Court name
Court of Appeal of Tanzania

Fanuel Joseph Mbedule vs Republic () [1989] TZCA 12 (22 November 1989);

Law report citations
1989 TLR 221 (TZCA)
Media neutral citation
[1989] TZCA 12
Coram
Makame, J.A.
Omar, J.A.
Mnzavas, J.A.

Makame, Omar and Mnzavas, JJ.A.: The appellant, Fanuel Joseph Mbedule, was, F in Mbeya District Court Criminal Case No. 145 of 1988, charged with and convicted of stealing by public servant contrary to sections 265 and 270 of the Penal Code and sentenced to 5 years imprisonment. He was aggrieved by the finding and sentence of the trial court and appealed to the High Court.
The High Court (Mroso, J.) after evaluating the evidence came to the conclusion that the G appeal had no merit and dismissed it in its entirety.
Still dissatisfied the appellant has appealed to this court.
Mr. Bateyunga, learned counsel for the appellant, argued before us that the first appellate court erred in finding that the evidence of George Ngela (PW.5) and Mogan H Mwakapuji, (PW.6), who were accomplices was corroborated by the testimony of Amosi Mwangalila (PW.8). It was the learned counsel's submission that Amosi Mwangalila was himself an accomplice who could not corroborate the evidence of other Iaccomplices.

MAKAME JJA, OMAR JJA AND MNZAVAS JJA
Mr. Bateyunga also submitted that the evidence that a key which opened the laboratory A store from which a refrigerator was stolen was found in appellant's room was of no consequence as, it was argued, there was evidence that other workers in the school possessed keys which opened the store. It was finally the learned counsel's argument that it was quite possible that the key found in appellant's room had been planted there. B
Mr. Kapinga, learned State Attorney supported the conviction on the ground that the learned judge and the trial magistrate found that there was corroboration of the testimony of PW.5 and PW.6 by the evidence of Amosi, PW.8. The learned counsel also argued C that even if PW.8 was himself an accomplice the trial court believed him to be a credible witness and that as such his evidence did not need corroboration in view of the provisions of section 142 of the Evidence Act.
The facts in this case were simple and straight forward. On 15/4/88 a refrigerator was D stolen from Loleza Secondary School. The matter was reported to the police and a week later wheels of investigation led to the house of Yahya Mzanda, (PW.7), in which a fridge was found. The fridge was later identified as the very one stolen from Loleza Secondary School. In his evidence Yahya, (PW.7), testified that the fridge was sold to E him by Mogan Mwakapuji (PW.6).
Mogan admitted in his evidence to have sold the fridge to Yahya. He also testified that the fridge was initially sold to his friend George Ngela, (PW.5), by the appellant and that F he helped his friend in carrying the fridge from Loleza Secondary School premises to George Ngela's kiosk. It was after the fridge was found to be unsuitable for George's kiosk that a decision was taken to sell it to Yahya.
In his defence the appellant totally denied having sold a fridge to George Ngela leave G alone stealing one from Loleza Secondary School.
The trial court found PW.5 and PW.6 to be truthful witnesses and found it as a fact that it was the appellant who sold the fridge to PW.5 having stolen it from a laboratory store H at Loleza Secondary School. This being a second appeal this court is not concerned with the trial court's finding of fact. We are only concerned with the arguments by the defence that PW.5 and PW.6 were accomplices whose evidence needed corroboration and that the courts below erred in acting on their evidence to the detriment of the appellant. I
With respect to the learned defence counsel we are also of the

MAKAME JJA, OMAR JJA AND MNZAVAS JJA
view that PW.5 and PW.6 were accomplices whose evidence needed corroboration as A a matter of practice before being acted upon to the detriment of the appellant. But with even greater respect to the learned defence counsel we are also satisfied that there was sufficient corroboration evidence in support of the testimony of PW.5 and PW.6 B that it was the appellant who sold the stolen fridge to George (PW.5). This corroborative evidence is found in the testimony of Kange Ally, (PW.4), which was to the effect that the appellant had told him that he was selling a fridge and asked him to tell the owner of the kiosk, (PW.5), about it. Apparently Kange, (PW.4) was at the material C time selling soda in PW.5's kiosk. Later Kange told PW.5 what the appellant had told him. It is therefore amply clear that the only role played by Kange was that of reporting to PW.5 what the appellant had told him. That being the position Kange cannot, by any stretch of the imagination, be traded as an accomplice whose evidence needed corroboration. D
As it was held in the case of R. v Medcraft (23 Cr. Appl. R. 166) "evidence in corroboration of evidence of an accomplice need not be direct evidence, it is sufficient if it is circumstantial evidence connecting the accused with the offence." This decision was quoted and followed by the Court of Appeal for Eastern Africa in Rex v Gongolo s/o E Ibalwe [1937] E.A.C.A. 66.
Even if, for the sake of argument, there was no corroborative evidence of the testimony of PW.5 and PW.6 who were clearly accomplices section 142 of the Evidence Act says and we quote:
An accomplice shall be a competent witness against an accused person; and a conviction is F not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
The upshot of this is that the trial court which apparently accepted the testimony of G PW.5 and PW.6 as credible would have been fully justified under section 142 of the Evidence Act to convict the appellant of the offence charged even if there was no corroborative evidence in support of their testimony.
Apart from the evidence of PW.4 there was also the testimony of the watchman, H (PW.8), and that of the Headmistress, (PW.3), which tended to implicate the appellant with the offence.
We are therefore of the opinion that the concurrent findings of the lower courts was the only reasonable finding to which they could come and we accordingly dismiss this second appeal in its entirety. I
Order accordingly

A
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