Court name
Court of Appeal of Tanzania

Moses Charles Deo vs Republic () [1987] TZCA 13 (01 October 1987);

Law report citations
1987 TLR 134 (TZCA)
Media neutral citation
[1987] TZCA 13

Mapigano and Mfalila, Ag. JJ.A. and Omar, J.A.:  Moses Kasisi, also known as A Charles Deo, was brought to the Court of Resident Magistrate at Kisutu along with two other persons jointly charged with four counts of robbery with violence contrary to sections 285 and 286 of the Penal Code, one count of rape contrary to section 130 of B the Penal code, and one count of unlawful possession of offensive weapons contrary to section 8 (1) of the National Security Act, 1970.  It has been contended before this court that the count of unlawful possession of offensive weapons was flawed, but we will leave that for later. C
The third accused, Bernard Shabani, also known as Luto Beni, jumped bail before the starts of the hearing and it appears that he is still at large.  The learned magistrate applied the  relevant provisions of the law and proceeded to try Bernard in absentia.  The magistrate convicted all of them on only two counts of robbery and on the other two D counts.  On the day of prosecuting the other co-accused, one Haruna Rashid, also known as Alli Basho, did not turn up.  Like Bernard he was sentenced in absentia.  The trial magistrate handed down a substantive sentence of imprisonment for seven years to each of  them and Haruna has not been arrested to-date.
Moses who was described as the second accused was dissatisfied with the convictions E and the sentences.  He lodged an appeal to the High Court at Dar es Salaam.  He engaged an advocate, Mr. Lipiki, to appear for him.  He succeeded in part.  In his  judgement dated 26.11.86 the learned judge (Kazimoto, J) upheld all the convictions F and the sentences except the conviction and the sentence on the rape charge.  In real terms that fractional success was hardly of any consequence.  Again Moses was not satisfied and he instructed his counsel Mr. Lipiki to lodge an appeal to this court, against the decision of the High Court to the extent that it dismissed his appeal. G
The incident that gave rise to this case took place in the city of Dar es Salaam  on 26.2.80 during the night.  We have read the evidence that was adduced in the trial court.  That which was led by the prosecution depicts the appellant and his co-accused as H forging bandits who embarked on a series of armed robberies, and who ended up by staging a sexual assault on one woman at Ubungo.  It seems to us that the case for the prosecution was mainly based on their identification by two witnesses and on the discovery of three pistols in the rooms they were occupying in a guest house called Mkwajuni. I
Three witnesses gave evidence on the side of the prosecution

MAPIGANO AG JJA, MFALILA AG JJA AND OMAR JA
in relation to the robbery charges.  The first was Nuru Ali Mohamed (PW 1).  He was a A taxi driver.  His vehicle was a Toyota Corolla bearing registration number MS 9109.  He was driving the car along Azikiwe Street at about 8 p.m when two strangers hailed him.  He stopped the car and at the instance of the two passengers he drove the car towards Upanga Sports Club.  On the way at the point of a pistol one of his passengers B relieved him on the steering wheel; his wrist watch and his money.  The car was driven to Tabata where he was dropped.  The witness then went to the Central Police Station to make a report.  On the following day he found his wrist watch, exhibit P1, came into C the custody of the police.  This incident was the subject - matter of one of the two robbery counts of which the appellant was convicted, and it may be pointed out that throughout PW 1 did not even pretend to have identified his robbers.
The second witness was Basil Suprapesan (PW 2).  He was relieved of his Peugeot D Car, cash and a gold chain by three bandits who menacingly levelled pistols at him.  He was then driving the car along Mataka Street at about 11.20 pm.  The three bandits came driving a taxi bearing registration number MS 9109.  They overtook him and stopped the taxi in front, thereby blocking him.  One of the bandits climbed into his car E and drove off.  The other two climbed into the taxi and followed.  He said the place was lit and he identified the appellant as one of the three bandits.  At first he said he identified all the three bandits at a parade on the next day.  Later he said that the parade in question took place a few days after the incident.  Now this incident formed the subject-matter of the other robbery count in respect of which a conviction was also recorded. F
The other witness was Saiduu Nassoro (P.W.5), the woman who said she was raped at Ubungo.  She had a boyfriend, a diplomat, whose name she did not disclose.  The two had gone to a cine-theatre for relaxation in that evening and then to the Oysterbay Hotel G for dinner.  They had then left the hotel and driven to the residence of the diplomat at Mawenya Road in Upanga. Three bandits pounced upon them at the gate. According to her, the bandits came there in a taxi and two of them climbed down, pistol drawn. The bandits despoiled the diplomat of all the money he had and then literally abducted her H and took her to the still of a forest at Ubungo where they raped her in turn.  She alleged that she identified the appellant to be one of the three bandits.  She said she had observed him at a lit trench where the taxi overtook another car.  She added that she subsequently picked him out at an identification parade that was conducted by the police I in same night.

