19800828 TZHC Tabora

L / IN THE HIGH COURT OF TANZANIA AT TABORA APPFLLITE JUr'IDICTION p (T.abora Registry) 7 14 j.- (Hc) CRIWtNAL ApE1cL i'io. 93 OF 197 icr OF AT'P 92/9 - , ; ..ORGIN?L.CR'IMi1'JAL, CJ1SE 1979 . OF THE DISTRIcTCouRT?F Ar lTRITAT SURAMBO J. Before J.- MwriI .... Esq. Senior Magistrate ()AHMED SAIDI (2) ADEN ISMAEL4 4. APPELLANT . . . (original Accused) S. . ........5.-' ersus: . S THE REPUBLIC .... RESPONDENT CHARGE: 1st Count'-for 1st Accused only:— Being unlawfully present in Tanzania c/s 26 (1) (i) and 26 (2) of the Imrnir a ti 0 n.Act No0 8 of 1972. 2nd Count fO*dth. Accused Persons:- Unlawfully engaging in business without being in possession of a esidence permit c/s 26(1)(M) and 26 (2) of the Immigration Act No. 8 of 1972. U D E M E N T N.M. MUSHI, J: The two p5.3.'.1ants - -Ahmei Said and Aden Ismail, whose appeals have been consoLidzite'd re cr d under Immiqrtin -Aet. The fIrst appellant - Ahrned wao :harned on the first count of being unlawfullr presen - E in Tanzan c/s 26 (1) Ci) and 26 (2) of Act. No. 8 of 1972. lji1e on th soc'nd count both •Zt and 2nd appellant were charged for '.'i.nlawfully aqinq i n busines3 without bein in possession of resf.dence permli '/s 26 (1) (M) and 2 (2) of the same Act. The fst appellant cQnvicted on both counts and was fined shs 0 51 OO/= or twc years imprisonment on the first count and Shs. 2,0001 ''r one year imprisonment in defaults The second appellant was .fin(d Sh. 2)OO/ on the second or one year imprisonment in default, They are appei1ling ajainst •such conviction and sentence. The grounds )f .appea2. are mainly two. The first one is that the conviction w'j had in1 law as tere was no evidence to base such conviction, Sec .d grou ,id i hL .hc sentence was manifestly excessive. Regari'ing tI- first ground of appeal, it is not disputed at all that at mate ..:jal time the two appellant were running a hotel at Urambq. It is also not disputed that at the time the Police approacherui the appellants, they did not have the relevant documents, . -: 2. The first app at"thrnd CO d...t.prpdue doëuments showing that he is a citizen of Tanzania as he claimed. imilarly the. second appellant - Aden did not produce documet's showing that he had a resident permit alth.Quqhbe had applied for one 0 The:claim by the first appellant that he was citizen of. Tan8p1a was proved untrue by hs own birth certficae which clearly states that both his,ftherand mother were Somälis by nationa1ty. There was no evidence that any of the first appellat s parents was horn in Tanzania0 The burden was on the first appellant to adduce such evidence. The 1errd trial. ..hagstrate found the prosecution case fully proved in respect with the first appellant in both counts0 On the evidence, the trial magistrate was fully justified to come to that conclusa,on Similarly with the 2nd appellant. He was a foreignQrJle had not been issued with a resident permit but he engaged in'business or- worked for qain. -This was a beach of Immigration law. His conviction was fully justified. The appeal against conviction for both appellantsi.dismissed. Regarding thE sentence, it is high but there are no good grounds fOr:this court to interfere with the dis dfion of the trial magistrate oñth'e sentence In the finn analysis, the• 1appea.s are dismissed. Judgement read. Ii,charnhers in the presence of he Cbiia-State Attorney. . . . N.M. MUSHI, . . JUDGE. 28/8/80 /MEA. 0•.. CERTIFIED ¶IRUE COPY OF THE - DISTIZGISTRAR • . .. .. ..