Rashidi Ally vs Republic [1987] TZHC 32 (28 September 1987)


Chipeta, J.: The appellant, Rashid Ally, was convinced of the offences of personating a D public officer and obtaining money by false pretences c/ss.  100(2) and 302 of the Penal Code.  He was sentenced, respectively, to one year and three years imprisonment, which sentences were ordered to run concurrently. E
The prosecution's evidence was to the effect that on 4th August, 1986, the complainant (P.W.1) and his two colleagues, P.W.2 and P.W.3, drove to Nzega from Mwanza in a Landrover.
On their arrival at Nzega they were confronted by a man who introduced himself to them F to be Corporal Joseph of the Police traffic section.  The man demanded identity cards of the witnesses.  P.W.2 and P.W.3 produced theirs, but P.W.1 did not have his own.  The man then asked P.W.1, who was the driver of the Landrover to produce his log book; but P.W.1 did not have it.  Thereupon the man told the three witnesses to go with him to the Police station. G
After moving a short distance, the man ordered P.W.1 to stop, which P.W.1 did, and the man demanded to be given Shs. 1,000/= "So that the matter could be settled".  P.W.1 then gave the man Shs. 1,000/=, then the man left.
Next day, the three witnesses learnt that there was no Police officer known as Corporal H Joseph at Nzega.  It was then that the three witnesses realized that they had been taken for a ride and that their "Police corporal" was no more than an imposter.  The matter was then reported to Police.
The prosecution witnesses went on to testify that some two days later, P.W.2 and I P.W.3 saw the appellant at an hotel at Nzega,

and they identified him to be the man who had posed as Corporal Joseph.  So they A arrested him and took him to the police station.
The appellant  put up a defence of alibi.  He told the trial court that on 24th July, 1986, he left Singida for Dodoma in answer to a court summons issued by Dodoma Urban Primary Court in a case in which he was the complainant.  He produced the said B summons as an exhibit.  He went on to tell the trial court that on that day the case was adjourned to 3rd August, 1986 as some of the witnesses did not turn up, and on 3rd August, 1986, the case was adjourned to 14th August 1986 as one of the accused persons was sick.  He then left Dodoma for Tabora by train on 4th August, 1986, the C day the alleged offences were committed, and he arrived at Tabora at 10.30 p.m.  He produced a Railway train ticket showing Manyoni to Tabora as an exhibit.  He went on to say that he travelled to Nzega on 5th August, 1986 where he arrived on 6th August, 1986, and to his surprise, he was arrested by P.W.2 and P.W.3. D
The learned trial district magistrate believed the prosecution witnesses to be truthful and, after discussing the relevant law, held that the witnesses correctly identified the appellant.  He rejected the appellant's alibi as mere contrivance.
There is more than ample authority for the proposition that in order to justify a conviction E solely on evidence of identification, such evidence must be watertight. (See R. v Eria Sebwato [1960] E.A. 1974).  It is equally well settled that in any case in which there is a question as to the identity of the accused, the fact of there having been given a description and the terms of that description are matters of the highest importance of F which evidence ought always to be given.  (See Mohamed bin Allui v R., 9 E.A.C.A. 72).
In the instant case, the incident occurred at night.  The only description given by the witnesses was that the imposter wore a black suit.  None of the identifying witnesses G gave any other description of the culprit either to the Police or in court.  Like the learned state attorney who, incidentally, declined to support the convictions, I am not persuaded that a black suit is a sufficient identifying mark in such circumstances.
The evidence of identification is further weakened by the appellant's alibi.  That alibi was H not cracked and so I feel that to call it a contrivance can hardly be justified.  The law is that where an accused person puts forward a defence of alibi, he does not thereby assume the burden of proving such alibi.  It is sufficient if such alibi introduces reasonable I doubt in the prosecution's case.  That was the case here.

For these reasons, it would not be safe to sustain the appellant's convictions.  The same A are accordingly hereby quashed and sentences set aside.  The appellant shall be released from custody forthwith unless further held in some other lawful connection.
B Appeal allowed.


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