SAIDI HATIBU v REPUBLIC 1984 TLR 280 (HC)

SAIDI HATIBU v REPUBLIC 1984 TLR 280 (HC)

Court High Court of Tanzania - Mtwara

Judge Samatta J

August 24, 1983

CRIMINAL APPEAL 66 OF 1980 H

Flynote

Evidence - Confessions - Plea of guilty of a co-accused implicating the other -

Whether a confession which can be taken into consideration against that other

person - S.33(1) Evidence Act,1967. I

1984 TLR p281

SAMATTA J

A Evidence - Identification - Appellant identified in a bush from a distance of about

one hundred yards - Whether safe to act on such evidence.

-Headnote

The appellant was convicted of cattle theft. The trial magistrate relied on two pieces

of evidence to convict B the appellant. He relied on a plea of guilty of a co-accused

which implicated the appellant and an identification evidence of a witness who said

that he saw the appellant and his co-accused in the bush from a distance of about one

hundred yards driving some head of cattle. The High Court considered C whether

or not the two pieces of evidence could support conviction.

Held: (i) A plea of guilty is a confession of fact and may be made use of as provided for

in s.33(1) of the Evidence Act, 1967 provided it is proved;

D (ii) the use of the word "proved" in s.33(1) of the Evidence Act would tend to

suggest that evidence must be adduced to establish that the plea was made;

(iii) in this case it was not permissible to invoke the provisions of s.33(1) of the

Evidence Act against E the appellant because the plea of guilty of the co-accused was

not proved;

(iv) it was unsafe for the trial magistrate to have accepted the identification

evidence because the distance was quite long and the fact that the man was in a bush.

Case Information

F Appeal allowed

No case referred to.

G L.K.N. Kaduri, for the Republic.

[zJDz]Judgment

Samatta, J.: This is an appeal from a decision of the Dstrict Court of Masasi district

whereby the appellant, SAIDI HATIBU, was convicted of cattle theft, contrary to

s.268 of the Penal Code, and was sentenced to a H term of five years' imprisonment.

The appellant was jointly charged with one Issa Abdallah, who was convicted upon

his own plea of guilty which was couched in the following terms: "It is true that I

stole 9 cows and 2 bulls [of] the value of shs.17,600/=. I was together with Saidi

Hatibu who is [the] second accused in this case". The trial of the appellant

commenced after Issa Abdallah had been sentenced. The I latter, however, was

1984 TLR p282

SAMATTA J

not called as a witness by the prosecution, and no evidence was adduced at the trial to

prove that, in his A plea of guilty, Issa Abdallah had implicated the appellant.

The evidence at the trial conclusively established, I think, that, on the night of March

2/3 1980, eleven head of cattle belonging to one Mr. Mauruge Alfani were stolen.

The only evidence given at the trial B touching upon the appellant was that of PW3,

Mr. Michael Hassani, who testified to the effect that, on the morning of March 3,

1989, while he was at his shamba, he saw the appellant and his co-accused in the bush

driving some head of cattle. The witness said that he saw the appellant at a distance

of about one C hundred yards. The learned trial magistrate accepted this evidence in

its entirety. In arriving at his decision he took into consideration the plea of guilty

which the appellant's co-accused had made. He rejected the appellant's testimony

which amounted to no more than a general denial of the charge laid at his door. D

Mr. Kaduri, counsel for the Republic, declined to support the learned trial

magistrate's decision. He conceded that the quality and quantity of the evidence in

the scale against the appellant did not warrant the conclusion the learned magistrate

arrived at. With respect, I approve this concession. Although Mr. E Michael

Hassani - according to his evidence - knew the appellant before March 3, 19890, it

was, in my opinion, unsafe for the learned trial magistrate to have accepted the

witness alleged identification of the appellant. According to the witness, he saw the

appellant at a distance of about one hundred yards. This F is quite a long distance,

and when the fact that the man was in a bush is also taken into consideration, I think

the possibility of error cannot safely be excluded. In reaching his impugned decision,

the learned magistrate, as already pointed out, also acted on the appellant's coaccused's

plea of guilty. With due respect to the learned magistrate, I think he erred

in law in doing so. But why am I of this view? This G question I will endeavour to

answer. It is perfectly correct to say that a plea of guilty is a confession of fact. The

rules of evidence regarding confessions are, therefore, applicable to it. Thus, for

example, it may H be made use of as provided for in s.33(1) of the Evidence Act,

1967, which I proceed to read:

When two or more persons are being tried jointly for the same offence, or for

different offences arising out of the same transaction, and a confession of the offence

or offences charged made by one of those persons affecting himself and I some other

1984 TLR p283

SAMATTA J

A of those persons is proved, the court may take that confession into

consideration against that other person.

It is elementary law, I think, that an arraignment does not form part of the trial. The

need for a trial arises B only if the accused has joined issue with the Republic or the

prosecutor (where the prosecution is a private one) by pleading not guilty. Where,

therefore, the accused pleads guilty and is convicted, as happened in the present case,

he cannot be said to be on trial. If the accused is not on trial, how can he possibly be

said to be jointly tried with his co-accused?

C It was note Evidence Act against the appellant.

It is tempting to part with the case there, but I think it proper to add one word. It is

doubtful that a plea of guilty made by the accused can be taken into consideration

against his co-accused without the same being D proved during the trial by the

testimony of a person who was present in court and who heard the plea being made.

The use of the word "proved" in s.33(1) of the Evidence Act would tend to suggest

that evidence must be adduced to establish that the plea was made. This would

appear to be so even if the magistrate who took down the pleas is the same who later

tried the co-accused. Of course the testimony E would rarely be necessary, because

ordinarily the prosecution would call the accused as their witness against his coaccused.

For reasons which are not apparent on the record of the case, the

prosecution did not call the appellant's co-accused as their witness. I hope it is not

because the prosecutor thought he F could not in law do so. If that was the reason, I

must hasten to point out that the belief was unfounded in law. It is a correct

proposition of law, of course, that an accused is not a competent prosecution witness;

the prosecution cannot call one co-accused to give evidence against another. But

once the proceedings G have been finalised, it is competent for the prosecution to

call the accused as their witness against the remaining accused person/s. There is no

objection in justice or reason to that being done, because the accused is then no

longer in the proceedings.

H It is not without respect that, for the reasons I have endeavoured to give, I am

unable to persuade myself to share the learned trial magistrate's opinion that the

appellant's alleged guilt was established beyond reasonable doubt.

I Appeal allowed.

1984 TLR p284

A