MAPIGANO AG JJA, MFALILA AG JJA AND OMAR JA
The appellant was apprehended in the same night.  Likewise his co-accused persons. A They were found at Mkwajuni Guest House. Each was occupying a room and in each room was a pistol. According to SP Jeremiah Kilingo (P.W.3), he found the pistol exhibit P.3 lying under a pillow loaded with two bullets.  This evidence was not in dispute. B
The defence of the appellant and the co-accused were similar.  Both were residing at Mwananyamala in the city.  They said nothing about the allegations of robberies and rape that were levelled against them.  They said nothing about the pistols that were found C in the rooms they were sleeping.  Their evidence was virtually confined to their arrest at the guest house, the torture they underwent at the hands of the police, and their subsequent detention.
The trial magistrate accepted the evidence of P.W.1 Nuru and P.W.2 Basil, and relying on the identification of the appellant by P.W. 2 he found that the appellant was one of D the bandits who robbed the two witnesses.  He also accepted the evidence of P.W.5 Saiduu and her identification of the appellant and accordingly found that the appellant was one of the bandits who raped her.  Next he found that the appellant and the two co-accused were found each possessed a pistol, and in the absence of any explanation E as to how they came by the firearms he concluded that their possession of the weapon was illegal.
As we have shown, the decision of the trial magistrate in regard to the rape charge was upset by the High Court.  Citing three decisions, the judge held that the trial magistrate F had erred in that he had not directed himself to the requirement of corroboration in sexual offences and in that he had not warned himself of the dangers of acting on the uncorroborated testimony of the complainant.  We wish to make a short observation about this particular matter.
We agree that it is the rule that in any sexual offence, if the person against whom the G offence is alleged to have been committed be an adult, the court should warn itself that it is not safe to convict on the uncorroborated evidence of the complainant but that if it is satisfied of the truth of the complainant's evidence, it may, after paying attention to the H warning, nevertheless convict.  We understand that the wisdom underlying this rule came from the 17th Century English jurist Sir Matthew Hale, who wrote:  "rape is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused.."  There has been a change of attitude in some quarters and the point has I been made that the protection constructed around a rape accused by Western

MAPIGANO AG JJA, MFALILA AG JJA AND OMAR JA
jurisdictions are the envy of a murder accused.  But we would not really like to go into A the matter at any great length.  We may conclude by only saying that it may now be desirable to relook into the whole question of corroboration as it relates to sexual offences.
We turn to the grounds set forth in the memorandum of appeal.  The first two grounds are directed at the finding of the two courts below in regard to the identification of the B appellant by P.W. 2 Basil.  It was Mr. Lipiki's contention that the evidence of this witness was unsatisfactory, and we understood him to argue that if the learned judge has carefully scrutinized that evidence he would have reached the conclusion that the C identification was not really freed from error.  With regard to the identification of the appellant at the scene of crime i.e Mataka Street, Mr. Lipiki has pointed out that there was no evidence as to the source of the light that illuminated the place and as to its degree of brightness.  And with regard to the identification of the appellant at the parade, D the learned counsel has submitted that it was not established that the parade had been properly conducted i.e in terms of R. v Mango Manaa (1936) EACA 29.  He said he invited us to liken such parade proceeding to an accused's extra-judicial statement. According to him, the prosecusion is obliged to establish the propriety of the proceeding E in every case in which it wants the extra-judicial statement introduced into the evidence, the absence of any objection by the defence notwithstanding.  Mrs Malecela who appeared for the Republic before us disagreed.
The other two grounds of this appeal concern the possession of the pistols and the F arguments advanced by Mr. Lipiki in this court and in the High Court had two limbs.  In the first place Mr. Lipiki submitted that there was no solid and constraining evidence that the appellant was in possession of the pistols.  In the legal sense, he submitted, possession connotes knowledge on the part of the possessor.  The circumstances, he G further submitted, did not rule out the possibility of the pistols having been planted in the rooms or left there by other prsons who had had access to the room. Secondly, Mr. Lipiki argued that the charging of possession of three pistols in one count was a misjoinder, given the circumstances as presented by the prosecution.  Mrs. Malecela H would not subscribe to that view and she would not associate herself with Mr. Lipiki,s other contention that there was a miscarriage of justice, that is if there was actually a misjoinder.
Addressing ourselves to the question of identification we have to point out that this was I an issue of fact.  In our view we think that

