BUSHIRI AMIRI v REPUBLIC 1992 TLR 65 (HC)
Court High Court of Tanzania - Arusha
Judge Mroso J
April 28, 1992
Flynote
Evidence - Identification - Description of suspect - Significance. B
Evidence - Corroboration - Evidence of co-accused - To be treated as that of an
accomplice.
-Headnote
The appellant and another were prosecuted and convicted for cattle theft and
sentenced each to eight year imprisonment. The appellant alone appealed against
both C conviction and sentence. The two witnesses who testified against him had
not given a detailed description of the appellant before his arrest and before they had
a chance of seeing him. He also charged that his co-accused evidence was given much
weight in arriving at his conviction. D
Held: (i) The two witnesses ought to have given a detailed description of the appellant
to the persons to whom they first reported about the theft before they had a chance of
seeing the appellant after he was arrested; the description would be on say E
appearance, colour, height and on any peculiar mark of identity;
(ii) in every case in which there is a question as to the identity of the accused
the fact of there having been a description given and the terms of that description
given are matters of the highest importance of which evidence ought always to be
given; first of F all, of course, by the person or persons who gave the description and
purport to identify the accused, and then by the person or persons to whom the
description was given - Rex v Mohamed bin Allui (1942) 19 E.A.C.A. 72.
(iii) the evidence of a co-accused is on the same footing as that of an
accomplice, G that is it is admissible but must be treated with caution and, as a
matter of prudence, would require corroboration;
(iv) it would be unsafe to found a conviction of the appellant on the
uncorroborated evidence of the co-accused. H
Case Information
Appeal allowed.
Shayo (Junior), for the appellant
Mwaimu, for the respondent I
1992 TLR p66
MROSO J
Judgment
Mroso, J.: The appellant and another were prosecuted and convicted for cattle theft,
A contrary to section 268 and 265 of the Penal Code. They were each sentenced to
eight years imprisonment. The appellant, but not the other accused person, felt
aggrieved by the conviction and sentence and, therefore, has appealed to this court
through his advocates M/S Shayo, Jonathan and Company. Six grounds of appeal were
filed and B Mr. Shayo, Junior, learned advocate, argued the appeal before me.
The brief facts on which the District Court of Hai convicted the appellant are as
follows. At about noon on 27/12/89, at Bomang'ombe, two young men, P.W.1 - Ally
C Mohamed aged 16 years and P.W.4 - Twalili Abdi aged 14 years, were grazing
cattle 27 head of cattle and 7 goats in the pastures. Two people approached them, beat
them up, and stole all the animals which were being grazed. The two young men
were forced to accompany the cattle raiders but, later in the evening, they managed
to escape D from them. About three days later a village search party which included
P.W.6 - Mayaha Lesekoni, recovered all the stolen cattle from the boma of the first
accused (in the trial court) in Kiteto District. The first accused was also immediately
arrested after the cattle were recovered. The first accused named the appellant as a
co-participant E in the theft of the cattle. That led to the arrest of the appellant.
At the trial P.W.1 said that appellant was one of the cattle raiders, that he had put on
a militia uniform and held a shotgun. The same evidence was given by P.W.4. P.w.6
told the trial court that the first accused implicated the appellant. The first accused F
admitted in court when he was being cross-examined by the appellant that he had
indeed named him as a participant in the cattle theft. The appellant himself during his
defence said he had been a militia man and attempted to denial of the charge against
him. He merely said that his village, apparently Sanya Station, had been raided on the
G night of 26/12/89, which should be the night before the day for the cattle theft,
and that he was one of the persons who the village chairman had instructed to patrol
the village. He was arrested on 2/1/90.
The trial magistrate held that P.W.1 and P.W.4 had reliably identified the appellant
as H one of the cattle raiders because they had ample time to mark their appearance
unmistakenly. It is not however apparent from the judgment if the trial magistrate
made use of the claim by the first accused to the arresting party that the appellant
participated in the cattle theft. I
1992 TLR p67
MROSO J
In the first ground of appeal it was argued that the trial magistrate erred in law and in
A fact in not considering the defence evidence of the appellant. It is true the trial
magistrate did not comment on the evidence of the appellant in his defence, but I can
find nothing helpful to the appellant in his defence evidence. As I mentioned earlier
in this judgment, he made no attempt to expressly deny the charge of cattle theft
which was facing him. B
It was also argued that since the prosecution did not cross-examine the appellant on
what he said in his defence evidence, it must be taken that the defence evidence was
accepted as correct and true. With respect to the learned counsel for the appellant, C
was there anything worth cross-examining on? It seems to me that apart from
mentioning the date he was arrested, the appellant did not say anything during his
defence which was relevant to the charge against him.
He talked about being instructed by his village chairman during the night of 26/12/89.
D The cattle theft occurred at noon on 27/12/89. He said nothing about what he did
or where he was on 27/12/89.
In the third ground of appeal it was argued that the trial magistrate grossly erred in
not considering the issue of identification. The trial magistrate in fact appears to have
E considered the question of identification of the appellant and the first accused but,
certainly, not adequately.
