198 OF 2010
1. SOKOINE RANGE @ CHACHA ]
2. NYAMANGA RANGE @ CHACHA ] .. APPELLANTS
VERSUS
THE REPUBLIC .. RESPONDENT
(Appeal from the decision of the High Court
of Tanzania at Mwanza)
(Rwakibarila, J.)
CA: As already shown above in this judgment, the two courts below were easily persuaded to believe that there was an armed robbery which was committed by the appellants, because of two factors. One, the appellants and their colleagues were previously known to PW1 Lutente. Two, the alleged scene of the crime was brightly lit by electricity from nearby houses. The two courts however, ignored other crucial factors. These were: One, the distance between the scene of the crime and the houses from which the light was coming from. Two, if the scene of the crime was so well lit as to enable PW1 Lutente to make an unmistaken identification, then there would have been no need for him to try to ward off the attack on him by introducing himself to the bandits as we have already shown. The act of introducing himself as he did, leads to a reasonable inference that there was no light at the scene of the crime. Three, contrary to the holding of the courts below, the scene of the crime was not at the coffee house where he had recharged his mobile phone. He had already left that place. It is our considered opinion, then, that had the two courts below considered these obvious facts they would not have readily held that the conditions prevailing at the alleged scene of the crime were favourable to an impeccable identification of the bandits.
CIVIL APPEAL NO. 126 OF 2011
BETWEEN
TANZANIA REVENUE AUTHORITY APPELLANT
AND
DAWSON ISHENGOMA .. .. RESPONDENT
(Appeal from the Judgment of the High Court
of Tanzania at Mwanza)
(Rwakibarila, J.)
CAT: In the circumstances we find ground two on period of limitation to have been preferred with good cause. The learned trial judge ought to have dismissed the suit on account of being barred by period of limitation. Having so found we consider it futile to embark on the other grounds of appeal.
CRIMINAL APPEAL NO. 185 OF 2010
1.
2. WILSON CHARLES .................................... APPELLANTS
3. TUMAINI PAULO
VERSUS
THE REPUBLIC ....................................................................... RESPONDENT
(Appeal from the decision of the High Court of
Tanzania at Mwanza)
(Rwakibarila, J.)
Facts: Their appeal against conviction was dismissed by the High Court (Rwakibarila, J.) sitting at Mwanza. The learned first appellate judge was satisfied, like the trial Resident Magistrate, that a robbery was committed as alleged and the identification evidence of PW1 Fatuma and PW2 Juma, upon which the conviction was predicated was impeccable. Hence this second appeal.
CAT Observation:
Their appeals were consolidated and heard together by Rwakibarila, J., who sustained their conviction. In dismissing the appeals, the learned first appellate judge properly directed himself on the need to treat visual identification evidence with caution. He then concluded:-
According to what PW1 claries (sic), there was adequate electricity lights from the KKKT church premises which sufficiently illuminated the locus in quo, when appellants attacked him. Therefore there were no possibilities of PW1 confusing the identities of appellants because he knew them well and they were in close contact with him before they turned up later and staged a vicious attack on him.
We have noted that the appellants in their appeals had tried to impeach the credibility of the prosecution witnesses, as they gave contradictory evidence. This complaint, in our respectful view, should have put the learned first appellate judge on alert. Being a first appeal, he was enjoined by law to subject the entire evidence to an objective scrutiny and arrive at his own findings of fact. This he failed to do. Without alluding to the alleged contradictions, the learned appellate judge said:-
Even the discrepancies which appellants stated that existed did not affect the fact that PW1 properly identified them (appellants) when they invaded him. Therefore this appeal has no merit and it is dismissed entirely.
We are strongly of the view that this was an improper way of dealing with a first appeal, which is always in the form of a re-hearing. This, then, gives us jurisdiction to step into the shoes of the High Court and do what it failed to do.
Held: We have carefully gone through the evidence and the judgments of the two courts below. We must confess more in sorrow than in fear of dismaying anybody that we have found out that both the trial Resident Magistrate and the learned first appellate judge did not address themselves to these salient points which go to render their account of the alleged robbery highly improbable, and suspect.
This Court in the case of Jaribu Abdalla v. R., Criminal Appeal No. 220 of 1994 (unreported), succinctly held thus:-
in matters of identification it is not enough merely to look at factors favouring accurate identification. Equally important is the credibility of witnesses. The conditions of identification might appear ideal but that is no guarantee against untruthful evidence.
This Court further lucidly held in Mengi Paulo Samwel Luhana & Another v. R., Criminal Appeal No. 222 of 2006 (unreported) that:-
eyewitness testimony can be devastating when false identification is made due to honest confusion or outright lying.
