PASCAL KITIGWA v REPUBLIC 1994 TLR 65 (CA)

 PASCAL KITIGWA v REPUBLIC 1994 TLR 65 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Ramadhani JJA, Mnzavas JJA and Lubuva JJA

CRIMINAL APPEAL NO. 161 OF 1991 B

15 December, 1993

(From the judgment of the High Court of Tanzania at Dar es Salaam, Masanche, J) C

Flynote

Evidence - Evidence of a co-accused - Whether evidence of a co-accused may form

the basis of conviction - Section 30 of the Evidence Act 1967.

Evidence - Accomplice's evidence - Whether court may convict on accomplice's

evidence without corroboration. D

Evidence - Corroboration - What may constitute corroborative evidence.

Criminal Practice and Procedure - Right of the accused to be defended by advocate -

Trial court ordered trial to proceed in the absence of defence advocate -

Consequences thereof. E

Criminal Practice and Procedure - Penal legislation - Retrospective application of

penal legislation - Sentence imposed came into operation after commission of the

offence - Whether proper.

-Headnote

The appellant, together with two others, were jointly charged and convicted of

robbery with violence F by the Ilala District Court, and sentenced to thirty years

imprisonment and corporal punishment. His appeal to the High Court was

unsuccessful. He appealed further to the Court of Appeal complaining that it was

unfair for the Trial Magistrate to proceed with the hearing of the case after the

defence G advocate had left, without giving the applicant an opportunity to get

another advocate. He also argued that it was wrong for the trial court to convict on

the evidence of a co-accused.

Held:

(i) The second accused in the trial court was an accomplice: a participant

to the crime H charged;

(ii) Evidence from a co-accused as in this case is accomplice's evidence and

a court may convict on accomplice's evidence without corroboration if it is convinced

that the evidence is true, and provided it warns itself of the dangers of convicting on

uncorroborated I accomplice's evidence;

(iii) Although the law does not say that conviction on uncorroborated

1994 TLR p66

A accomplice's evidence is illegal, it is still unsafe, as a matter of practice,

to uphold a conviction cased on the uncorroborated evidence of a co-accused;

(iv) Corroborative evidence may be circumstantial and may well come from

the words or conduct of the accused and, in this case, the appellant independently

corroborated the evidence of the co-accused;

B (v) The trial court was in error in not giving a last chance to the appellant

to get another advocate when attention was drawn to the fact that his advocate was

absent; but in the circumstances of this case the error did not prejudice the appellant

or occasion a failure of justice;

(vi) It was wrong to impose a sentence prescribed by a law which came into

operation after the C commission of the offence.

Case Information

Appeal against conviction dismissed; appeal against sentence allowed.

Cases referred to:

(1) R v Saidi Magombe [1946] EACA 1645.

D (2) Migezo Mbinga v Uganda [1967] EA 71.

(3) Laurent Joseph and Another v R [1981] TLR 351.

Tendwa for the respondent.

[zJDz]Judgment

E Lubuva, JA delivered the following considered judgment of the court:

The appellant together with Hamisi Selemani and Issa were jointly charged in the

District Court if Ilala with robbery with violence contrary to ss 285 and 286 of the

Penal Code. He was convicted as F charged and sentenced to thirty years

imprisonment. In addition, he was condemned to corporal punishment of ten strokes.

He unsuccessfully appealed to the High Court (Masanche J). He is now appealing to

this Court against both the conviction and sentence.

G The facts of the case as found by both courts below are as following: On 11

December 1989, at about 7 pm, Hassan Abdallah (PW2) the complainant set out from

his residence in Upanga area for an outing. He was driving a motor vehicle

registration No TZ 77533. Before he had gone far from his house, he stopped over at a

nearby shop to buy some cigarettes. From the shop as the complainant H was

walking back to the motor vehicle he was confronted by one person who was dressed

in police uniform. As this self styled policeman was inquiring from the complainant

(PW2) about the motor vehicle, three other people joined in. They were also dressed

in police uniform. At gun point the motor vehicle was forcefully driven away

together with the complainant who, in the process I underwent trau-

1994 TLR p67

LUBUVA JA

matic torture and horror. The complainant was eventually abandoned in Kawe area

within the A outskirts of Dar es Salaam in a very distressed condition. The bandits

vanished with the motor vehicle.