I would agree that it was not enough for P.W.1 and P.W.4 to tell the trial court that
the appellant had put on a militia uniform and carried a shotgun, even though the
appellant F admitted in his evidence he had trained as a militiaman. There ought to
have been evidence that the two witnesses gave a detailed description of the appellant
to the persons to whom they first reported about the theft, before they had a chance
of seeing the appellant after he was arrested. The description would be on say
appearance, G colour, height and on any peculiar mark of identity.
The great significance of evidence of description of a suspect was underscored as long
ago as 1942 in the Court of Appeal for Eastern Africa judgment in Rex v Mohamed H
Bin Allui (1942) 19 E.A.C.A. 72 cited to me by Mr. Shayo, where the Court said:
This Court has previously pointed out, and we wish to repeat, that in every
case in which there is a question as to the identity of the accused, the fact of there
having been a I description given and the terms of that description are matters of the
1992 TLR p68
MROSO J
A highest importance of which evidence ought always to be given; first of all, of
course, by the person or persons who gave the description and purport to identify the
accused, and then by the person or persons to whom the description was given .......
B If the description is recorded at the time in an Occurrence Book, Diary or in
any other form of writing such book or writing should be put in evidence, if
admissible ...
In the case under discussion, the only evidence of description of the appellant was C
that he wore a militia uniform and carried a gun. That kind of evidence does not help
in identifying the appellant unmistakenly.
The third ground of appeal is not justified. It is complained that the trial magistrate D
grossly erred in believing that the first accused mentioned the second accused
(appellant) "without any evidence to that effect". I can see no reason why the trial
magistrate should not have believed that the first accused mentioned the appellant as
a participant in the cattle theft. The first accused admitted as much in court under E
cross-examination by the appellant, thus confirming the evidence of P.W.6. But as
said earlier in this judgment, there is no clear indication from the judgment that the
trial magistrate relied on that evidence of P.W.6 and the first accused in convicting
the appellant.
I think it is well accepted that the evidence of a co-accused is on the same footing as
F that of an accomplice, that it is admissible but must be treated with caution and, as
a matter of prudence, would require corroboration.
In Omari J. Kibanike and 40 others v R. Criminal Appeal No. 224/75 (DSM High G
Court Registry) the late Biron, J. said:
Where at a trial an accused opts to give evidence on oath and in such evidence
he incriminates a fellow accused, such evidence is admissible against the other,
though it cannot be treated otherwise than as evidence of an accomplice and
therefore requiring H corroboration in practice though not in law, vide section 142
of the Evidence Act, 1967.
Mapigano, J. echoed that view in - Ibrahim Daniel Shayo v R. Criminal Appeal No. I
10 of 1990 (DSM High Court Registry) unreported, where he said:
1992 TLR p69
MROSO J
A Where an accused person gives evidence on oath in a joint trial implicating
another accused (even if not a confession), whether or not he implicates himself, it
may be used against that other accused, because that evidence is on the same footing
as that of any other witness, though as a matter of prudence it must be approached
with caution. B
In the case under appeal before me, the first accused implicated the appellant by
saying under cross-examination from the appellant, that he had said they were
together when committing the cattle theft. The first accused did not, as suggested by
the trial C magistrate in his judgment, repudiate or retract or qualify the claim that
they committed the crime together. But should the court rely on the word of the first
accused alone to convict the appellant?
It is my judgment that it will be unsafe to found a conviction of the appellant on the
evidence of the first accused. There are two reasons for this view. First, because of D
the time honoured practice of the courts that the evidence of a co-accused, who is
treated as an accomplice, should require corroboration. Second, the first accused
when giving his evidence in chief did not implicate the appellant. He only did so
under cross-examination. This, to me, casts a shadow of doubt on the truthfulness of
his E claim and enhances the need for corroborative evidence. Because of the
weakness of the evidence of identification given by P.W.1 and P.w.4, I am unable to
consider it as good corroborative evidence. It follows that the trial court would not
have been on safe ground to convict the appellant on the basis of the evidence of the
first accused. F
Ground six of the petition of appeal criticized the judgment for wanting in legal
(judicial) reasoning. I would agree right away. After summarizing the evidence at
some length, the trial magistrate spent only 10 lines of the two page typed judgment
to explain why he G found the appellant guilty as charged. The only reason he found
the appellant guilty was that he was satisfied P.W.1 and P.W.4 upmistakenly
identified the appellant, because "they had ample time of marking their assailants".
But he never considered the shortcomings which I highlighted above such as their
failure to give a description of H the appellant before he was arrested or the failure
of the investigating officers to mount an identification parade. In fact the impression
one gets from the recorded evidence is that the appellant was arrested solely because
the first accused had named him. I
1992 TLR p70
Earlier in this judgment I said that the appellant had not made a clear denial of the A
offence. For that reason, the appellant had practically no defence for the offence
charged. But despite that weakness he could not be convicted on that basis for an
accused who had pleaded not guilty to a charge can only be convicted on the strength
B of the prosecution evidence against him and not because of his weak or worthless
defence.
In this appeal the learned State Attorney for the Respondent Republic did not seek to
support the conviction. I have come to the same view that it will not be safe to
uphold the conviction. It follows that I am allowing the appeal by quashing the
conviction and C setting aside the sentence which was imposed on him. He is to be
set free forthwith unless he is held for some other lawful cause.
Appeal allowed.
1992 TLR p70
D
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