[Emphasis is ours].
In view of the above findings and inferences, we have found ourselves constrained to hold that on the sketchy and highly suspect evidence on record, for even the investigators never visited the scene of the alleged crime, the prosecution abysmally failed to prove beyond reasonable doubt that any offence, leave alone the alleged armed robbery, was committed by the appellants or any other person, at the home of PW1 Fatuma. In our respectful view, had the two courts below dispassionately evaluated the entire evidence, they would not have convicted the appellants.
Regarding the issue of the impugned visual identification evidence, we think it ought not to detain us now. That evidence, coming from PW1 Fatuma and PW2 Juma, whose credibility is not beyond reproach, as already demonstrated, leaves us with no lurking doubts in our minds that it is patently lacking in cogency. It is our finding, therefore, that even if the offence of armed robbery had been proved, we would not have failed to hold that it was not proved that the appellants had been impeccably identified as the robbers. The said evidence was not absolutely watertight at all.
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CIVIL APPEAL NO. 32 OF 2010
KAPAPA KUMPINDI APPELLANT
VERSUS
THE PLANT MANAGER,
TANZANIA BREWERIES LTD. .. RESPONDENT
(Appeal from the decision, Judgment and Decree
of the High Court of Tanzania
at Mwanza)
(Rwakibarila, J.)
CAT Held: All the same, on full reflection of the appellants major grievance as shown immediately above, he with transparent honesty and quite correctly in our view, conceded the fatal legal error committed by the learned first appellate judge. As any honest lawyer of his calibre would have done, he agreed that indeed the High Court never decided the crucial issue which was the basis of the appeal before it but based its decision on non issues, on which the parties were not heard. He accordingly submitted that the High Court decision be quashed and the appeal be remitted to the High Court for a re-hearing before another judge.
On our part, on the basis of the earlier elaboration, we are at one with both parties to this appeal that the learned first appellate judge acted without jurisdiction. He abdicated his duty to decide the issue before him in the appeal on which the parties fully addressed him. He, instead, purported to predicate his decision on issues which not only were never specifically raised in the appeal, but were also never canvassed by the appellant at all and/or only fleetingly mentioned by the respondent in respect of the issue of res-judicata only. As we have already demonstrated, the key issue of whether or not the learned trial Resident Magistrate rightly struck out the suit remains undecided to date. We would not be wrong, therefore, in asserting that this was one of the rare instances of a mistrial at the appellate stage. We say so deliberately because it is settled law that a first appeal is in the form of a re-hearing.
It is our conviction, therefore, that this is not a proper case in which we can justifiably put on the shoes of the High Court and decide the undecided appeal in the High Court. We are accordingly constrained to accede to the call of Mr. Tenga, for we believe this is a fit case for an order of a re-hearing.
CRIMINAL APPEAL NO. 13 OF 2010
BETWEEN
DICKSON MALEKERA . APPELLANT
AND
THE REPUBLIC . .. . .RESPONDENT
CAT held: The magistrate appears to have been oblivious of the appellants defense that the case was framed up against him and that he was never in possession of the boat engine in the first place. The first appellate judge also did not address himself to the contradictions of the prosecution witnesses which were pointed out by the appellant in his defense. Had the courts below properly evaluated both the evidence for the prosecution and the defense as they were compelled to do, then no doubt this matter would not have come to this Court. It would either have ended up in the trial court by the acquittal of the appellant or in the High Court by the allowing of the appellants appeal as did happen in the Criminal Appeal No. 170 of 2006 which as we have labored to show originated from the same set of circumstances as this appeal
CRIMINAL APPEAL NO. 198 OF 2010
1. SOKOINE RANGE @ CHACHA ]
2. NYAMANGA RANGE @ CHACHA ] .. APPELLANTS
VERSUS
THE REPUBLIC .. RESPONDENT
(Appeal from the decision of the High Court
of Tanzania at Mwanza)
(Rwakibarila, J.)
CA: As already shown above in this judgment, the two courts below were easily persuaded to believe that there was an armed robbery which was committed by the appellants, because of two factors. One, the appellants and their colleagues were previously known to PW1 Lutente. Two, the alleged scene of the crime was brightly lit by electricity from nearby houses. The two courts however, ignored other crucial factors. These were: One, the distance between the scene of the crime and the houses from which the light was coming from. Two, if the scene of the crime was so well lit as to enable PW1 Lutente to make an unmistaken identification, then there would have been no need for him to try to ward off the attack on him by introducing himself to the bandits as we have already shown. The act of introducing himself as he did, leads to a reasonable inference that there was no light at the scene of the crime. Three, contrary to the holding of the courts below, the scene of the crime was not at the coffee house where he had recharged his mobile phone. He had already left that place. It is our considered opinion, then, that had the two courts below considered these obvious facts they would not have readily held that the conditions prevailing at the alleged scene of the crime were favourable to an impeccable identification of the bandits.
