Hamisi v. R. Crim. App. 159-D-71; 20/8/71; Onyiuke J.

Hamisi v. R. Crim. App. 159-D-71; 20/8/71; Onyiuke J.

The appellant was convicted of stealing 100 bags of cashew nuts, valued at Shs. 7,759/60, property of the Mtwara Regional Cooperative Union. The prosecution alleged that on the 21/1/70, the Secretary of Mahuta Cooperative Society dispatched 100 bags of cashew nuts to the National Agriculture Products Board. They were properly labeled with the society’s zonal mark on Produce Delivery Note 134989. The Board received the produce on 22/1/70 but rejected the produce since it was inadequately dried. Under these circumstances the proper procedure was to send the produce to the Cooperative Union Loco for further drying and after drying to return the produce to the Board’s godown. There was evidence that the produce was in fact treated at the Loco and dispatched to the Board’s godown on 11/2/70 on Delivery Order Note 45604 in motor vehicle TDY 930. The driver of this vehicle was PW3 and he was accompanied by the turnboy PW. 4. These two witnesses and the appellant were employees of the Wakulima Transport Company. PW. 3 and PW. 4 reported on duty on 11/2/70 and were instructed by the appellant to proceed in vehicle TDY 930 belonging to the Company to the Union’s Loco and transport the cashew nuts to the Board’s godown. On their way to the godown, they were stopped by the first accused – who was acquitted in the trial court – and ordered to proceed to the offices of the Wakulima Transport Company where the appellant worked. There the appellant boarded  the vehicle and instructed them to proceed to Mikindani where they unloaded the cashew nuts at Mikindani Cooperative Society godown which was opened by the Chairman of the Society accompanied by the appellant. Both PW. 3 and PW. 4 testified that they did not know that the cashew nuts were bringing unlawfully taken to Mikindani. In his judgment, the learned magistrate treated PW. 3 and PW. 4 as accomplices but held that he could convict the appellant without corroboration of their evidence [citing Canisio s/o Walwa v. R. [1956] 23 E. A. C. A. 433]. During the trial, the appellant requested that the chairman and Secretary of Mikindani Cooperative Society should be called to testify but the prosecution opposed the application because they had been charged with the offence of receiving. In his ruling the learned magistrate ruled as follows: - “I do not think that it would be in the interest of justice that such persons sought by 2^nd accused (the appellant) should be called as defence witnesses particularly as they are also standing a charge. I therefore reject them.”

            Held: (1) “With respect, I think the learned magistrate erred in law in refusing to allow the appellant’s witnesses to testify for the reasons given. The question here was not as to the materiality or relevance of the evidence to be given by proposed witnesses. It is my view that an accused person has a right to call any person as a witness whose evidence is relevant or material to his defence. The fact that the proposed witness was standing a charge on some offence does not disqualify him from being a competent witness.

Section 127 of the Evidence Act States that all persons shall be competent to testify unless the Court is satisfied that they are disabled by reason of want of understanding, whether from tender age or old age of disease or similar causes. The Court has no discretion to refuse a competent witness to testify provided he is available and his evidence is relevant. The belief that the witness may be biased or is a participis crimmis or as of bad character is not a valid ground for refusing him to testify. Section 206 of Criminal Procedure Code which is applicable to subordinate courts requires the Court to ask an accused person against whom a prima facie case has been made out person against whom a prima facie case has been made out whether he has any witness to call and imposes a duty on the Court to hear such witness. If the witnesses are not immediately available section 206(2) requires the Court to adjourn the trial and issue process to compel their evidence was due to the fault of the accused or that their evidence was not likely to be material, in other words, that the application for adjournment was not made in good faith. The record however shows that the learned magistrate later relented on the insistence of the appellant to have this witness called and adjourned the trial to enable the Chairman of the Mikindani Co-operative Society testify for the appellant.” (2) “The learned magistrate then proceeded to treat PW. 3 and PW. 4 as accomplices apparently on the ground that they participated in the crime. In a way PW. 3 and PW. 4 participated in the crime in that PW. 3 drove the vehicle to Mikinadni Co-operative Society godown and PW. 4 and PW. 4 helped in unloading the cashew nuts, but were this enough to make them accomplices? They facilitated the commission of the crime but the point is that they did not know that a crime was being committed and were merely carrying out instructions of their superior officer. They were neither knowingly assisting nor encouraging the commission of a crime. They were, on the evidence, innocent agents with no guilty knowledge. They were passive instruments in the hands on the appellant and it would be odd to treat them as accomplices.” (3) Appeal dismissed.