MKUBWA SAID OMAR v S.M.Z. 1992 TLR 365 (CA)

 

MKUBWA SAID OMAR v S.M.Z. 1992 TLR 365 (CA)

Court Court of Appeal of Tanzania - Zanzibar

Judge Nyalali CJ, Kisanga JJA, Ramadhani JJA

4 December, 1992

Flynote

Evidence - Corroboration - Evidence which needs to be corroborated cannot

corroborate. B

-Headnote

The appellant, with others, were charged with and convicted of the offence of

burglary and stealing. On first appeal the others were acquitted. Aggrieved, the

appellant C appealed further to the Court of Appeal of Tanzania. The main argument

put forward on appeal was that the first appellate court accepted the evidence of

P.W.4 which required close scrutiny before it could be acted upon to uphold the

conviction of the appellant. The D evidence of P.W.4 was used as corroborative

evidence to that of accomplices to found the conviction of the appellant.

Held: P.W.4 was a witness whose evidence needed corroboration before it could be

accepted and acted upon. Such evidence which requires corroboration could not itself

E corroborate accomplice evidence.

Case Information

Appeal allowed. F

Mbwezeleni, for the appellant.

[zJDz]Judgment

Kisanga, J.A., Nyalali, C.J. and Ramadhani J.A.: The appellant and three others were

jointly charged in the Regional Magistrate's Court Zanzibar with the offences of

burglary and stealing contrary to sections 267(1)(a), and 248(1) respectively of the G

Penal Decree. Two of them were acquitted but the appellant and one other were

convicted on both counts and were each sentenced to 4 years' imprisonment on each

count; the sentences to run concurrently. On first appeal the High Court (Hamid,

C.J.) H upheld the conviction and sentence of the appellant but allowed the appeal

of his co-appellant. The appellant is now appealing further to this Court.

The facts of the case may be summarized very briefly as follows: The complainant's

house was broken into at night and a video and a radio were stolen from there. Only a

few days I later the video was traced into the hands of one Haji Daudi Suleiman who

1992 TLR p366

KISANGA JA, NYALALI CJ, RAMADHANI JA

was made a co-accused at the trial; the radio was never traced. Haji's explanation was

A that the video was deposited with him by the appellant to secure a loan of Shs.

20,000/= he gave to the appellant. His defence was duly supported by the evidence of

Nuru Abdulla Khamis, his wife who testified for the prosecution as P.W.4. The

appellant denied sending anything to Haji, his co-accused, as claimed by Haji himself

and his B wife. As intimated before both courts below disbelieved the appellant's

story and found him guilty of the burglary of the complainant's house and of stealing

from there the video in question.

In this appeal the appellant was represented by the learned advocate Mr. H.A.S. C

Mbwezeleni who raised two grounds of appeal, namely, that the video in question

was not identified adequately and that the appellant's conviction was based on

accomplice evidence which was not sufficiently corroborated.

We have to state at once that there is merit in both grounds of complaint. The D

complainant (P.W.1) identified the video merely by pointing at it in the court room

and saying that it was his and that his wife also identified it. His wife (P.W.2) slightly

improved on this by stating that she identified the video because when it was stolen

the thief or E thieves left behind its cover and wires or cable. No attempt was made,

however, to show whether the cover which was left behind fitted this particular

video. Mr. Mbwezeleni submitted that the evidence of identification so far adduced

was not sufficient to distinguish the video in question from any other video. F

Indeed the investigation officer (P.W.5) testified that he recovered from the house of

the accused Haji video No. 8100233, but this does not establish that this is the very

video which was stolen from the complainant's house. The difficulty would have been

removed if the complainant and/or his wife were able to say that their video bore this

number, but G they did not. As things stand now, however, we agree with Mr.

Mbwezeleni that the evidence of the investigating officer (P.W.5) as to the number

found on the video seized by him is of little or no value in relation to this case. We

also agree that on the evidence H before the court the video in question was not

adequately identified as the one which was stolen from the burgled house of P.W.1

and P.W.2.

On the issue of corroboration, the learned Chief Justice properly directed himself by

saying that the evidence of Haji Daudi Suleiman, an accomplice, required

corroboration I when Haji said that the video in question was deposited with him by

the appellant

1992 TLR p367

KISANGA JA, NYALALI CJ, RAMADHANI JA

as a security for a loan. Mr. Mbwezeleni submitted, rightly in our view, that the

learned A Chief Justice, however, erred in finding that Haji's evidence was duly

corroborated. The Chief Justice found that the evidence of Haji was duly corroborated

by that of his own wife Nuru (P.W.4). He took the view that although P.W.4 was the

wife of the B accomplice Haji, he was satisfied that there was nothing wrong with

her evidence, it was all right and that he was entitled to accept and act on it. With

due respect, however, the learned Chief Justice erred here. Upon her own evidence,

P.W.4 is the one who received the video when it was brought to their house in the

absence of her husband. She kept it C and then handed it to her husband when the

latter returned home. On this score alone P.W.4 is clearly a person with an interest of

her own to serve. For, in the event her husband and the appellant are acquitted, she

would obviously be the next suspect. As such it would be in her interest to try to shift

the blame on others to save her own skin. D

In addition, P.W.4 is the wife of Haji, the accomplice. Given such relationship she

could be tempted to give false testimony in favour of her husband and against the

appellant. Her evidence, therefore, would require close scrutiny before it could be

accepted and be acted upon. The learned Chief Justice did not do this, he appears to

have accepted her E evidence on its face value.

The view we take is that for the reasons we have stated above, P.W.4 was a witness

whose evidence needed corroboration before it could be accepted and acted upon.

Such evidence which requires corroboration could not itself corroborate accomplice

evidence; F and that was another ground for saying that the appellant's conviction

was unsupportable.

In the result we allow the appeal, quash the conviction and set aside the sentence

with an order that the appellant be released from prison forthwith unless he is

otherwise lawfully held. G

The record shows that during the continuance of the trial the court ordered that the

video in question be handed to the complainant, Muhamed Mbarak Salum (P.W.1)

and his wife Zakia Saleh Ajmy (P.W.2) for safe keeping. Since the appellant has laid

no claim over the video, it is directed that the complainant and his wife shall

continue to keep and have H the video so long as nobody turns up and establishes

before a court of law that he has a better claim over the video than the complainant

and his wife have.

I Appeal allowed.

1992 TLR p368

A