In the course of investigation, on 13 December 1989 the motor vehicle was found in

Mwananyamala at the house of one Hamisi (accused No 1) who was jointly charged

with the appellant. He was B acquitted at the trial before the District Court. Issa

Hamisi the son of Hamisi Selemani was the other accused (accused No 2) who was

charged with the appellant for receiving stolen property and was sentenced to three

years imprisonment. He did not appeal. The appellant and two of his friends C

(Emmanuel and Frank) who could not be traced had brought the motor vehicle to this

house in Mwananyamala from where it was recovered resulting in the arrest and

prosecution of the appellant, (third accused), Hamisi Selemani (first accused) and Issa

Hamisi (second accused).

The appellant appeared before us in person. The respondent was represented by Mr J

B Tendwa, D learned Senior State Attorney. At the hearing of the appeal, the

appellant emphasized his complaint that it was unfair for the trial magistrate to

proceed with the hearing of the case in the absence of his advocate. He should have

been given the opportunity to look for another counsel since the advocate E Mr

Mchora could not continue to conduct this appeal on the basis of the ground set out

in his field memorandum of appeal.

In his first ground of appeal, the appellant asserts that the learned judge erred in law

in supporting a conviction which was based on the evidence of a co-accused. He cited

s 30 of the Evidence Act F 1967 in support of his argument that the evidence of the

co-accused, (second accused) should not have been admitted since it was made in

circumstances of such a nature as was likely to cause an untrue admission of guilty.

He argued further that as the confession of the second accused was G induced, his

evidence should not have been acted upon. Mr Tendwa, Senior State Attorney briefly

stated that both the courts below properly addressed themselves on this point and

relying on the provisions of s 142 of the Evidence Act 1967, accepted the evidence of

the co-accused (second accused). He argued that this ground of appeal was without

substance. H

On record, it is quite clear that both the trial magistrate and the learned judge on first

appeal seriously and properly directed themselves to this important issue. It raises a

fundamental aspect on which the evidence implicating the appellant hinges. The trial

magistrate in a commendable manner dwelt at I length in analyzing the

1994 TLR p68

LUBUVA JA

A evidence of the second accused as a co-accused. Likewise, the learned judge

addressed himself on the matter saying:

`Evidence from a co-accused is accomplice evidence but the law does not say

that a court cannot convict on accomplice evidence without corroboration. It can

convict if it is convinced that the evidence could be no other than B true, provided it

warns itself of the dangers of convicting on an accomplice's evidence without

corroboration.'

The learned judge could not fault the trial magistrate on her approach towards the

evidence of an C accomplice. He concluded that on the evidence given in court

together with the cautioned statement the trial magistrate was satisfied that the

appellant was one of those who robbed the complainant (PW2). We think the learned

judge was correct. In regard to the second accused at the trial (Issa D Hamisi) there is

no doubt in our mind, that he was an accomplice for the following reasons. One, the

second accused received the motor vehicle which was brought to his house by the

appellant together with the other two persons who are at large (Emmanuel and

Frank) on the understanding that it would be taken on safari the following day.

Second, soon after the motor vehicle had been E brought to the house of the second

accused the carpets, the registration number plate; seat covers, and tyre of the car

were removed with the assistance of the second accused. Such evidence in our view

shows clearly that the second accused was aware or had reason to suspect that the car

had F been stolen. He was therefore a participant to the crime - participet criminis.

We will now examine the legal effect of the evidence of the accomplice, the second

accused at the trial (DW2) against the appellant. It is common knowledge that under s

142 of the Evidence Act 1967, the evidence of an accomplice is admissible against a

co-accused. It provides:

G `142. `An accomplice shall be a competent witness against an accused person;

and a conviction is not illegal merely because it proceeds upon the uncorroborated

testimony of an accomplice.'