MAPIGANO AG JJA, MFALILA AG JJA AND OMAR JA
the finding of the lower courts on this point was open to them and in principle we see no A good reason to disturb that finding.  Indeed, the appellant's possession of the pistol in that very night was, in our view, a circumstance that lent some support to the identification of the appellant by PW 2 Basil.  It has been suggested here that the pistols B that P.W. 2 saw were possibly toy-pistols.  Surely we cannot treat that argument with any seriousness, it is drawn too much on imagination.
We have been urged to equate an identification parade proceeding with an extra-judicial statement proceeding.  We have been invited to hold that the prosecution should have C led evidence to establish the propriety of the parade, regardless of the fact that there was no suggestion that it was improperly conducted.  We regret we cannot do so.
For one thing, an extra-judicial statement, if it contains an admission or a confession, is at D law substantive evidence. An extra-judicial parade proceeding is not substantive evidence, it is only admitted for collateral purposes, in the majority of cases it serves to corroborate the dock identification of an accused by the witness, in terms of section 166 of the Evidence Act, 1967.  For another, it is wrong to say that the prosecution is E obliged to prove the propriety of an extra-judicial statement in every case in which  the prosecution seeks to adduce it, even where the admission of the statement is not resisted.  The law does not say so and we have absolutely no desire to change it.
We turn to consider the question of possession.  Mr. Lipiki is perfectly right in saying F that possession connotes knowledge on the part of the possessor.  Common sense and justice require that it be so.  The words of Lord Parker in R. v Cavendish [1961] 1 W.L.R 1083 at p. 1085 bears repeating here:  for a person to be found to have had G possession, actual or constructive, of goods it must be proven either that he was aware of their presence and that he exercised some control over them, or that the goods came, albeit in his absence, at his invitation and arrangement.  But it is also true that mere possession sometimes denotes knowledge and control.  The example par excellence is H where, in a case of robbery with firearm violence.  The robber is caught at the scene  wielding the weapon.  His wielding of the weapon would inevitably imply knowledge and control on his part.  Each case must be decided on its own set of circumstances.
In the instant case the appellant was found in a room in a guest house.  He was alone I and the pistol was found lying underneath

the pillow.  He owed the court a plausible explanation as to how the weapon came to be A there.  There was none that came from him.  In the circumstances we are satisfied that the court was entitled to find that he was in possession of the pistol and we think that his advocate's suggestion in the High Court and before us that the pistol might have been put into the room by some one else is far-fetched. B
Finally, we come to the question of mis-joinder.  Standing alone, the charge of unlawful possession is, on the face of it, quite perfect, and for a person who did not know the evidence that the Republic had assembled against the accused persons, when the accused were first brought to the court to answer the charge, it was, at the conclusion of C the evidence of the prosecution, rather a case of the evidence not fully supporting the charge.  We agree that it was wrong to charge the appellant with possession of the other two pistols that were found with the other two accused in the other rooms.  In view of the evidence that was adduced we think that there should  have been three separate D counts of unlawful possession in this case.  That was a procedural error and we are satisfied that the error did not occasion a failure of justice.  We set it right by convicting the appellant of unlawful possession of only one pistol namely exhibit P.3, and with that we dismiss the appeal. E
Appeal dismissed.

F