Joseph Stephen Kivuma and 2 Others vs Republic (Criminal Appeal No. 83 of 1997) [1998] TZHC 2376 (24 April 1998)

i-..I: 1•ij13zy A (Ori:::inating from 1'.ilieya District Court at Jvlbeya in Crin-final Case No. 17 of 1996 Before: P.A. Lyimo i{esident i'-'.agistrate) 1., ,) O,Sl!;PH STEPHEN· IUVUNA ) JviASHA.KA. CHARLES 1 ·JII .:::or-., M'•'A' "'-I 11 ""B'.JA.) ,; ..J"-' H 1'1~ '?l .1.-~ l V'.i ) HWAHULI ZDiV1UND ) Versus G O O 0 APPELLANTS ..,, ... ,. ..... .,..., . ..,., _ ... _ .. -··· ..... . ..... __ .. .......,,.......,;.....,.....:----.. JUWMEJ.,rr . ....----,~. ,.........:,;. . .,,. 'l 1 he :i.;esident MagistrE.te 1 s Court of icibeya (P.A. Lyir.;o, HM) ,sentenced each ·/J of the three appellants, JOSEPH STEPHEN KIVUlAi MAdHAKA - v,iILSON MVJASH.AMBWA and CHARLES MWAtULI :SDViUND, to thirtr (30) years imprisor.u"!1ent consequent ·upon a joint conviction for Armed Hobbery, Gontra.r:y to ;5ecti°-.I?-.8 285 and 206 of the Penal Code. The conviction and sentence asgrieved the0; hence t.t1.is appeal which was preferred, and argued before 1i1e,' by their learned ·advocate, i";r. Mbise. 'I'he learned ,State Attorney iJho appeared before me, Mr .. ;v;ulokozi, decl_ined to support the conviction of the appellants. 1 l 1 he i·naterial facts of th~ case against the appellants were theseo l'omic 1v,itson Sirnbeye H✓ 3 .was the ovmer of D. ,notor: vehicle reg. lfo. TB 9802 make laridrove.r pick •Upo ' tit •was for hire, and it was stationed at, and operated ,,,. ;, ·.· ··),'•., ., ': . '··. ' ,,. :· ... . .. /, fi'om·: 'I:ihey;, · cntl-:-a,1: .. bus · stande Its ciriver was Boniface ;.;imbeve PW1 while its . ,i J ,,:. ~~. • • . • . . i .. ,; • ' ' ~ ... - . .J;, ... , tu.rnboy was Naza :8waga Pd2. appellants approached H/1 and '2: ✓ 2 and hired the vehicle to carry goods from . . . . 'Tu.kuyuo Acco:i:::.p.ing to HJ1 they a:::reed at 8. hi:re fee of shso35,000/= and an advance of shsa 15 ,000/== was paid. r;o receipt was produced. It was the first time for PW1 ax1d HJ2 to see t1e first and third appellants., On the way to Tukuyu they picked up four other persons. 'I'hey arrived at Ikuti village Tukuyu at 7 .45 pm. 'l'hey all alighted and spent quite some· fiie there. Huch later PW1 was told to drive them to a certain building piJJ1' coipliecl.. . II p~ked the vehicle close to that building. It was Luswisi himary Cooperative Union /2

-p- 2 .. building. Pvi/1 and PW2 remained in the vehicle while the rest alightedo As f' soon as they alighted the? fired two pistol shots in the air. '.!.'he two night watchmen there, Asheri Kalinga PW5 and .Ambeleson Yo tam P\16, took to their heels while raising an alarm. The persons broke into the todown and loaded goods into the vehicle hurriedlya Goods worth about shs .. 3 1 460 1 965/::.: were loaded. 'l'hen some villagers b'egah to e.rrive there in answer to, the alarm. They included the Union's clerk I fawson 11wakimyuke PW4, and the Union I s chairman, Chabora M}Jali Pi'/7. On seeing the many villagers appreaching the persons got into the vehicle and directed PW1 to·ctrive away fasto 'l'he villagers were surrounding the vehicle and throwing stones at it. They pursued the vebicle which after a short distance overturned at Ibungu upon PV-/1 failing to .control it. 'l'hey all, including P\111 and PW2, ran away and managed to disappear. In their bid to escape they dropped the pistol (Ext P4) which was picked by the villagers and one pistol shell (Ext P3)0 The vehicle was ransacked and partly destroyed by fire. Only a few of the stolen goods . .. were recovered. · The following day P.J1 arid PW2 reported the accident to P1v3. The appellants were arrested on 2.2.96. In their si'/orn defence at the·trial the appellants denied any complicity in the incidentG 'I'hey neither knew PW1 and PW2 nor hi:ced their vehicle. Hr. Mbise preferred four grounds of appeal, but I would in the circums- tances of this case dispose of the appeal by considering orlly the second ground, which was: 2. 'I1he learned trial Resident I-1agistrate erred in law on convictin 6 the appellants on the strength of the evidence of PW1 and FJ2 who were accomplicec without material corroboration •. I would r.espectfully agree-with both learned counsels that the conviction ·•· of the three appllant.s was founded upon uiisufficient evidence •. 'l 1 he entire prosecution case against the appellants rested upon the evidence of P';J1 and PW2 who were, in the circumstances of this case, clearly accomplices. They had a.., opportunity to escape which they did not utilise. './he circumstances at the go down at that late hour ( 1.00 fa}i) were clearly indi<:ative to thGm all ODOOODOOOO:ioo•ooooo /3 ,,

