[1947] EACA 40

# COURT OF APPEAL FOR EASTERN AFRICA

#### Before NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and EDWARDS, C. J. (Uganda)

#### REX, Respondent (Original Prosecutor)

$\mathbf{v}$

## MULII BHANJI, Appellant (Original Accused)

### Criminal Appeal No. 122 of 1947

# (Appeal from decision of H. M. High Court of Tanganyika)

The appellant was convicted of selling sugar to one Ali Saidi at above the legal maximum price. It was objected by the defence that the Court had wrongly accepted the uncorroborated evidence of Ali Saidi and that as he was an accomplice his evidence must be corroborated.

Held (7-8-47).—To render a person an accomplice it was necessary to show he was guilty of the offence charged: in this case, selling at an excessive price. But Ali Saidi had only bought and was therefore not an accomplice.

**Budhdeo** for the appellant.

Holland, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—The appellant was convicted in the District Court of Rufiji in Tanganyika on three counts of selling price-regulated goods at a price exceeding the maximum price therefore contra Regulation 11 (1) Defence (Control of Prices) (Consolidation) Regulations, 1946. The particulars of offence showed that Count 1 referred to ten kilos of sugar on or about 4th November, 1946; Count 2 to ten kilos on or about 5th November, 1946; and Count 3 to five kilos on or about 6th November, 1946; all the sales being to one Ali Saidi.

On the evidence of Ali Saidi, the principal witness for the prosecution, it appeared that the charge had the three amounts in the wrong order. Ali Saidi saying that he got ten kilos the first day, ten kilos the second day and five kilos the third day. The District Court apparently considered that the charge on each count being "on or about" the particular day the error in the charge as to the order in which the three amounts were taken was immaterial and found the prosecution case proved on all three counts. On appeal the High Court, without giving reasons for so discriminating, quashed the convictions and sentences on Counts 2 and 3, but upheld the conviction and sentence on Count 1. From the upholding of conviction and sentence on Count 1 the appellant now appeals to this Court.

It is clear from the record of the trial that the issue before the District Court was fundamentally a question of fact and relative credibility of witnesses, and, of course, such questions have no place in a second appeal such as this is. But questions of law are raised in the memorandum of appeal in this Court and with these we must deal.

The main complaint is that the District Court wrongly arrived at its decision upon the uncorroborated evidence of Ali Saidi and Salim Mpumbafu, both of whom it is argued were accomplices of the accused in the offence with which he was charged and whose evidence ought therefore not to have been accepted without corroboration.

The first question we consider is whether Ali Saidi was an accomplice within the meaning of the established rule that the evidence of accomplices requires corroboration. This rule has become so trite and hackneyed that the principles upon which it is based are apt to be forgotten.

The basic principle, of course, is that where a number of people are engaged in the commission of the same offence each of them will be familiar with all the details of the offence and will be able to give full and convincing, and indeed, true evidence as to the details of the offence, but lie easily to shift the guilt of the offence charged from himself to the accused.

The stating of that principle makes it clear that it can have no application whatever to Ali Saidi who is the one person in the world who could not possibly be actually guilty of the offences charged in these three counts for the very simple reason that the offences charged are sales at excessive prices to Ali Saidi.

The purchaser obviously could not possibly under any circumstances be actually guilty of selling at excessive prices to himself and he therefore could not be an accomplice, within the meaning of this rule, to the offence of selling to himself which is the only offence charged. To make a person an accomplice within this rule it is necessary to show that his activities in connexion with the offence charged amount to actual guilt of the offence.

We were somewhat vaguely referred to a case in which one of the London Magistrates had refused to convict a seller of selling at excessive prices on the uncorroborated evidence of the purchaser for the reason that the latter was an accomplice. The report of that decision is not available so we have no idea on what reasoning it was based, but no such proposition so far as we can find has ever been put before the Court of Criminal Appeal in England. The nearest case on this point decided by the Court of Criminal Appeal is Rex v. King, 10 C. A. R. 117. That was a case where a man had been convicted of living on the immoral earnings of a woman. He appealed to the Court of Criminal Appeal on the ground that his conviction was based on the uncorroborated evidence of the woman herself who, in the nature of things, obviously must have been an accomplice and an aider and abettor in the offence with which the appellant was charged, she having made the immoral earnings and handed them over to the appellant. For the Crown it was argued in the Appeal Court, and upheld, that "accomplice" in this connexion must be accomplice "in the offence with which the appellant was charged". The Appeal Court held that the woman's evidence was not that of an accomplice within the meaning of the rule as to the necessity for corroboration; that the Judge had a discretion as to directing the jury against accepting the evidence of a woman of that character, but that the woman's evidence did not require corroboration.

