Court name
Court of Appeal of Tanzania

Tongeni Naata vs Republic () [1991] TZCA 6 (11 April 1991);

Law report citations
1991 TLR 54 (TZCA)
Media neutral citation
[1991] TZCA 6

Ramadhani, Omar and Mnzavas, JJ.A.: On 27/7/86 Hawa d/o Issa (P.W.1), carrying on her back a young D daughter, Mariam d/o Richard, the second deceased, was in the company of Bakari s/o Mrimi, the first deceased, going from Njoro Village to Matui village. On the way they came across Tongeni Naata, the appellant, who was proceeding in the same direction to the Boma of Sokoine. After a brief chat the four set out together in a file with E P.W.l being at the front, the first deceased in the middle and the appellant in the rear. They went like that from about 1.00 p.m. to 5.00 when suddenly P.W.1 heard the first deceased complaining. As P.W.l turned around she saw the first deceased speared in the back. F
The appellant chased P.W.l who was about five paces in front of where the first deceased had fallen down. The appellant struck P.Wl with the bush knife (sime) which he had and as she was falling down, the appellant grabbed the second deceased off the back of P.W.l and slashed - off the left breast of P.W.1 who then fell down G unconscious. She regained consciousness the following day early in the morning when she was found by some Masais going to fetch water from the river. P.W.l explained to them her ordeal and gave them a description of the appellant. She was taken to hospital where on 5/8/86 she identified the appellant from among a group of eight H Masai youths who were paraded past her bed one after another.
The appellant was accordingly convicted of both murders and was sentenced to suffer death. He now appeals to us.
The appellant was advocated for by Miss Bigeye, learned counsel, who had three grounds of appeal. First it was I argued that the identification parade was irregular and defective. Second, the

RAMADHANI, OMAR AND MNZAVAS JJA
A visual identification by P.W.l was said to have been not watertight and lastly that the appellant was not given and opportunity to object to any of the assessors.
As for the first ground Miss Begeye cited the case of Mwango Manaa v R. (1936) 3 E.A.C.A. 29 which laid out the procedure for the conduct of a proper identification parade.
B She argued that though that was a Kenyan case it had been followed with approval by the courts in Tanzania. The learned counsel pointed out three irregularities in the conduct of the parade. First, she recited what the appellant had said namely that he was first shown to P.W.l and then he was marched together with other seven C youths. Second, P.W.l said that she was told by A.S.P. Kilio Ramadhani Dege (P.W.4), who conducted the parade, to point out the person who had killed her daughter and cut out her breast. Miss Bigeyo said that the D address should not have been in that way. She said that P.W.l should have been told that among the eight youths she was going to see her assailant might or might not be presented and them P.W.l should have been left to see if there was a person she recognised. The third irregularity that was pointed out by Miss Bigeye was that the eight E youths were not all looking alike as P.W.4 admitted that some of them did not have their hair plaited. The effect of these irregularities, Miss Bigeyo submitted was to vitiate the proceedings.
As for the second grounds challenging the visual identification of the appellant by P.W.l, Miss Bigeyo said that F though P.W.1 had been with the Masai youth who attacked her for about 4 hours, she never really had a good look at him since they were walking in a file with herself being at the forefront and the youth at the rear. Then, miss Bigeye added, that at the time of the incident things happened so fast that P.W.1 did not have an opportunity to G look at the youth closely to be able to identify him later.
In the last ground of appeal Miss Bigeye submitted that it is not a rule of law that an accused person is given an opportunity to object to a assessor yet it is a rule of practice. The appellant at the trial was not given such an H opportunity and, Miss Bigeye submitted, that was fatal.
On behalf of the Republic/Respondent was Mono, Senior State Attorney. As for the first ground of appeal Mr. Mono submitted that the parade was properly conducted. He said that the only serious allegation was that P.W.l I had seen the appellant before the parade was conducted. However, he argued, that was what the appellant alleged. On the other had P.W.4 had given a concise account of