.... · ~f . as not well. 'l''i.1ere w2...s the srunfire, th·e flight of the two, watchmen vihilst rais.ing an alarm, and the approaching angry villagers. 1 .rhey claimed to have ' l remained in the vehicle all alone, yet they did not even·attempt to drive away in the event, as they claimed, they were all that innocent. And more 1 they did not even deem it fit to report the incident including the accident at • • ,,i • Tu~~yu police station notwithstan.clir:g the fact that at that' 'time it was very clear to them that the persons they carried in the vehicle were violent thieves who had c01rnnitted. an armed robbery. An accomplice is a person who has to a larger or lesser degree participated in a crime a...YJ.d his evidence is suspect. I.t is a general rule of practice founded upon prudence t.ha.t it is unsafe to coriv:tct an accused upon the evidence of a.n accomplice without corroboration. Corroboration is independent evidence connecting the acc:nsed in material particular with the offence charged. The It is only in exceptional circumstances or cases that a departure from the general rule of practice is justified •. ·while .stressing the need for corrobo- .· .1- • . ·_,. ' . : . ,, .. • ;;zuthough i.t is not a rule of law, but only one of practice that the ev;i.d.ence of an accomplice requires corroboration, it is a very salutary rule, and it is only in rare cases that a court will convi_ct on such uncorroborated evidence:; c The criterion as to whether such exceptional case has arisen is the credibility of the accomplice or accomplices combined with the weight to be attributed to the facts to which they testify. 'D:ie principal factors to be considered w,en assessing their credi'oility is not only their de,i1eanour and quality as witnesses but also their relation to the offence charged and the .part which they played in connection therewith, that is to say, the degree ' of ,their criminal complicity, in law and in fact. The manner in which trial courts should handle or go about accomplice evidence was authoritatively (1972) E.A. 10 as follows: 00000000000000000000000

··An accomplice has to a larger or lesser degree pruticipated. in the crime, and his evidence is suspect. If his evidence is disbelieved, that is the end of the 1.1acter. Indeed if the evidence of an independent witness is disbelieved, that would be the· end of the ni.atter tooo However, if tbe evidence of an accomplice is believed then further stages set i:no cotnt would then normally look for corroboration of the accomplice evidence. .Such corroboration would have to be A found in other independent evidence on Et material particular linking the accused v1ith the offer,ce. 1 l'he court would then decide whether the accomplice evidence supported by corrobo- ration is suf':ficient to custain a conviction. 1 l'hat of course woulci depend. OJ:t .the background and cij_cumstax1ces in each case. Cr.c there ,ma,Y be no .. corl"oborative. evidell,ce_,availableo. In_ sych ..n. _ e_y_ep_t_,, ;c;h_e_ .S.OJ-.r:.t. }.?l:..t.}1.y_e,.,.t.9-. dS i e._ wt;1.<=;,;t}:,_er.,_t !'.E:.j,e_c_t_ l}.~ . . cc_onU2l.s_e_ evide.n.ce_ o whether __ it is ,one, of_,thsse. exc_,e.rt.:ipnj:}. ·-~~~S~Yf:.--}Je- ~~l_C<;.0[!1J2.1Jc.E) __ ,_e__vi.9fP,C_e_J.:_fj . .S.°- .. R:?B.e.- -~~- r.e}..J.a.?}:.~ tl1,at the . cour-t '-'!._Ould,,_a_fter .. w_arnine;,, itself 'L be _ p_reparedto)Jase a convictioon>t,••' (et:iphasis mine) Corroborative evidence was totclly wanting in this caseo For although the f evidence of each of the two accomplices supJ,orted tha.t of the other, it is well established that where the evidence of a witness requires corrobcration, the evidence of another' witness which itself requires corroboration cannot constitute corroborationo In this case, the learned trial magistrate, as rightly pointed out by both lear1ed counsel, firstl_;r, fa.iled to direct himself that HJ1 and PW2 ·'··.r. were accomplices Eu,d, .s..e.s.()pdJ.Y., failed to wc-,rn himself about the danger of accepting, and acting on, their evidence without corroboration. rl'hese lapses were fatal in the circumstances of this case .. That accomplice evidence left much to be desired, and a proper analysis of the evidence a;,d the circumstances could not have earned this• case· the qualification of being an exceptional one in which the f1ccoG1plice of PW1 a11d PW2 could. be regarded as so cogent and reliable as to justify tr,e departure fro,n the general :rule of practice~ l ar(l, in consequence, satisfied that the 1::,1.1.ilt of the three appellants was not demonsh~a.ted beyond reasonable doubt and that their conviction cannot be sustained. /5

... 5 I accordingly allow the appeal, quash the conviction, set aside the sentence anrl the order for compensation made b:;ereunder, and hereby order the inllnediate release of the tbree appellants from prison unless otherwise la111fully heJ.d • . ..-:·· •' :',:;:f:i·;. ;>' <·•' ''./ .,j __ .... ,/ ,, ' f J f 'u)o ' 24 April 1998. B, P. l''iO?,Hl ,JUDGE For :A.)?pella.vits; tro Mbise, advocateo For Bepublic Hr. Mulokozi 1 S.A. I CER''.elFY T11Nr THIS IS A 'rRUB COPY OF 1 rlIS ORIGINAL. r·/ ;-~1Y----· DlUI'RIC'.l: Rt:GLSTRAR, •. ,._ . .,7 .. -~---- ...... •·•:-,f"' ,..,..,..... .... ~