In buying the goods in the present case at the excessive price Ali Saidi was doubtless committing an offence, but it was a different offence from that charged in this case and that does not make him an accomplice in the offence charged in this case for the purpose of the rule as to corroboration. The fact that his evidence that the accused committed the offence charged implies a confession that he himself was guilty of another different offence under a different sub-regulation would seem to be a reason for accepting rather than rejecting his evidence.

In any event, on the facts of this case, Ali Saidi was not an "accomplice" as regards the excess price, he was a "victim". According to his evidence, which the Magistrate believed, he paid Sh. 25 to the appellant and left it to the appellant to give him as much sugar as he could for that amount of money. It was not until the final delivery that he could know, by working it out, what price per kilo he had been charged. It may well be, and indeed the Magistrate obviously thought, that the appellant was giving to Ali Saidi, and to the knowledge of Ali Saidi, a much larger quantity of sugar than the appellant's instructions from the District Commissioner allowed, but that was not the offence charged. The only relevance that fact has to this case is that it tends to make it humanly likely that the appellant would require some extra inducement over and above the controlled price to make him disobey his instructions and so risk losing his position as sole authorized distributor in Mohoro just to oblige Ali Saidi. The point about it all is that until the transaction was all over and delivery complete Ali Saidi did not have the knowledge that an excessive price had been paid. If and in so far as Ali Saidi then failed to report the excessive price he might possibly be regarded as an accessory *after* the fact, but, though he delayed, he did in fact report and got proceedings instituted against the appellant. We consider that in all these circumstances the Magistrate could rightly convict on the uncorroborated evidence of Ali Saidi if he believed it, which he has expressly stated he did.

But there was in fact corroboration of the story told by Ali Saidi, the corroboration by the witness Salim. Ali's story was that he went to the appellant's shop and bought a large quantity of sugar, taking delivery in three instalments The appellant denied the whole transaction and the District Court was faced with a clear and definite choice between the two stories. Ali was corroborated by Salim in all the main parts of his story of a sale and delivery by the appellant of a large quantity of sugar in instalments, subject to certain discrepancies which the District Court duly considered, and in the result Ali's story was believed. It is true that Salim did not know and could not corroborate as to the *price*, a most material element, of course, but it is not necessary even in the case of an accomplice that the corroboration should cover every part, even every material part, of the story. All that is necessary, even in the case of an accomplice, is that the story should be corroborated in some material part, connecting the accused with the offence. Here Salim corroborated Ali that there was a sale and delivery of sugar to Ali and that the sale was by the appellant to Ali in appellant's shop. Believing, as he well might on the evidence before him, that the sale and delivery of the large—an irregularly large—quantity of sugar did take place the Magistrate was quite justified in accepting the evidence of Ali as to the amount of sugar he got from the appellant for Sh. 25, and rejecting the appellant's evidence denying the whole thing. The learned Magistrate was entitled—as we are entitled—to look at the whole case, including the evidence for the defence, and looking at the evidence as a whole we see no reason whatever for holding that the learned Magistrate was wrong in the conclusion of fact at which he arrived. In this case even if Ali were to be regarded as an accomplice in the crime charged in the corroborative evidence of Salim amply satisfied the requirements as to corroboration.

We may say moreover that we do not agree with the appellant's advocate's contention and that Salim was an accomplice in the offence charged for the reason that he did not know the rate *per* kilo which the appellant actually received from Ali, although he probably knew that Ali was getting more sugar than the District Commissioner's instructions allowed—quite another matter.

For the reasons we find no substance in the complaint that the appellant was convicted on the uncorroborated evidence of his accomplices in the offence with which he was charged.

There is only one other point in the arguments for the appellant which calls for comment, namely, the refusal of the first Appellate Court to call fresh evidence in the case. It is well settled that an Appeal Court will call fresh evidence only in most exceptional circumstances. There are several reasons for that. One is obvious. If an Appeal Court calls fresh evidence on a matter in controversy in the Court below the Appeal Court finds itself in the most unsatisfactory position of having to weigh, the one against the other, recorded evidence of witnesses whom the Appeal Court has neither seen nor heard, and the oral evidence actually given before the Appeal Court. The affidavit filed in the first Appellate Court in support of the application to call further evidence is not included in the record of appeal, but we allowed appellant's advocate to put before us from the copy of the affidavit in his possession the grounds of the application as put before the first Appellate Court. It is enough to say that in these grounds we found nothing of the exceptional nature required to support such an application. No Appeal Court will grant an application to call fresh evidence on an affidavit merely stating that there is a witness who the deponent believes can give evidence that one of the witnesses at the trial gave perjured evidence on a material point. It seems to us that there was no more than that in the grounds upon which, according to the appellant's advocate, application was made to the first Appellate Court and that the application was rightly refused.

In his memorandum of appeal the appellant has included in his grounds of appeal "that under the circumstances of this case the sentence is too severe". This being a second appeal no appeal lies against severity of sentence.

For the reasons we have given we dismiss the appeal.