H However, as correctly observed by the trial magistrate and the learned judge,

even though the law is such that a conviction based on uncorroborated evidence of an

accomplice is not illegal, still as a matter of practice, the then Court of Appeal for

Eastern Africa and this Court have persistently held that it is unsafe to uphold a

conviction based on uncorroborated evidence of a co-accused.

I In this case, the trial magistrate as well as the learned judge on

1994 TLR p69

LUBUVA JA

first appeal apart from warning themselves of the danger of convicting on

uncorroborated evidence of A the second accused (DW2), went further to look for

other evidence implicating the appellant. It is common ground that corroborative

evidence may well be circumstantial or may be forthcoming from the conduct or

words of the accused. On this, numerous decisions have been made by the then B

Court of Appeal for Eastern Africa - see R v Saidi Magombe (1) and Migezo Mbinga v

Uganda (2). On record, the trial magistrate addressed herself to the cautioned

statement of the appellant. Assistant Inspector Tuomas Iddi Semkondo, the

investigation officer, took the cautioned statement of the appellant. We are satisfied

that it was a voluntary statement made without any inducement or C torture as

correctly found by the learned trial magistrate. In that statement, the appellant, on his

own volition mentions Emmanuel and Frank as the other people who were involved

in the robbery of the car. We think the learned trial magistrate properly took that

view. If the appellant had not participated D in the commission of the offence, how

was he able to know of Frank and Emmanuel who are still at large as participants to

the crime. It had not been suggested to him by anybody, it came from him

voluntarily. In the circumstances, we think the learned trial magistrate correctly held

that this conduct E of the appellant independently corroborated the evidence of the

co-accused, the second accused at the trial.

On this ground, we are convinced that both the lower courts having believed the

evidence of Issa Hamisi (DW2) as truthful, and warning themselves of the danger of

convicting on the evidence of an F accomplice whose evidence was corroborated by

the conduct of the appellant, there was no misdirection or error on the part of the

learned judge.

Ground two of the appeal concerns legal representation. It complains against the

decision of the trial magistrate to proceed with the trial of the case in the absence of

Mr Mchora, advocate for the G appellant. It deprived the appellant of his right to

legal representation. On this important legal point, at first Mr Tendwa learned Senior

State Attorney for the Republic, was not inclined to deal with it at length because the

matter was not raised on appeal before the High Court. However, at the H

suggestion of the Court, he submitted that the advocate's absence at the trial did not

prejudice the determination of the case. Mr Tendwa finally contended that the

appellant had ample opportunity of defending himself as well as cross examining the

witnesses at the trial on the various aspects of the case. I

1994 TLR p70

LUBUVA JA

A From the record, it is apparent that Mr Mchora, learned advocate had been

appearing for the appellant from the beginning of the trial. The accused persons (first

and second) were not represented throughout the trial. The trial started on 15 July

1989 and since then, on different days, B evidence had been taken from a total of

four prosecution witnesses in the presence of Mr Mchora who cross-examined such

witnesses. After the fourth prosecution witness had testified on 24 August 1989, the

case was adjourned until 5 September 1989 for continued hearing. On 5 September

1989 when the case was called out for hearing Mr Mchora for the appellant was

absent without any C information to the court. The case was again adjourned until

19 September 1989. On 19 September 1989 again Mr Mchora was absent without any

information. The case was once again adjourned until 29 September 1989 for mention

and 5 October 1989 for hearing. The case was mentioned on 29 September 1989 when

5 October 1989 was confirmed as the date for hearing. On 5 October 1989 D when

the case was called out for hearing Mr Mchora was again absent. Then, the appellant

stated:

`I have not received any information about my advocate.'

E The court then recorded:

`Advocate of third accused Mr Mchora is absent without cause. We will

proceed with hearing.'

F The trial then proceeded to finality without the appellant's advocate. The

appellant defended himself as the other accused (first and second) did.

