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IN THE HIGH COURT OP TAIIZANIL AT I4T3EYA, CRL'IhiL APPJAL NO. 96 OF 1980 / ( ORIGINAL CRIlUAL CASN NO. 289 1979 OP TI-IC DIhilICT COURT OF Ifl3LY :IsTIlIcT AT 1TDLYA. DEFORE:N.H. IbICIaDI. — Dr URICT HAG. IBARIKIfl'IZ'JiU ......,. ..00..O..O.I1PPELLANT versus TIICREIICBLIC •OOOOO RESPONDENT: SAWiTTL, J., - The appellant, libaril:i l'imariy.j and one Ferdinand IThundubaro, nore jolotly chnred before the disi1ct court of Mbeya district with oobbw2v with viohmce; contrary- 4 s. 285 of the Penal Code, At thy conob:edon of the tridl' the appelbant was convicted as charged and :eui se:.:lc:Lcod to a dorm ofeifh -L yecs* imircisonment. His co—accused wac acuidted of the BII - 1Ll that the decision robbed Uri of justice, t1 o appellant has apca1ed pgainot the same before this court, There was no diseute whath ct.the tiI .erhe fac that or one night In 1 ZY ' 1979 one Banjuhe.e Mwatteo was rcbbed by a gang of cirnina1s of his watch, It was asserted by the prosecution that one 77 day in the followinO' month, nome .y, June 1979, the appellant sold the watch to one Zephania INita,.wc in turn cold it to the appellant's co—accused. Zephania deposed t1 it lie bought the watch (fro thp app?t for the sun of s as, 700,'= and -r d.It t a day 01 two later, for the same amount to Ferdinand Mtuadubaro,.. He alsb asserted that the first tran.sa- ction was witnessed byt come coo' etincluding Ferdinandi Ferdinand did not suoport him an this P ont.:nim wh he gave his unaworn statement, - -; and the prosecutor, for reasos 1rhich were not discioced to the court, did not call any of the other a1Lefed witnesses to gdve evidence. / S -2- .tnalysing the case against the appellant, the learned tral magistrate said, alia. it PHi L1.o., Teliania IlL taJ testified before this court that the watch in question was cold, to him by the second accued Tow the appellant7. Even though the second accused never challenged the veracity of thie piece of evidence why should Phil :ut all these imputations against him? . find there is no answer to it, and I am satiCfied to say that the said watch in question (sic) was sold to P111 by the second accuse." Having eressed these views, the learned trial magistrate was constrained to reject the appellantt s defence that he had not seen the watch in question before the trial comncnced lir Teemba, for the respondent republic, felt unablo to support the impugued. Tower court's decision. He conceded that both the quantum and quality of the evidence in the scale against the apuollant did ant warrant the conclusion that Zephania Mwita had obtained the watch from tho apre?lan. With resroot, I approve -thi8 onc dut why? This I will tell. Before embarking upon that tsh, howevoX, a ceo at "3ccsarr to bbserv& that I appreciste that the maxim testis urus the tisnt±lhis does no -forx: part of the geneaal law of this country, 4 t 10 e' g cuite lcCol for a court of jutico to base settled conclusions umon the te biro'y of a sargie witness, is one distinguished author ha put i "one credible itness ofeihs the - . testimony of a number of other w1tnessus of indifferent character." - The maxim is no more than a riae of radence. In the case now at the Bar the assertion by Zophonia 1wita to tho effect that he obtained the- watch from the appellant stoodunsuppored by the other witnesses. On that cicial noint, t erc2orc, the coe was one man's word against auother. It is perfectly correct to ca -s Ida,- that, auplying the definition of the term accmpiice given tr the house of Lords in.-Davios r -D,P,P LT954J' A,C. 3789 t19541 1 Lii E.R, 507 9 wnich was held, by the Coui 3 of Appeal for taotera Africa in Canihio Walwa V R (l55) E,AOC.A. 453 to apply in Tanganyi]:a, Zephania could not, upon the evidence on record, be regarded as an accoi:inlico in this case. Lun since the witness was found in possession of the stolen watch (assiai ng that the identity of it is not a matter for debate) after the same had been stolen, his testimony could not rightly be treated as that of a disinterested person. A court chould approach with some caution the evidence of a wit- ness who may have some purnose of his om tc serveg see Darthelomeo Daniel v R (1969) LI.0.D. n, 300. i1acre, as in the present oase s a witness was found in lo650scion of the article which the accused is alleged to have stolen, tile counr sooud bear an mind, in deciding how far (if at all) it is safe to act upon the witness' testimony, that the witness nay nac a ?oWrfUlUotiVe for ';estifying falsely and for implicating another nerson in the crime of, theft. In the case now wider consideration the learned trial magistrate uoe not appear to have paid any attention to this factor - Zeihania, according to his own anisoion, had been arrested and charged with the theft of the watch by the hour4s of justice. The charge, was, however, la:er witafrawn,, The wi * tness was, therefore , a person who could easily betei.pted to please the . police by putting the blame on somebody else?sishou1des. This factor also caUed for caution to b exercised in oproaciüi1g his evidence. The factor appears to ha.e eo.cped the lçurned trial magistratets attention, As ..alredy pointed out in his testimony Zphaiia Nwita asserted that he bout the watch (f:1 orli the anpellant) in the prcsence of some 41 people including the appdllntbs co—accused. MM our law an accused person is not a cot-motent witness fon tho prosecution the prosecution cannot call one coccuscd. +0 1TO oviconce against autiier. In tne nda present cese, torof e, L i efcctl1 uhierstE.ele wly the proecutor did not eddkce eviaeice frcn t e apncllamt's cccused But, as IA -