FANUEL JOSEPH MBEDULE v REPUBLIC 1989 TLR 221 (CA)

 FANUEL JOSEPH MBEDULE v REPUBLIC 1989 TLR 221 (CA)

Court Court of Appeal of Tanzania- Mbeya

Judge Makame JJA, Omar JJA, and Mnzavas JJA

22 November, 1989 G

Flynote

Evidence - Accomplice evidence - Whether corroboration is always necessary for a

conviction.

-Headnote

On 15/4/88, a refrigerator was stolen from Loleza Secondary School. After police H

investigations the fridge was recovered in the house of Yahya Mazanda (PW.7). The

appellant, who was believed to have stolen the fridge, was charged with the offence

of stealing by public servant contrary to section 265 and 270 of the Penal Code. In his

evidence Yahya (PW.7) said the fridge was sold to him by Mogan (PW.6). Mogan said

I he bought the fridge from George (PW.5) who

1989 TLR p222

MAKAME JJA, OMAR JJA AND MNZAVAS JJA

got it from the appellant. In his defence, the appellant denied having stolen the fridge

and A selling it to George (PW.5). The trial court found PW.5 and PW.6 to be

truthful witnesses and found it as a fact that it was the appellant who sold the fridge

to PW.5 having stolen it from a laboratory store at Loleza Secondary School. He was

convicted B and sentenced to five years imprisonment. His appeal to the High Court

was dismissed. He appealed further to the Court of Appeal. His advocate challenged

the decisions of the two lower courts on one main ground: that the courts convicted

the appellant on the strength of uncorroborated evidence of PW.5 and PW.6 who

were accomplices. C

Held: (i) The evidence of Range Ally (PW.4) sufficiently corroborated the evidence of

George Ngela (PW.5) and Mogan Mwakapuji (PW.6) who were accomplices; D

(ii) under section 142 of the Tanzania Evidence Act a conviction is not illegal

merely because it proceeds upon the uncorroborated testimony of an accomplice.

Case Information

Appeal dismissed. E

Bateyunga, for the appellant

Kapinga, State Attorney, for the republic

[zJDz]Judgment

Makame, Omar and Mnzavas, JJ.A.: The appellant, Fanuel Joseph Mbedule, was, F in

Mbeya District Court 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 years imprisonment. He was aggrieved by the finding and sentence of

the trial court and appealed to the High Court.

The High Court (Mroso, J.) after evaluating the evidence came to the conclusion that

the G appeal had no merit and dismissed it in its entirety.

Still dissatisfied the appellant has appealed to this court.

Mr. Bateyunga, learned counsel for the appellant, argued before us that the first

appellate court erred in finding that the evidence of George Ngela (PW.5) and Mogan

H Mwakapuji, (PW.6), who were accomplices was corroborated by the testimony of

Amosi Mwangalila (PW.8). It was the learned counsel's submission that Amosi

Mwangalila was himself an accomplice who could not corroborate the evidence of

other I accomplices.

1989 TLR p223

MAKAME JJA, OMAR JJA AND MNZAVAS JJA

Mr. Bateyunga also submitted that the evidence that a key which opened the

laboratory A store from which a refrigerator was stolen was found in appellant's

room was of no consequence as, it was argued, there was evidence that other workers

in the school possessed keys which opened the store. It was finally the learned

counsel's argument that it was quite possible that the key found in appellant's room

had been planted there. B

Mr. Kapinga, learned State Attorney supported the conviction on the ground that the

learned judge and the trial magistrate found that there was corroboration of the

testimony of PW.5 and PW.6 by the evidence of Amosi, PW.8. The learned counsel

also argued C that even if PW.8 was himself an accomplice the trial court believed

him to be a credible witness and that as such his evidence did not need corroboration

in view of the provisions of section 142 of the Evidence Act.

The facts in this case were simple and straight forward. On 15/4/88 a refrigerator was

D stolen from Loleza Secondary School. The matter was reported to the police and a

week later wheels of investigation led to the house of Yahya Mzanda, (PW.7), in

which a fridge was found. The fridge was later identified as the very one stolen from

Loleza Secondary School. In his evidence Yahya, (PW.7), testified that the fridge was

sold to E him by Mogan Mwakapuji (PW.6).

Mogan admitted in his evidence to have sold the fridge to Yahya. He also testified

that the fridge was initially sold to his friend George Ngela, (PW.5), by the appellant

and that F he helped his friend in carrying the fridge from Loleza Secondary School

premises to George Ngela's kiosk. It was after the fridge was found to be unsuitable

for George's kiosk that a decision was taken to sell it to Yahya.

In his defence the appellant totally denied having sold a fridge to George Ngela leave

G alone stealing one from Loleza Secondary School.

The trial court found PW.5 and PW.6 to be truthful witnesses and found it as a fact

that it was the appellant who sold the fridge to PW.5 having stolen it from a

laboratory store H at Loleza Secondary School. This being a second appeal this court

is not concerned with the trial court's finding of fact. We are only concerned with the

arguments by the defence that PW.5 and PW.6 were accomplices whose evidence

needed corroboration and that the courts below erred in acting on their evidence to

the detriment of the appellant. I

With respect to the learned defence counsel we are also of the

1989 TLR p224

MAKAME JJA, OMAR JJA AND MNZAVAS JJA

view that PW.5 and PW.6 were accomplices whose evidence needed corroboration as

A a matter of practice before being acted upon to the detriment of the appellant. But

with even greater respect to the learned defence counsel we are also satisfied that

there was sufficient corroboration evidence in support of the testimony of PW.5 and

PW.6 B that it was the appellant who sold the stolen fridge to George (PW.5). This

corroborative evidence is found in the testimony of Kange Ally, (PW.4), which was to

the effect that the appellant had told him that he was selling a fridge and asked him to

tell the owner of the kiosk, (PW.5), about it. Apparently Kange, (PW.4) was at the

material C time selling soda in PW.5's kiosk. Later Kange told PW.5 what the

appellant had told him. It is therefore amply clear that the only role played by Kange

was that of reporting to PW.5 what the appellant had told him. That being the

position Kange cannot, by any stretch of the imagination, be traded as an accomplice

whose evidence needed corroboration. D

As it was held in the case of R. v Medcraft (23 Cr. Appl. R. 166) "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 followed by the Court of Appeal for Eastern Africa in

Rex v Gongolo s/o E Ibalwe [1937] E.A.C.A. 66.

Even if, for the sake of argument, there was no corroborative evidence of the

testimony of PW.5 and PW.6 who were clearly accomplices section 142 of the

Evidence Act says and we quote:

An accomplice shall be a competent witness against an accused person; and a

conviction is F not illegal merely because it proceeds upon the uncorroborated

testimony of an accomplice.

The upshot of this is that the trial court which apparently accepted the testimony of

G PW.5 and PW.6 as credible would have been fully justified under section 142 of

the Evidence Act to convict the appellant of the offence charged even if there was no

corroborative evidence in support of their testimony.

Apart from the evidence of PW.4 there was also the testimony of the watchman, H

(PW.8), and that of the Headmistress, (PW.3), which tended to implicate the

appellant with the offence.

We are therefore of the opinion that the concurrent findings of the lower courts was

the only reasonable finding to which they could come and we accordingly dismiss

this second appeal in its entirety. I

Order accordingly

1989 TLR p225

A