RAMADHANI, OMAR AND MNZAVAS JJA
what he did and that, Mr. Mono explained, was what actually happened. He further said that the identification A parade procedure is provided for in the Police General Orders (P.G.O). No. 231. Paragraph (q) thereof requires the officer conducting the parade to explain to the witnesses the purpose of the parade within the hearing of those on parade and then to invite the witness to point out by touching any persons he identifies. Mr. Mono B argued that in explaining the purpose of the parade the officer will have to go over what had happened to P.W.1 and that is exactly what Miss Bigeye complained against. Mr. Mono submitted then that no irregularity was done by P.W.4 in addressing P.W.1 in the way he had done. C
As for the visual identification of the appellant by P.W.1, Mr. Mono submitted that P.W.1 had all the reasons to remember the face of the appellant. Mr. Mono argued that the appellant had a chat with P.W.1 and the first deceased before they started their trip together and that the attack was in broad day light. Finally, Mr. Mono said D the parade itself was done only ten days after the incident when memory was still very fresh.
Mr. Mono conceded that it was a rule of practice to give an opportunity to an accused person to object to an assessor but argued that its omission was not fatal as it had not been shown that the omission occasioned any E injustice to the appellant.
We agree with Mr. Mono that the only serious allegation with respect to the identification parade was that of P.W.1 having had the sight of the appellant just before the parade. As for the other allegations they were not of F substance. We agree that here we have two versions of what happened: P.W.4 did not say that the appellant was shown to P.W.1 before the parade. Of course we are aware of the possibility that he would hardly have said so even if that had been the case. On the other hand, the appellant said that was what had been done. P.W. 4 was G not cross-examined on that just as the appellant too was not controverted. However the learned trial judge believed P.W.4 and we find no good reason to differ with her. But also, as we shall point out later, the identification parade was not the sole basis for the conviction. H
As for the other two points we agree that the requirements of P.G.O. No. 231 (q) would of necessity demand the conducting officer to say moreless what he had told P.W.1.
Secondly the persons on parade were required to look alike but not to be uniform as to their hair style. I

RAMADHANI, OMAR AND MNZAVAS JJA
A We again agree with Mr. Mono and the learned trial judge that P.W.1 had a very good view of the appellant to be able to identify him. After all the appellant was apprehended because of the description P.W.1 gave to the people who rescued her the following morning. Then her identification was corroborated by Monica Sokoine B (P.W.2) who saw the appellant at their boma that fateful evening and that he was the only stranger there on that day.
The appellant had raised the defence of alibi. Mr. Mono withdrew, and properly so, his objection to that defence C since the appellant had given notice of it as required by section 194 of the C.P.A. The appellant claimed that he had been busy the whole of the fateful day building his boma at Matui and that he never left for any where. But the appellant did not bring any evidence to support his claim. This deliberate lie goes to support his identification by P.W.1 as submitted by Mr. Mono.
D As for the last ground of appeal it was held in Ndiragu Nyagu v R. [1959] E.A.75 that it is a sound practice which has been followed and should be followed to given an opportunity to an accused to object to any assessor. That was followed by this Court in the appeal of Samwel Ndonya v R. Criminal Appeal No. 76/1988 E (unreported). However, we added that the result of such omission cannot be the same in each case.
In that appeal we held that the omission did not prejudice the defence and that the error was curable under Rule 108 of the Tanzania Court of Appeal Rules, 1979. Our reasons were that though the appellant was represented F at the trial the court was not reminded of the practice. Then there were no allegations of misconduct or impropriety of any assessor. That is the situation in this appeal. The only difference is that here the omission has been made a ground of appeal while in Samwel Ndonya v R. it was not and that it was merely an afterthought. G But in our well considered opinion merely making the omission a ground of appeal without showing how the appellant was prejudiced at the trial will not vitiate the proceedings.
Before we conclude we wish to comment on sentencing in a case like this where an accused person is convicted of H two counts of murder. The learned trial judge merely said: "The accused is sentenced to death by hanging".
In Agnes Doris Liundi v R. [1980] T.L.R. 47 at 50 this Court said that in such a case:
I Sentence of death should only have been passed on one count,

the convictions on the other two counts being allowed to remain in the record. We accordingly amend the sentence to refer A to the conviction on the first count only.
So the sentence should properly have read:
The accused is sentenced on the first count to suffer death by hanging. The conviction on the second count to remain on B record.
Apart from that the appeal is devoid of any merit and is dismissed in its entirety. C
Appeal dismissed.

D
________________