19790516 TZHC Tanga1

VAIC 1) 9M

IN THE HIGH COURT OF TANZANIA

AT TANGA APPLATE JUIIDICT1ON TDR CRIMINAL APEAL NO, 2 OF 1979 (original Criminal Case No. 301 of 1978 of the District. Court of Korogwe District at Korogwe) BEFORE: F .. A. PUSSI, Esq,, District Maistra.te AEDALLAH bALEHE : : ., : : APPELLANT (Original Accused) versus THE RL2PUBLIC :RESPONDENT (original Prosecutor) CHARGE:1,Brèaking into a building - contrary to..section 296(1) of the Penal Code; and .

2. Stealing - contrary to section 65 of:•the Penal Code,

JUDGMENT NYALJXIJI C.J. -. This criminal appeal otiginates in the Djstrjct Court of Korogwe District where the •appelldnt wis cha'ged with tio other persolas with the offence of breaking into a building - contrary to Section 296(1) of the Pena.l Code in the first count, and stealing - contrary to section 265 of the same Code in the second count. The two other persons who were charged as second and third accused were acquit±ed on both counts by the lower court but the appellant who appeared as the first accused at the trial in the District Court was convicted as charged on both counts and sentenced. to three years' imprisonment on the first count and six imprisonment on the secona count. The sentences were diaècted to run concurrently. The appellant was aggrieved by the convictions and sentences and henO this a peal to thin Court. In his memorandum of appeai he elected not to apearor be represented at the hearing of his appeal. The Republic was, however, represeited by:Mr. Sekule, learned Principal State Attorney. I have carefully examined the evidence adduced at the trial in the District Couct, the judgment of the trial court the memorandum . . . . ./ ( - 2 - of appeal submitted by the appellt to this Court, the brief oral submissions m:de by theled'rned Pri.:nclpal State átteniey at the hearing of this appeal, and it seems there is no dispute between The portios that, during:

the night of the 22nd/23rd Jamcry, 1973, the Hotel of P..1 was hrbken into and various articles were stolen ,froni: the Hotelstore and kitchen. Later, in the morning of the 23rd 'January; 1978, the appellant and two other perSon were appreheia4 by the police. Thereafter, in the sOme morning, P.P.l was called to the Police Station and shown various articles which P.d.l claimed to he among the articles stolen from his hotel. \ith regard to ters which are in dispute in. this Qase, it was the prosecution case' us laid out at the trial in the District Court in respect of the appellant that the appellant had offered to Sell to P.ui.2 som.e propet"±n the'morning of the 23rd January, .1978.. Purth.emore, it was part of the pros9cution cas. That the appellaflt's poSseSion of the property was made known to P.i..2 by the third accused, •;ho was acquitted at the trial, and that P J 2 was suspiciouS and contrived to inform the police who came hnd appr'endsed the appellant and the third accused 9 who was ac.uitted. It is part of the prosecution case that the police found the appellant in posession of the properties which were later claimed by P.'.1 as'being part of the property stolen from his Hotel. On the other hand 9 the .defchcdcaoe of the appellant at the trial in the District consisted in a gendral denial of the prosecution case and a claim tht he Was 'Opp'rehen ec while drinking local

liquor in contravntion of the cholera qua'anteen imposed in the area .prohibiing the consumption of Ideal liquor. It was also part of the defence case of the appcllrn tltdt he was surprised when later he found lfiind'elf bein& charged wib this offence. , . . .. . - ..../3 • ? -3- The first point for conside*ition and decision in this case, is whether the appellmt was found in poSSeSSion of the properties wichP.i.l subsecntly claimed to be part of his stolen property. It i apparent on record that the appellant did not suggest to the prosecution wi.tnesses, while crossexa1nnin, them, that he was arrested in conne.c.tio n with contravention of cholera quaranteen regulations. On the other hand, there jO the evidence of P.7.2, the person to whom the appellant offered to sell the property in question and the policeman (p.13) who appreheided the appellait, to the effect that the appellant was in poSSeSSion af . the .: properties which later p.\7.1 claimed to be p::rt of his stol.n V property. V On this videnc'e, I am satisfied th,Vt the appellant was found In possession of the property in question and I find it SO V V to be a fact. The next point for consideration and decisio.n in this case., is whether the poperty which the appel:1.ant was fbund.-jfl possession, V was among the property stolen from P.d.l 'S Hotel. According to VV V the rccodV. of the lower court, the property in iuet

io ri consisted of commofl crockery With no specific marks. p.'i.i stated 'I know thcm as I was always using them for a long time." Thic, of course, is a bare assertion mide by P.W.l about the V V identification o f the properties fcund in the possession- of the appellant. The question arises whether this is sfficient identificition of. the properties in qiestion, V As a general rule, where ownership or identity of. Oto]en property is in dispute, the prosecution is required to prove V V the identity o f such property beyond reasona1le doubt by. 'V adducing eviL.ence regarding marks or unique features or V ,V particulars on the property by which a witness can identify ' V ' V• •V V V /1 -4- the property with confidence. I am, however, of the condcred opinion that in a cao where ownership or identity of stolen property is not in dispute, then a bare assertion of a witness made on oath about overship or identity of the property in question is suffIcient evidence to establish the fct beyond reasOnable doubt. This jS consistent with common Sense, OiflCC no one is required to give a detailed scscription of anythiag which is not in dispute. In the present case, there is no dispute rog.trding the ovinership or idbnt1itf Ii the crockery found in the possession of the appbllant. The bare assertion made by P.7.1 on oath that the crockery in question was p Lrt of hi3 Ptolen property is

sufficient evidence to establish that fact beyond reasonable doubt0 I torfore find it as a fact that the prorty found in posSeSsion of the appellant was part of the property stolen from P..l. The next point for consideration and decision in this case, is whether. the appellait was properly convicted on both counts 0 The offerce for which the appellant was charged arises under section 296(1). of th,e Penal Code, that i, the offence of breaking into a b1ilding and committing a felony therein. It is a single offence and not two separate offences of breaking into a buildinL on the one hand tnd committing t felony on the other hand. Itwas, therefore, wrong to charge and convict the appeilarit o tvoepaate counts. The appellant shouild have been ch irged and convicted on one count only. The question a'iceS, therefdre, whethe' this irregularity viliates the proceedIngs in tim loner court. I do not think so - because the appellcint knew exactly the nature of the offence which he was fob in'. He Was -therefore not prejudiced and the irregularity i0 curable under section 346 of the Criminal rocedue Code I, therefore, hereby cure the iia'egularity by ietting aside the convictions for -5- breaking into a bilding on the first count and stealing on the second count, and substituting instead a conviction for breaking into a building and stealing - contrary to section 296(1) of the Penal Code.

The consequence of this is to set aside the sentence of Six months' imprisonment imposed on the second count dith regard to the sentence of three yoars' imprisonment imposed by the lower court on the first count, there is nothing that this Court can do, since it is the bare minimum prescribed for the offence under the Minimum Sentences Act, 1972. In the final analysis, therefore, ;iththesë technical modificationS, the appeal is, in effcct dismissed in its entirety. ( P. L • NYALALI )

CHI JUSTICE Delivered in Court at Tanga this 16th clay of May, 1979 9 in the. presence of Mr. Se1ele, learned Principal State Attorney for the Republic and in the absence of the appellant duly notified. ( I. L. NYALALI ) CHIE2 JUSIICE