Masimba and Another v. R. Crim. App. 171-D-70; 25/11/70; Onyiuke J.

Masimba and Another v. R. Crim. App. 171-D-70; 25/11/70; Onyiuke J.

The appellants were convicted of Cattle Theft c/s 265 and 268 of the Penal Code. There wee sharp contradictions between the evidence of the complainant and two of the prosecution witnesses with respect to the identification of the cattle in question. The Magistrate’s judgment even suggested that the complainant may well have fabricated some of his evidence. The Magistrate’s judgment also contained the statements: “They (the accused) say they were helping Pius and Laurent who were in legal possession of (the cattle). There is no independent witness to confirm that the accused were merely helping. The only available evidence is that of (two other accused persons) that accomplices were. Such evidence cannot be accepted unless it is corroborated by independent evidence.”

Held: (1)”It was the duty of the prosecution to establish the identity of the cattle by cogent evidence before the accused could be put on their defence to explain their possession of them” (2) “The rule as to corroboration applies to the prosecution and not to the defence. It is wrong to reject a defence merely because it is not corroborated by independent witness.” (3) Appeal allowed.