Bushiri Amiri vs Republic [1992] TZHC 11 (28 April 1992)


Mroso, J.: The appellant and another were prosecuted and convicted for cattle theft, A contrary to section 268 and 265 of the Penal Code. They were each sentenced to eight years imprisonment. The appellant, but not the other accused person, felt aggrieved by the conviction and sentence and, therefore, has appealed to this court through his advocates M/S Shayo, Jonathan and Company. Six grounds of appeal were filed and B Mr. Shayo, Junior, learned advocate, argued the appeal before me.
The brief facts on which the District Court of Hai convicted the appellant are as follows. At about noon on 27/12/89, at Bomang'ombe, two young men, P.W.1 - Ally C Mohamed aged 16 years and P.W.4 - Twalili Abdi aged 14 years, were grazing cattle 27 head of cattle and 7 goats in the pastures. Two people approached them, beat them up, and stole all the animals which were being grazed. The two young men were forced to accompany the cattle raiders but, later in the evening, they managed to escape D from them. About three days later a village search party which included P.W.6 - Mayaha Lesekoni, recovered all the stolen cattle from the boma of the first accused (in the trial court) in Kiteto District. The first accused was also immediately arrested after the cattle were recovered. The first accused named the appellant as a co-participant E in the theft of the cattle. That led to the arrest of the appellant.
At the trial P.W.1 said that appellant was one of the cattle raiders, that he had put on a militia uniform and held a shotgun. The same evidence was given by P.W.4. P.w.6 told the trial court that the first accused implicated the appellant. The first accused F admitted in court when he was being cross-examined by the appellant that he had indeed named him as a participant in the cattle theft. The appellant himself during his defence said he had been a militia man and attempted to denial of the charge against him. He merely said that his village, apparently Sanya Station, had been raided on the G night of 26/12/89, which should be the night before the day for the cattle theft, and that he was one of the persons who the village chairman had instructed to patrol the village. He was arrested on 2/1/90.
The trial magistrate held that P.W.1 and P.W.4 had reliably identified the appellant as H one of the cattle raiders because they had ample time to mark their appearance unmistakenly. It is not however apparent from the judgment if the trial magistrate made use of the claim by the first accused to the arresting party that the appellant participated in the cattle theft. I

In the first ground of appeal it was argued that the trial magistrate erred in law and in A fact in not considering the defence evidence of the appellant. It is true the trial magistrate did not comment on the evidence of the appellant in his defence, but I can find nothing helpful to the appellant in his defence evidence. As I mentioned earlier in this judgment, he made no attempt to expressly deny the charge of cattle theft which was facing him. B
It was also argued that since the prosecution did not cross-examine the appellant on what he said in his defence evidence, it must be taken that the defence evidence was accepted as correct and true. With respect to the learned counsel for the appellant, C was there anything worth cross-examining on? It seems to me that apart from mentioning the date he was arrested, the appellant did not say anything during his defence which was relevant to the charge against him.
He talked about being instructed by his village chairman during the night of 26/12/89. D The cattle theft occurred at noon on 27/12/89. He said nothing about what he did or where he was on 27/12/89.
In the third ground of appeal it was argued that the trial magistrate grossly erred in not considering the issue of identification. The trial magistrate in fact appears to have E considered the question of identification of the appellant and the first accused but, certainly, not adequately.
I would agree that it was not enough for P.W.1 and P.W.4 to tell the trial court that the appellant had put on a militia uniform and carried a shotgun, even though the appellant F admitted in his evidence he had trained as a militiaman. There ought to have been evidence that the two witnesses gave a detailed description of the appellant to the persons to whom they first reported about the theft, before they had a chance of seeing the appellant after he was arrested. The description would be on say appearance, G colour, height and on any peculiar mark of identity.
The great significance of evidence of description of a suspect was underscored as long ago as 1942 in the Court of Appeal for Eastern Africa judgment in Rex v Mohamed H Bin Allui (1942) 19 E.A.C.A. 72 cited to me by Mr. Shayo, where the Court said:
This Court has previously pointed out, and we wish to repeat, that in every case in which there is a question as to the identity of the accused, the fact of there having been a I description given and the terms of that description are matters of the

