Kitete and Another v Rex (Criminal Appeals Nos. 179 and 180 of 1951) [1951] EACA 294 (1 January 1951)

## COURT OF APPEAL FOR EASTERN AFRICA

### Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and SIR HECTOR HEARNE, C. J.

# (1) RAJABU s/o KITETE and AHAMED s/o MASUDI, Appellants (Original Accused)

$\mathbf{v}$

### REX, Respondent (Original Prosecutor)

#### Criminal Appeals Nos. 179 and 180 of 1951

(Appeal from decision of H. M. High Court of Tanganyika at Dar es Salaam-Knight, J.)

Section 317 (1) (b) Tanganyika Criminal Procedure Code—Necessity for strict compliance when summarily rejecting appeal.

The appellants having been convicted on charges of official corruption by the Resident Magistrate, Dar es Salaam, appealed to the High Court under section 312 of the Criminal Procedure Code. Their petitions of appeal were<br>summarily rejected by an order of a Judge of the High Court under section 317 (1) (b) of the Criminal Procedure Code which order read:—

"The evidence which the learned Magistrate accepted amply sufficed to establish the accused's guilt of these offences beyond reasonable doubt. His appeal is hereby summarily rejected."

Section 317 (1) requires the Court to certify that after perusing the record the Court is satisfied that the appeal has been lodged without sufficient ground of complaint.

Held (6-11-51).—A strict compliance with the provisions of section 317 (1) as to certification on summary rejection is desirable.

Appeal allowed.

Inniss, Solicitor General (Tanganyika), for Crown.

Appellants absent and not represented.

JUDGMENT.—The two appellants, whose appeals we have consolidated, were charged jointly before the Resident Magistrate's Court at Dar es Salaam, and were, on 17th July, 1951, convicted on three counts of official corruption, contrary to section 91 (1) of the Tanganyika Penal Code. (Cap. 16 of the Laws of Tanganyika, 1947.) They were each sentenced to undergo six months' imprisonment with hard labour on each count, the sentences to run consecutively.

These convictions and sentences were subject to confirmation by the High Court of the Territory, but on 8th August, 1951, both appellants gave notice of their intention to appeal to the High Court under section 312 of the Criminal Procedure Code. Petitions of appeal against both conviction and sentence were subsequently lodged, but were summarily rejected by order of a Judge of the High Court made under section 317 (1) (b) of the Code. The order reads as follows:-

"The evidence which the learned Magistrate accepted amply sufficed to establish the accused's guilt of these offences beyond reasonable doubt. His appeal is hereby summarily rejected."

We observe that this order does not fully comply with the provisions of subsection (1) of section 317 which requires the Court to certify that after perusing the record the Court is satisfied that the appeal has been lodged without any sufficient ground of complaint. Having ourselves carefully perused the record in this case we would express our surprise that the learned Judge should have summarily rejected the appeal. We would respectfully suggest to the Judges of the High Court of the Territory that the procedure under section 317 should only be used when the correctness of the conviction is plain beyond argument, and we would further suggest that a strict compliance with the provisions of that section as to certification on summary rejection, would impress upon the mind of the Judge that he must be satisfied that the appeal is frivolous or without substance. As will appear later in this judgment, these appeals were far otherwise. In point of fact the fourth ground in the memorandum of appeal to the High Court (which was drawn up by the officer in charge of the prison at Msasani, Dar es Salaam) was, though framed in inapt terms, an appeal on a point of law. It reads:-

"The evidence given by the first witness Andrea does not exactly indicate that I received a bribe."

Put into technical terms this means that there was no evidence to support the first count on the charge sheet, and as will appear below this was a substantial ground of appeal.

The first count charged that the two appellants on the first day of July, 1951, in the Municipality and District of Dar es Salaam, being employed in the Public Service as Police Plain Clothes Constables, did corruptly receive Sh. 4 from Andrea for forbearing to arrest the said Andrea on a charge of gambling in a public place. The evidence, upon which this count was based, was primarily that of Andrea himself who testified that on Sunday, 1st July, 1951, at about 11 a.m., he was gambling with another man, whose name was unknown to him, when the two appellants arrested him and his friend, and seized some money and cards on the ground nearby. The witness further said that the two appellants took them first to a clerk at their work-place and then to the camp watchman. The latter identified the witness to the appellants and told the appellants to take the other two persons to the *boma*. On the way, the witness said, the second appellant asked if the witness had Sh. 20, and the witness replied that he had no money, whereupon the second appellant searched him and took Sh. 4 in silver, out of his pocket, and 80 cents in coppers from his hand. While this was going on the first appellant was holding the witness. The witness also said that the second appellant took Sh. 9 from his friend. The appellants then allowed the witness and his friend to go, saying that the money that had been taken was "our fine". The witness was not prosecuted for gambling. The only corroboration of this was afforded by one Petro (P. W.5) who said that he saw the witness under arrest, though he could not identify the appellants, and by one Abdullah $s/o$ Hussein (P. W.3) a camp headman who said that the two appellants brought the witness Andrea, and another man to him in handcuffs, and that he merely identified Andrea to the appellants. A little later Andrea returned and said to the headman: —

"I kicked them on the back and they let me go."

And also: $-$

"We paid money to the askaris and they released us.".

