19891122 TZCA Mbeya

., IN THE COURT .'OF .AP~EAL OF T.ANZ.ANIA

AT MBEYA --·· ----"" (QQ.~: ~\KA1'1E 1 ,J.~.4_._,___QMA;R,..t. J .4. 1, AndJ,1HZAVAS 2 J .A.J ClID.'iil-T...".J., .APPEAL NO. 72 OF 1989 FANDEL jO:JEPH mBEDULE • • • APPELLANT

VERSUS THE l1EPUBLI C. • • • • • • • • • '•· • RESFONDEIIJfl1 ( Appeal from the Judgement of the High . Court of Tanzania at ~beya ( I11ro ~o ;_.:r_J_ dated the ·14th da;r of April, 1989 · in -------·-- 4-~---··------. ....

JUWEMENT OF THE COURT The appellant 1 Fa:nuel Joseph Mbedule, · ~as, in Mbeya District Courl Criminal case No. 145 of 1988, charged with and convicted of stealing by public servant contrary to sections 265 and 270 of the Penal Code and ·sentenced to 5 yec:.rs imprisonment. I:Ie:_was aggri~ved by the finding and sentence of th~ trial court and appealed to the ·Hi.gh Court. The High Court (Nroso, J.) after evaluating the evidence came to the conclusion that the appec.JJ. had no merit' and disrriiGsed it in its entiret;y. still dissa:'cisfied the appell&,t has appealed to· this Court. Mr~ Bateyun6 a, learned counsel for 1the appellant t argued before us that the first appellate court -erred in finding that the evidence of George Ngela (P •~v~5) and Hogan Mwakapuji 1 (P ,\,1 .6), who were accomplices was corroborated by the testimony of Amosi Mwangalila (P.W,.8). It was the learned_ counsel f s subnission that Amosi I-'llvangalila 'licJ,S himself -· 2 ! an accomplice who could not corroborate the evidence of other aocomplices. ' Mr. Bateyunga also submitted that the evidence that a key which ) I , I i opened the laboratory store from which a ·.refrigerator 1-ras stolen was I r • found in appellam; 1 s room was of no consequence as, it was argued., t '' I there was evidence t:1at other workers· in the school possessed keys f. I which opened the store. It was finally the learned

counsel ts argument that it uas cruite possible that the key fou..1.d in ·appellant I s .room had been planted there so as to cause him his undoing. Nr. Ka:pinga, learned state. Attorney surported the conviction . on the gr01.n1d ·that tlre learned· Judge and the trial magistrate found that tllere was corrobcrt:tian of the testibon;y· of P,lv,5 and P.H.6 cy the ev_idence of .Amosi 1 p·.1-!,.8. The lear;.1ed counsel also argued that even if P,.W,8 was himself an accomplice the tric,l court believed him to be a credible witness and th~t as such his evidence did not need corroboration in view of the provisions of sectioi1 142 of the Evidence Act. The facts in this case were sir;1pl0 ancl straight forward. On 15/4/88 a refrigerator wa.s Gtolen from Loleza Secondary ' School. . The matter was reported to the police nnd a ,11eek later wheels of investigation led to the house of Ya...'1ya Mzand.a, (P.w.7), in which a fricl.e;e was found. The fridge was later identified as the very one stolen from Loleza Secondary School. In his evidence Yabya, (P.W.7), testified that the fridee was sold to hitn by Mogan Mwakapuji (F.'.-i.6). Mogan admitted in his evidence to have sold the fridge -t;o Yahya. He also -testified that the fridge was ini tia],.ly sold .to -lus friend _George Ngela, (P.:·l.5), by.the appellant and that he helped his friend - 3 !' · in carrying the fridf;e from Loleza

Secondary School premises to George t. ' ' Ngela 1 s kiosk. n ..ras after the fridge was found to be unsuitable for i r ; ' George 1 s kiosk tlw;t a decision was taken to sell it to Yahya,.. r f • l In his defence tiie appellant totally denied having sold a fridge t• f I _George Ngela leave alone ste~inc one from Loleza fflconclary School. The trial court found P. W. 5 211d P. !'1.6 to be truthful witness and found it as a fact that H was the appellant who sold the fridge tl'.I P~W.5 having stolen it fr,JrJ a laboratory store at Loleza Secondary Schoo$• This being a second a;)peal this Court is not concerned with the trial court's finding of fact. We are only concerned with the arguments by the defence that P.W.5 and P.W~6 1;ere accomplices whose evidence needed corroboration and that the courts below erred in acting 011 their evj,48nce to the detriment of ·the appellant .. With respect to the learned defence counsel we are also of the view that P.W.5 and P,JJ.6 were accomplices ~,hose evidence needed corroboration_ as a matter of pr2,dice before being acted upon to the detriment of the appellant. · But with even greater respect to the lear.nr;d defence counsel we are also satisfied that there was sufficient corrobo.rative evid.el'.}Oe in support of the testimony of P.H.5 and P.W.6 that it _was the appellant who_ scild the stolen fridge t·o George, (P.H.5). This corroborative

evidence is found in the testimony of Kange Ally, (P.W.4), which 1,1as to the effect that the appellant had told him that he was selling a fridge and ask~d hitn to tell the owner of the kiosk, (P.W.5), about it. Apparently· Kange.1 (P~W.4), was a-ti the material time ••..... /4 4 ,' ,' F r selling soda in P.W,5 1 s kiosk. Later Ka1~e told,.P.H.5 Hhat the appellant ' had told him. It iG ·i;herefore Wi1ply cleo.x· that the only role playe_d by I J I Kange was that of reporliing tn P.W.5 1vhat the appellant ~lad told him, r. That being the posj_tion Knnge cc:.nnot 1 by ariy stretch of the imagi.na't~on, f I. I ,. be branded as an accomplic.e whose evidence .needed corrobora;l;ion. t As it was held in the case of R.v. _MedcE?ft.L23_~q_r.!._AJ2J2.l• R.. 16~ "evidence in corroboration of evidence of an accomplice need not be direct . evidence, it is sufficient if it is circumstantial evidence connecting the accused with the offence.,;,,. This decision was quoted and followeq. by the Court of Appeal For Eastern lli'rica in BEX v. GON'GOLO s/o _I:i?ALi~ Even if, for .,the sake of argument, there was no corroborative eyence of the testimony o:f i:-',W.5 and P.W.6 who were iclearly aoc~mplices. se!ttf 142 of the Evidence Act says and. we c,.ruot e: "An accom:i:ilice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the

"Lll'lc·orroborated · . testimoxw of an accomplice. rt, The upshot of tJ:i.is is that the trial court which apparently accepted t}w ' testimony of P.W,5 ro1d P.W.6 as credible would have bee;_1 fully just:i.fie~ under section 142 of the Evidence Act to convict the appellant of t~ offence charged even if there was no -corrobo.rative evidence in suppr,rl; of their testimo:ny. Apart from the evidence. of P.}l.4 there .,-Jas also the testimony of the watchmro1, (P.l1Jc8), and that o.f the Headmistress, .(P.W.3), which tended to implicate the appellant with the offence. #. I l l i ) _. 5 I We are therefore of the opinion that. the concurrent findings of the iI lower cci,rts .was t~10 o:1l;r re::,sonable finding to which t::1ey could come anq, I I ' I I' I ! L. H • MAK.AME A. I::i. A. OM.AR .

JUSTICE OF APPEAL 1T ~ s,. l'D.\JZAVAS .JUSTICB OF .APPEAL I certify that tlu.s ia a true copy of the original.