A highest importance of which evidence ought always to be given; first of all, of course, by the person or persons who gave the description and purport to identify the accused, and then by the person or persons to whom the description was given .......
B If the description is recorded at the time in an Occurrence Book, Diary or in any other form of writing such book or writing should be put in evidence, if admissible ...
In the case under discussion, the only evidence of description of the appellant was C that he wore a militia uniform and carried a gun. That kind of evidence does not help in identifying the appellant unmistakenly.
The third ground of appeal is not justified. It is complained that the trial magistrate D grossly erred in believing that the first accused mentioned the second accused (appellant) "without any evidence to that effect". I can see no reason why the trial magistrate should not have believed that the first accused mentioned the appellant as a participant in the cattle theft. The first accused admitted as much in court under E cross-examination by the appellant, thus confirming the evidence of P.W.6. But as said earlier in this judgment, there is no clear indication from the judgment that the trial magistrate relied on that evidence of P.W.6 and the first accused in convicting the appellant.
I think it is well accepted that the evidence of a co-accused is on the same footing as F that of an accomplice, that it is admissible but must be treated with caution and, as a matter of prudence, would require corroboration.
In Omari J. Kibanike and 40 others v R. Criminal Appeal No. 224/75 (DSM High G Court Registry) the late Biron, J. said:
Where at a trial an accused opts to give evidence on oath and in such evidence he incriminates a fellow accused, such evidence is admissible against the other, though it cannot be treated otherwise than as evidence of an accomplice and therefore requiring H corroboration in practice though not in law, vide section 142 of the Evidence Act, 1967.
Mapigano, J. echoed that view in - Ibrahim Daniel Shayo v R. Criminal Appeal No. I 10 of 1990 (DSM High Court Registry) unreported, where he said:

A Where an accused person gives evidence on oath in a joint trial implicating another accused (even if not a confession), whether or not he implicates himself, it may be used against that other accused, because that evidence is on the same footing as that of any other witness, though as a matter of prudence it must be approached with caution. B
In the case under appeal before me, the first accused implicated the appellant by saying under cross-examination from the appellant, that he had said they were together when committing the cattle theft. The first accused did not, as suggested by the trial C magistrate in his judgment, repudiate or retract or qualify the claim that they committed the crime together. But should the court rely on the word of the first accused alone to convict the appellant?
It is my judgment that it will be unsafe to found a conviction of the appellant on the evidence of the first accused. There are two reasons for this view. First, because of D the time honoured practice of the courts that the evidence of a co-accused, who is treated as an accomplice, should require corroboration. Second, the first accused when giving his evidence in chief did not implicate the appellant. He only did so under cross-examination. This, to me, casts a shadow of doubt on the truthfulness of his E claim and enhances the need for corroborative evidence. Because of the weakness of the evidence of identification given by P.W.1 and P.w.4, I am unable to consider it as good corroborative evidence. It follows that the trial court would not have been on safe ground to convict the appellant on the basis of the evidence of the first accused. F
Ground six of the petition of appeal criticized the judgment for wanting in legal (judicial) reasoning. I would agree right away. After summarizing the evidence at some length, the trial magistrate spent only 10 lines of the two page typed judgment to explain why he G found the appellant guilty as charged. The only reason he found the appellant guilty was that he was satisfied P.W.1 and P.W.4 upmistakenly identified the appellant, because "they had ample time of marking their assailants". But he never considered the shortcomings which I highlighted above such as their failure to give a description of H the appellant before he was arrested or the failure of the investigating officers to mount an identification parade. In fact the impression one gets from the recorded evidence is that the appellant was arrested solely because the first accused had named him. I

Earlier in this judgment I said that the appellant had not made a clear denial of the A offence. For that reason, the appellant had practically no defence for the offence charged. But despite that weakness he could not be convicted on that basis for an accused who had pleaded not guilty to a charge can only be convicted on the strength B of the prosecution evidence against him and not because of his weak or worthless defence.
In this appeal the learned State Attorney for the Respondent Republic did not seek to support the conviction. I have come to the same view that it will not be safe to uphold the conviction. It follows that I am allowing the appeal by quashing the conviction and C setting aside the sentence which was imposed on him. He is to be set free forthwith unless he is held for some other lawful cause.
Appeal allowed.


▲ To the top