19780202 TZHC Dodoma

.. IN THE ,HIGH COURT OF TANZANIA A~ DODOMA APPELLATE JURISDICTION (DODOMA REGISTRY) CRil~INAL APFBAL NO. 183 OF 1977 YONA MAY~1HB/ill.A .••••• 0 • • • ·• • • • • • • ~ .• • • • • • • • • • Appellant versus THE REPU:BLIC .. . . .. . ..... .. . . . . . . .. . .. . . Respondent ~ JUDGMENT CHIPETA, J Th0 two appellants, Yona Makambara ( who w2,s the 6th accused at the trial), and Mazaliche Masine;a (who was the third accused at the trial) were jointly c 1:argcd with nine oth0rs of the offence of cattle theft c/ss 265 and 68 of the Penal Code. The two appellants nnd tho first 2,ccused were convicted as charged, while the rest WGre G,,Cq_u.itted. The ·appellai~ts and the first accus2d were each sent e:,ced to five years imprisonment. The appell8J'.1ts now 2.pp0al, and Jt:1:1.eir appeals have been consolidated. The prosecution's evidence was to the followin.g offedt: on 8th September, 1976, there w::!,s a livestock auction at Chilowa village, which is some tcm miles from Msa:nga village in which the o.ppellants and their co-accused were residing. Employe:es of the Tanzania Livestock ma.rketing Corporation, better lmmm by its acronym-'" TLMC, bought a number of cat·'.:le at the auction and entrustca them to their hcn.~dsme:r to take them to T.L.}1.C 1 s holding ground at Dodoma. At Ms£',.nga village, three of the cattle disappo8.red, and employees of T.L.M.C. reported the loss of the cattle to two ten- cell leaders of Msanea village. That saime evening, one MGtl::gati (PoW.2) went to the house of one Mnyampala (the 9th accused at the trial) where he found the said Mnyam:pnla and one Ln.bnn (the first accused). Pw.2· heard the two men talking about how to dispose of three head of cattle. In PW.2's presence, the two men agreed that they should dispose of the cattle by slaughtering them in the bush and then sh::ire the me2.t ~ a.nd that to fr1cilitate the disposal, they should invite many other people to take part in the exercise. Laban was assigned the duty of looking for such people. That evening PW.2 went with the two men and rn.any other people into the bush where they slaughtered the three animals and shared the meat. According to Plv. 2, the two appellants in thic.1 a:preai took part in the exercise. , ~ter the m:-mt had been disposed of, most of -the conspi~- rators, if I may use that term, dispersed leavjng behind Labnn, the 2nd appellant and PW.2. The three men decided to hide away the skins by burying them. So□ e four days later, a village meeti~g was held at which general develop□ ent program□ es of the village were discussed. _- • ..J . . . . r ...• /2 2 - At that meeting, one of the two ten-cell leaders of the vill·-;,ge to whom the loss of the T.L.M.C.'s cattle had been reported told the villagers of the loss of the cattle. It WA.S after th;1t meeting th.?l.t PW. 2 told the ten-cell leader about the cattle he and others had disposed of in the bush. This information later re:,,chod the we.rd secretn,ry of thA.t nren who detailed two militia men (PW. ,i and another) to investigate the matter. With the active nssistance of PW. 2., PW. 4 and his colleague went to the place where the skins had been buried and pl2nted themsalves in trees for PW.2 had informed them that the culprits would go to excavate the skins that night. 7. 30 p. m. Laban appeared Md started exco.vnting ftt a 1)out the skins. Just as he excav2.ted the second skin, PW .4 n.nd his colleague descended 0:,.1 him and caught him as it wGro, in flq..grante, 9 de lie to. When he W;.':,S asked as to whose propalty those skins were, Lnbnn merely lamented thnt his fri:end Mnngnti h~"..d betrayed him. The skins were subsequently identified to be ti·)ose of · .L.M.C. 