CIVIL APPEAL NO. 126 OF 2011
BETWEEN
TANZANIA REVENUE AUTHORITY APPELLANT
AND
DAWSON ISHENGOMA .. .. RESPONDENT
(Appeal from the Judgment of the High Court
of Tanzania at Mwanza)
(Rwakibarila, J.)
CAT: In the circumstances we find ground two on period of limitation to have been preferred with good cause. The learned trial judge ought to have dismissed the suit on account of being barred by period of limitation. Having so found we consider it futile to embark on the other grounds of appeal.
CRIMINAL APPEAL NO. 185 OF 2010
1.
2. WILSON CHARLES .................................... APPELLANTS
3. TUMAINI PAULO
VERSUS
THE REPUBLIC ....................................................................... RESPONDENT
(Appeal from the decision of the High Court of
Tanzania at Mwanza)
(Rwakibarila, J.)
Facts: Their appeal against conviction was dismissed by the High Court (Rwakibarila, J.) sitting at Mwanza. The learned first appellate judge was satisfied, like the trial Resident Magistrate, that a robbery was committed as alleged and the identification evidence of PW1 Fatuma and PW2 Juma, upon which the conviction was predicated was impeccable. Hence this second appeal.
CAT Observation:
Their appeals were consolidated and heard together by Rwakibarila, J., who sustained their conviction. In dismissing the appeals, the learned first appellate judge properly directed himself on the need to treat visual identification evidence with caution. He then concluded:-
According to what PW1 claries (sic), there was adequate electricity lights from the KKKT church premises which sufficiently illuminated the locus in quo, when appellants attacked him. Therefore there were no possibilities of PW1 confusing the identities of appellants because he knew them well and they were in close contact with him before they turned up later and staged a vicious attack on him.
We have noted that the appellants in their appeals had tried to impeach the credibility of the prosecution witnesses, as they gave contradictory evidence. This complaint, in our respectful view, should have put the learned first appellate judge on alert. Being a first appeal, he was enjoined by law to subject the entire evidence to an objective scrutiny and arrive at his own findings of fact. This he failed to do. Without alluding to the alleged contradictions, the learned appellate judge said:-
Even the discrepancies which appellants stated that existed did not affect the fact that PW1 properly identified them (appellants) when they invaded him. Therefore this appeal has no merit and it is dismissed entirely.
We are strongly of the view that this was an improper way of dealing with a first appeal, which is always in the form of a re-hearing. This, then, gives us jurisdiction to step into the shoes of the High Court and do what it failed to do.
Held: We have carefully gone through the evidence and the judgments of the two courts below. We must confess more in sorrow than in fear of dismaying anybody that we have found out that both the trial Resident Magistrate and the learned first appellate judge did not address themselves to these salient points which go to render their account of the alleged robbery highly improbable, and suspect.
This Court in the case of Jaribu Abdalla v. R., Criminal Appeal No. 220 of 1994 (unreported), succinctly held thus:-
in matters of identification it is not enough merely to look at factors favouring accurate identification. Equally important is the credibility of witnesses. The conditions of identification might appear ideal but that is no guarantee against untruthful evidence.
This Court further lucidly held in Mengi Paulo Samwel Luhana & Another v. R., Criminal Appeal No. 222 of 2006 (unreported) that:-
eyewitness testimony can be devastating when false identification is made due to honest confusion or outright lying.
[Emphasis is ours].
In view of the above findings and inferences, we have found ourselves constrained to hold that on the sketchy and highly suspect evidence on record, for even the investigators never visited the scene of the alleged crime, the prosecution abysmally failed to prove beyond reasonable doubt that any offence, leave alone the alleged armed robbery, was committed by the appellants or any other person, at the home of PW1 Fatuma. In our respectful view, had the two courts below dispassionately evaluated the entire evidence, they would not have convicted the appellants.
Regarding the issue of the impugned visual identification evidence, we think it ought not to detain us now. That evidence, coming from PW1 Fatuma and PW2 Juma, whose credibility is not beyond reproach, as already demonstrated, leaves us with no lurking doubts in our minds that it is patently lacking in cogency. It is our finding, therefore, that even if the offence of armed robbery had been proved, we would not have failed to hold that it was not proved that the appellants had been impeccably identified as the robbers. The said evidence was not absolutely watertight at all.