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_______________-V •° -w-,- '--'w:;--- IN THE JIGH COURT OF TJNZNIAAT ARU3HA -. APPELLATE J1JRISDCTION • HIGH. COURT CRIMINALAPPEAL NO0 285 OF 1974 HIGH COURT CRIMINAL APPEAL NO0 '286'bP 1974 ORIGINAL CRIMINAL CASE. NO 280 OF 1974 OF TIE DISTRICT COURT OF TANGA DI - TRICT AT TJ'JGA.. Before A.C. Nreme, Esqo, Resident Magistrate ' JOHN ISAYA . •. . .. APPELLANT ind (Original Accused) SALUM ALLY versus THE REPUBLIC RESPONDENT (Original Prosecutor) JUDGMENT .: MAKAME, J. The apphais:by.these two 'people atlealy Wort They each gotqfour y ars cutOdaal confinement upo bing conìvicted for Being found in possession of housbr am1 .rj at thight, contrary to Section 298(c) of the Penal Code. The learned trial.Magistr'.'te believed the evid nce of a member of the People's Militia, P.W I MAMBUA SAIDI, that at about 4 a.m on 24/4/74 he saw the two appe1lants a,the doprplace of a house near the market P.W I was armed with a -gun ind when he asked them what they were doing they trembled and threw down some objcts which the witness could not at first identify as it was still dark but whose oind. he heard. He cmmanded them to draw near, which they did, whereupon the three were joined by another member of the People's Militia. As the Militia men were walking th appellants they came across some C.I.D. officers to whom they related the encounter0 The Policemen took their company back to the house where they appellants had been found and where, with the aid of a torch, were seen an iron bar, a torch, a screw—driver and a panga. P0W4 MJKATA K1.TUGA living in the house, told the Court the things did not belong to anyone in the house. In the circumst.nces the learned Resident Magistr'te held the objects to be housebreaking instruments and ± am unable to fault that view. In defence the appellants asserted that they had in fact been on their way to catch a bus to Lushoto, which story failed to impress the learned trial Magistrate and which, in my view s cannot at all persuade, in the light of the believed testimony of Pow 1. The decision was eminently reasonable in my opinion and my learned brother Jonathan admitted Isaya's app.al mroly so as to consider one nspct of the sentence imposed; The appellant Isaya was aaid to have seven previous convictions and a P.F. 18C form to the effect was produced. He was not asked whether or not he admitted the convictions and, with genuine respect to Mr. Osinde, learned State Attorney, who appeared in resistance of the appeal, I am unaile to accept the argument that it was enough that the appellant did not challenge the record produced0 The recofd of previous conrictions should have been put to the appellant fr',1im to admit or deny. This was particularly important as the trial court invoked a certain provision in Section 290 which relates to convics "prevlosiyccovicted of a felony relating to property". According to the record, the first appellant had previous convictions for Theft, Burglary and Robbery but, as I have observed, the appellant was .nev r asked if he admittd them. The scond appellant, SAWN ALLY, on the other hand, volunteerd the information of having been previously S -. - -- -2- convicted for Being in -Foession of 'prbptty Suspected to have been stolen, so it was airight in his case In theia8t anaiysis:, however, the issue would appear to be somewhat academic, given the fact that there is no statutory minimum sentence in such asitutien0 The learned trial Magistrate imposed a sentnce of 4 -years on 5ach accused, which•was in -fact - below th.e ma*imumallowd even fora convict without a previous relevant rcord. I do not propose to disturb the sentences im:-osed and so both appeals, -are totaly- dismigseth • . : At 'thr risk of appearing to be a bit fastidious I wish to point out the following small matters: Not that oiaeecessarily.attaches more importance to the English Inguage than to othr languages but, as long as our court rco dsre in that particular language it is not a bad idea to';ehdeavour to express oneself well in it I had nevar before-come across any sentance in the English language which starts with the word "Him", and it snould nat be undu 1 y difficult to gt the spelling of the word shaky" right0 In the lower courts. judgement the word was at first spelt correctly and:then 'improved' cny-the addition of the letter 'c' between 'a' and 'k'. Secondly, the5 learned NagistratL should plcsc try to make sure that he brings his working teds 6p-to-date0 In June 1974 he talks of the ordinary maximum sentnce fr an offence un tar , 3ecti n 298(c) as beang 3 years0 This was of course wC]l out of. 1°t , the ordinary maximum sentence at the material time havinc' bean raisd to 5 years SO me twenty tight (28) months oarliLr. Lstly, with respect, th.l occasion of imposing sentence should not be used as an opportunity of furtht. r rcvi wing the evidence on rcori or expressing an opinion rn it (L0n. NAKAME) JUDGE /GKK1m athi