Court name
Court of Appeal of Tanzania

Pascal Kitigwa vs Republic () [1993] TZCA 41 (15 December 1993);

Law report citations
1994 TLR 65 (TZCA)
Media neutral citation
[1993] TZCA 41

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-

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

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

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

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

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 co-accused. 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

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.

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