19750409 TZCA Dar es Salaam2

ILL- ' ' .

THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NOo 219 OF 1974 Original Criminal Case No. M 662/74 of 1974 of the District Court of Dar es Salaam District at Maktaba, Dar es Salaamo BEFORE: Mo Ao UPAGA ESQo, District Magistrateo JUMANNE s/o SAIDI o o o a o . a o a o ., o o .. o o o 0 APPELLANT Versus. THE REPUBLIC o o o o a 0 O O O O O 0 o o • o o o o o RESPONDENT CHARGE: stealing from a Motor Vehicle c/ss 265 and 296(c) of the Penal Codeo

J U D G ME N T BIRON, Jo The appellant was convicted of stealing from a motor vehicle and he was sentenced to imprisonment for eighteen monthso He is now appealingo Evidence was given by the complainant to the effect that on the· evening of the 6th June at ahout 7 o30. porn• as he was returning from the University, his car broke down in Kigogo Roado After closing the windows and locking the doors of his car, the complainant went back to the University for assistance and he got a lift back to where he had left his caro He was away for about forty-five minutes to an houro On returning to his car he found that a door was open and there were missing, the spare tyre, his cheque book, a wristlet watch and a couple of books. He duly reported the theft to the police after first calling at his bank to stop payment on the cheques in his cheque book. D/sgt. Hassan testified that on the 12th June, he received information that the appellant had in his possession tyres for saleo He immediately went to the appellant's house together with the informer, and he was shown the appellant who brought .out a tyre from his houseo But on seeing and apparently stispecting the witness, the appellant threw down the tyre and ran into the bush say1ng that he was going to answer a call of nature. But he did not re-appear. It should be noted that it was at night timea Early in the following morning the

witness again went to the appellant's house armed with a search warrant and in the presence of the ten cell leader and the appellant's father, he searched the appellant's bedroom, and therein he found and seized a cheque booko The complainant subsequently identified both the tyre and the cheque book as.his and stolen when his vehicle was broken into after it had broken down on the Kigogo Road. A bank supervisor of the Morogoro Road Branch of the National Bank of 'Commerce identified the cheque book as having been issued by his branch and he gave the names of the three owners of the cheque booko It should be noted that the complainant shared a joint account with two other personso oooe/2 I pause to remark that in recording the evidence of the bank supervisor, the magistrate merely stated: "The account belongs to three people. (Witness reads the three names)". The magistrate should have set out the three names, not merely have contented himself with stating that the witness read out the nameso Although in his judgment the magistrate in referring to this witness, the bank supervisor, stated and I quote: "Gilaria (PoWo3) a bank supervisor in the National Bank of Commerce Morogoro Road. Branch confirmed to the court that the cheque book in question was issued by his Branch in the complainant's account which included two other persons", aro I have no reason to doubt the magistrate's

veracity, even so, as he will doubtless appreciate on · reflection,. the record of the evidence of the bank supervisor should have contained at least the name of the complainanto However, the lacuna in the record of this witness' evidence is probably filled in by D/Sgt. Hassan, who stated that after finding the cheque book in the appellant's bedroom he got in touch with the Morogoro ·Road Branch of the National Bank of Commerce, where he was given the name and _the telephone number of the complainant, and he accordingly telephoned to himo In any event, the identification of the tyre and the cheque book which were identified by the complainant, is not disputed by the appellant. His defence which he elaborates in his petition of appeal, would appear to be that the search of his bedroom was illegal in that he was not present at the timeo With regard to D/Sgto Hassan's evidence that he attempted to sell him the tyre, he contends in his petition of appeal, that such evidence requires corroboration and it was not corroborated by that of any other witness. To deal with the latter submission first, the evidence of D/Sgt. Hassan neither in law nor in practice requires corroborationo With regard to the search of his bedroom being illegal because it was done in his absence, &as noted, both the ten cell leader and the appellant's own father were present at the timeo Although

the appellant's father did not give evidence, the ten cell leader, who it transpired; was the appellant's own grandfather, gave evidence that he was present when the appellant's bedroom was searched and the cheque book was foundo The absence of the appellant at the search does not, in any way, affect the propriety of the·search 0 And for the benefit of the appellant, it is pointed out that even if the search was illegal, the cheque book found in the appellant's bedroom would still be admissible in evidenceo As I think sufficiently demonstrated, the conviction is fully supported and justified by the evidence on my evaluation of it 0 With regard to the sentence, in view of the prevalence of the offence, it errs on the lenient side. But in view of the time such action would take, I do not propose to have served on the appellant notice to show cause why the sentence should not be enhanced for as laid down by the Court of Appeal for East Africa such noti~e is indispensableo The appeal is accordingly dismissed in its entiretyo And the sentence which requires confirmation by this Court, is hereby confirmed 0 Delivered in Court at Dar es Salaam this 9th day of April, 1975 o ~~~~ PHILIP B!1{0N

JUDGE