's cattle. The two appellants and eight at.hors were 1.,.hcm. arrested. In the course of tho trial and aft0r he had given cvider•ce, P.W.2 was charged jointly with the rest. The appollan. ts and their co-accused persons t:/:,v-e various alibis and denied having stolen the ce.ttle or taken pr.rt in slaughtering them. The len-ned trial resident magistrate believed tho evidence of P. W. 2 in so f8.r as it reln ted to tl1e manner in r;rhich the - cattle were disposed of, and held th~:,t t}1e t1-rn nppell~nts and Laban vrnre the culprits.· He accordingly convicted them G.s charged. On the evidence, it is clear thnt the only evidence against the two appellGnts is that of PW.2 who, ns pointed out above, ended up as the 11th accused. In supporting the convictions, the learned st8..te attorney relied on the principles le.id dovm in the case of Wanj a Knn:y:oro Kamau v. Republic (1965) EoA. 501, and submitted thnt as PW.2's failure to report immediately was due to fe'.lr and so as to protect hi□self, his evidence should be believed. In Kn.mau's case (supra) the Court of Appeal for East Africa stated, at page 504: " •••••••• while a person who aids and abets the car.mission of a -crime or assists the guilty person to escape punishment is always an accomplice, a pe:c-son who merely o.cquisces in who.t is happenins; or who fails to report a crime is not normnll.y rui accomplice but that the weight to be given to such a person's evidence will vary according to the reason for the acqui.escence. If it was a:r:,parently bC!sed on approval of the crine, the evidence will be treated ns no better than that of an accou1plice. If it wns based on indifference, the evidence will be treated with conside- rable caution; b~~ if~~tgr example, it was the result of fear, there is no uci, n why the evidence should not be relied on. 11 Now the question is whether Mangati was an accor;1plice or one who merely D-cq:.-.. :: qeced in what was hnppenine; • -,_ . . . /3 v. - 3 - Mangnti took part in the clr-mdestine sl::rnghtGr of the· cattle and the subsequent disposal of -1;he me2.t 811d skins. .Worse still, he had advance knowledge that the cG.t":le were :in, 1lllla'Wful., possession of Lnb8.!l and JYinyampn1a. He knew of the pl:m to dispose of the cattle and went nhead to t 8-ke p:1rt in the· dis- posal of the animals.. Apart from that he took part in trying to destroy the lo.st evidence there was 3,gainst the culprits by assisting in burying the skins. A fortiori, it took him some four dnys before he reported the matter to the authorities. In o.11 the circumstances, therefore, Mangati aided and abated the commission of the crir.:1e and nctively assisted tJ_.r-, guilty to escnpe punishr.ient. He was, therefore, by dofinition, an accomplice. Now, what is the value of accomplice evidence? Section 142 of the Evidence Act, 1967, provides that Q conviction is not illegal merely becauce it proce0ds upon the uncor:robor·"'..tod test:i:.:.. mony of on ac.complice. In other wordsf a conviction c::ui, in law, be founded on the sole testimony of an accomplice. But it is now a settled principle of prnctice tJ. 1a t the evi- ~ ence of 211 accomplice cannot, except in exeeptionc.l circumstances, _ orm the basis of a conviction v.nlcss it is corrobor8.tec1 jn material particular~ that is, thcr e must be some inc..ependent testimony implicating or tending to implicate the accused with the commission of the alleged crime. Where the prosecution's case depends entirely on the uncorroborated evidence of on nncomplice, the court must w2.rn itself of the do.:ngor of basing a conviction on such evidence. The rationale of this rule ilif practice was reiterated by the Court of Ap:pe2.l for East Africa in the case of Mbrjaria v. Republic (1972) E. A. 10, in which the court st2.ted, at page 16: An accom.plice h:,.s to a larger or lesser degree pnrtici- 11 pnted in the crime, and his evidence is suspect. If his evidence is disbelievedt that is the end of the mntter. Indeed if the evidence of en independ0nt witness is disbelieved, thnt would be the end of the matter too. However if the evidence of an accornpihice is believed then further stP-,ges set in. A court would ther, nornc;,,11:y look for· corroborntion of the o.ccomplice ovidm~ce. Such c·orroboration would have to be f 01md in other indepondent e:7"idence on a material particul::r linking the accused w1 th the offcmce. The court would t)'.'