The main issue for consideration on this ground is whether the absence of the

advocate did G prejudice the case of the appellant. That is, if the advocate was

present, would it have affected the determination of the case against the appellant. In

the case of Laurent Joseph and another v Republic (3) we had the occasion to observe

on the importance of affording opportunity to accused H persons to have legal

representation during trial. It is more pertinent as it happened in the instant case

where the party concerned had engaged the service of an advocate. In the case cited

(supra) the appellant was the only one among the other accused persons in a murder

charge who was not represented. In the circumstances, because it was not certain if

his defence would have been I affected had the appellant been represented, we

ordered a retrial of the case for all the accused persons. In the instant case, contrary to

the case

1994 TLR p71

LUBUVA JA

cited above, the appellant was the only one who was represented by counsel. The rest

of the A accused were not represented.

In view of the time honoured practice, with respect, we think the learned trial

magistrate was in error in not giving a last chance opportunity to the appellant when

the attention of the court was drawn to the fact that the advocate was absent. It

would then be open to the appellant either to impress upon B Mr Mchora to appear

at the next date set for hearing or to arrange to get another advocate. However,

though the trial magistrate erred on this point, we are of the settled view that in the

circumstances of the case the error did not prejudice or occasion a failure of justice on

the part of the appellant. In our C view, this is because, first, the appellant's

engagement of the service of an advocate is no justification for protracted and undue

delay in the disposal of proceedings before the court due to the advocate's failure to

attend court trial. In this case Mr Mchora, learned advocate had on a number of D

occasions absented himself from the court without information. The court had

obliged to and granted several adjournments. Second, and more importantly, the main

line of defence of the appellant is the evidence of DW2 (second accused) as a coaccused.

We have already sufficiently addressed ourselves to this evidence. It is an

issue which was looked into in the light of the statutory E provisions of s 142 of the

Evidence Act 1967, and the rule of practice pertaining to the evidence of an

accomplice. Thirdly, the appellant's cautioned statement (exh P5) was reiterated by

the second accused (DW2). To all these, the learned trial magistrate addressed herself

sufficiently. Therefore, F we do not think that the presence of the advocate would

have made any difference to the legal defence of the appellant. We are convinced that

the case of the appellant was not prejudiced when the learned magistrate proceeded

with the trial in the absence of the appellant's counsel. We now turn to ground three.

It concerned the legality of the sentence imposed. Mr Tendwa, Senior State G

Attorney, conceded that it was an error on the part of the learned trial magistrate to

invoke the provisions of Act 10 of 1989 in this case. According to Mr Tendwa, the

offence took place on 11 February 1989. In that case, in terms of the provisions of s

13(6)(c) of the Constitution of the United H Republic of Tanzania, this Act which

provides for a minimum of thirty years imprisonment could not be applied. This

section of the Constitution provides:

`13(6)(c) No person shall be punished for any act which before its commission

was not defined as such offence, and no penalty imposed I

1994 TLR p72

LUBUVA JA

A for any criminal offence shall be heavier than the penalty in force at the time

the offence was committed.'

And s 49 of the Interpretation and General Clauses Act, chap 1 of the laws provides:

B `49. Where an act constitutes an offence and penalty for such offence is

amended between the time of the commission of such offence and the conviction

thereof; the offender shall, unless the contrary intention appears, be liable to the

penalty prescribed at the time of the commission of such offence.'

C Such being the position of the law, and as correctly conceded by Mr Tendwa

learned Senior State Attorney, it is clear that it was wrong to apply Act 10 of 1989

which came into operation after commission of the offence. To do so means applying

a penal legislation retrospectively which is in D conflict with the above cited

legislative provisions. With respect, this is an aspect which the learned judge did not

address himself. The applicable legislation at the time of the commission of the

offence is the Minimum Sentences Act 1967 and the Penal Code. Accordingly, we set

aside the sentence of E thirty years imprisonment and the order of corporal

punishment. The gravity of the offence needs no further explanation. The minimum

sentence prescribed for such an offence under the law as it stood then was seven years

imprisonment and the upper limit set under the Penal Code is twenty years. We

accordingly substitute a sentence of fifteen years imprisonment therefore.

F Consequently, for reasons explained, the appeal against conviction is dismissed

and the appeal against sentence is allowed to the extent explained above.

1994 TLR p73

A