We observe that in Andrea's evidence there is no suggestion that he paid any money to either of the appellants. His evidence, if true, might have grounded a charge of stealing from the person, contrary to section 269 of the Penal Code, but it afforded no evidence of the offence with which the appellants were charged. In our opinion the charge was wrongly conceived and the conviction thereon cannot stand.

The second and third counts of the charge relate to an incident alleged to have occurred on a day unspecified in the month of June, 1951. The second count charges the appellants that they:-

"On a certain date in the month of June, 1951, in the Municipality, etc., as aforesaid, being employed in the public service as Police Plain Clothes Constables did corruptly receive Sh. 15 from Yasia s/o Paulo for forbearing to arrest the said Yasia s/o Paulo on a charge of gambling in a public place."

The particulars of the third count were the same, except, that it was alleged that the appellants corruptly received Sh. 15 from Abdulhamani s/o Hamisi for forbearing to arrest the said Abdulhamani s/o Hamisi. These two counts depended upon the evidence of Yasio (P. W.6) and Abdulhamani s/o Hamisi (P. W.7). They contradicted one another in some details, but in substance their testimony was that on some day in June they were gambling with other persons when they were arrested by the two appellants, handcuffed and taken to the camp headman, Abdullah (P. W.3), who told the appellants to take them away. On the way to the police station the second appellant said:—

#### "If you pay Sh. 30 between you we will release you."

Yasio's handcuffs were then removed. He went to his home, collected Sh. 30 and handed this to the second appellant on his return. Abdulhamani s/o Hamisi was then released from his handcuffs and the two appellants went off. The two witnesses returned to camp, and according to their story, reported the matter to he headman, Abdullah. Our first observation is that there is no evidence that Abdulhamani s/o Hamisi contributed any part of this Sh. 30. The transaction disclosed, if the evidence were true, was one payment of Sh. 30, not, as alleged in the particulars "for forbearing to arrest Yasio and Abdulhamani", but to<br>release them from lawful custody. This was one transaction and should have<br>been charged as one offence, not as two separate offences. The point is importance as the learned Magistrate convicted the appellants of two separate offences and imposed consecutive sentences of imprisonment. In our view, the charges were wrongly framed and the convictions cannot stand.

A further ground in each memorandum of appeal is that the convictions were based solely on the evidence of gamblers, evidence which ought always to be considered as unreliable and ought not to have been admitted by the Magistrate. This, we think, if put into technical terms, amounts to saying that the evidence on which the convictions were based was that of accomplices and that there was no corroboration, or not sufficient corroboration by independent evidence. The learned Magistrate was fully aware that Yasio and Abdulhamani s/o Hamisi were accomplices on their own showing and that he ought to look for corroboration of their evidence. He found corroboration in the evidence of the headman, Abdullah s/o Hussein (P. W.3) whom he accepted as a reliable and independent witness. He does not, however, examine the evidence in detail, or say in what respects Abdullah corroborated the two accomplices. Abdullah said that after the two appellants had brought the two men to him in handcuffs and he sent them away, Yasio and Abdulhamani returned to him later that day and said that they had paid money to the constables and the constables had let them go. They did not tell him how much they had paid. Abdullah's evidence, therefore, was corroboration of the fact that the two accomplices in the alleged bribery were arrested by the appellants and show to that extent their story is true, but it is no direct corroboration of the offence alleged. The statements made

by Yasio and Abdulhamani s/o Hamisi as to payment of money to the appellants were admissible as "corroboration" under section 157 of the Indian Evidence Act which applies in Tanganyika Territory. But, as has been said: —

"The force of any corroboration (which assumes that there is something to corroborate) by means of previous consistent statements depends upon the truth of the proposition that he who is consistent deserves to be believed. The corroborative value, however, of such previous statements is of varying character, dependent upon the circumstances of each case, and a person may equally persistently adhere to falsehood once uttered if there be a motive for it." (Woodroffe and Ameer Ali. Law of Evidence 9th Edition, $1023.)$

This form of corroboration is indeed of very little evidential value and although it has been held that the former statement of an accomplice is legally admissible to corroborate his testimony at the trial (see *Muthukuraswami v. Rex* (1912), 35 M. 397 cited in Rex v. Leonard 10 E. A. C. A. 113 at page 114) yet as it there said the weight to be attached to it, or in other words how far it does really corroborate the evidence given at the trial, must vary with the facts of each case. There is nothing in the learned Magistrate's judgment which indicates that he realized the need for caution in accepting corroboration of this nature, and we are far from satisfied that had this consideration been fully present in his mind he would have regarded the alleged corroboration as sufficient.

We also observe that although it emerges generally from the evidence that the appellants were Plain Clothes Police Constables, this was never strictly proved. An essential ingredient of the charges was that the appellants were public servants, and the prosecution had the opportunity of proving this ingredient when<br>Mr. McKinley, an Assistant Superintendent of Police at Dar es Salaam, was giving evidence, and we consider that the learned Magistrate should have required his fact to be proved before he called on the appellants for their defence.

In our view, the irregularities in these proceedings have occasioned a failure of justice and this is not a case where the provisions of section 346 of the Criminal Procedure Code can be called in aid of the convictions. For these reasons we allowed the appeals of both appellants, quashed the convictions and exentences and have directed that the appellants be forthwith set at liberty.