.011 decide whether the accomplice evidence support'.)(l by co:;__~robor;,_,_tion is sufficient to sustCJ.in o. conviction. Th-:it of course will depend on tho bo,ckt;round nnd circunst2..ri.cc iD. each case. Or thq__re m2,y be no coyroborative evide:r:ce 3.Vail,.,,ble,. In such ru:i event the court will hr2.ve to decide ·i/:'..Gthcr to rej2_ct the accomplice evidence or whether -it is one of those exce tional cases wher~ the accom Jlice evidence is so co ent nnd reliable thD.t the cour i-ro uld ;:1ftcr warnin · itself be re FU'ed o br-i.so a conviction on· ft. However a court has to direc i s mind GJ/.ci::.':i_c·;.lly i:i:. vach of the above cnses. 11 (Emphasis added) In the instant c--,.se, the le:::-irnod resident mne;istrate does not appear to have addressed his mind to the f:1ct thn.t the evidence of Mn.ngati was th~t of an ncco □ plice. Consequently, he -~-/4 - 4 - omitted to direct himself on the law regarding ~ccomplice evidence: he never looked for corr olx> r2.ti17ie evidence, nor did he warn himself of tho danger of basing~ conviction on the uncorroborated testimony of accomplice evidence. It would appear 9 however, that the learned magistr.'.:1.te believed the evidence of PW 2 vis-a-vis the appellants ::.nd so held that the appellants were involved in the discreet dispoeo.Dof the cattle. In the saM.e breath, however 9 the lec-.rned magistrate appears to express sooe reservations t:;,bout f![angnti' s evidence as against the appellnnts. He s~ated: 11 I also accept his (Mangati' s) evidence t't:.'.-c he ho·~.rd the two accused (Laban and Mnyampala) on ways of dispos:i.r:E of tho said cattle in order to avoid trace. But when N2,n.a:~ti W.J.S e;skcd as to his position on (sic) the village, Mang~ti replied ho was a mere peasant. That alone makes one suspect his good motives in detecting the rest of tho 2.ccused parsons. 11 That being so, I ':l.l:l. not persuaded that it WR.s S;1,:fo to accept Mangati I s story thr-d; the appellants took part in disposing of the cattle. Even if Mrngati' s eviden~e were to be belic,red, I do Jt think that in the ctrcumstances this case w~s one of those ..:;Xceptionnl c-"..ses where the accomplice evidence is so cogent and reliable that it could forn the b.':'..sis of a conv:Lction in the absence of corrobor:itive evidence, ~ fortiori, without the court W'"',rning itself of tho dn.nger of bqsing a conviction on uncorroborated accomplice evidence. Now, wc:1.s thore any corroborative evid.enc e of M::mgati' s evidence vis-Q-vis tho appellrmts? I cnn find none. There was certainly ~orroborq.tivo evidence P..'q against Laban, but not ag-:i.inst flll.Y of the nppcllan ts. Mrngr-;ti' s evidence 2gninst the appellants was no more than a bo.re assertion that they wore nmong the people wha took part in disposing of the men.t. It is little wonder, -t.herefore, that the le~rned tri2l mngistr~te himself expressed res~rva- tions about tho credibility of Mangati in respect of the Test of the accusGd persons. In view of the lGnrned r:iagj_str::.t et s r:iisdirections f\nd non-directions, cmd his own reservations ~.s to tho witnecs' s evidence o.gainst tho appellP.nts, I am of the consi-lc.;-red oplhnion thnt it would not be safe to uphold the appolln.nts' convict~ons. On these e;rounds, and with respect to the lo·,_rncd st['..tG attorney, I allow both appo.?.ls·. Both convictions ,..,_re qu3shed.. and the sentences set QSide. The orders of corapensQtion in so far ns they relate to tho nppelln.nts are tlso sot , ~side. The appellants must be set a.t liberty forthwith unless otherwise lawfully detained. Delivered in open Court at Dodomn this 2nd day of Februqry, 1978 B.D. Chipeta JUDGE