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(1969) H.C.D - These digests will be cited thus


(1969) H.C.D



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Sofia was taken to Hospital. The medical certificate reveals that Sofia had a fracture dislocation of the fibia and multiple bruises on the frontal aspect of the neck, but no sperm was discovered in Sofia and she did not apparently suffer any wounds around her genitalia.

Held: The question was whether there was sufficient corroboration. “The Republic felt that is was arguable in the absence of clear medical evidence, that the destruction of Sofia’s clothing and her injuries were attributable as much to the robbery as to the alleged rape. It might depend on where Sofia had kept her money. It was, she said, in her pocket. If that pocket was in her underwear, then that might account for the state or her torn underclothing, and the manner in which she was found sitting. If it was in her gown on the outside, then there would seem to have been no cause for her under wear to have been torn, and that would afford some corroboration that a further offence had been committed. It is not in evidence from where the money was taken. I agree that the evidence was such that it is difficult to be sure, whether Sofia really was raped or badly injured when being robbed. Although it may well be that she is right that both offences were perpetrated it is not even clear when or how her leg was fractured. It is not said that it was due to the rape alone. As there seems some doubt, I shall allow the appeals and quash the appellants’ convictions and sentences on the first count. Their convictions on the second count however are affirmed.”

67. Leornard David Chamba v. R., Crim. App. 706-D-69, -/10/69, Mustafa J.

The appellant was convicted on one count of attempting to obtain money by false pretences and one count of obtaining goods by false pretences. Appellant was an assistant secretary of the National Housing Corporation. Ahmed Ali Shirwa had applied to the said corporation for the allocation of a house on a tenant/purchase basis. Appellant falsely represented to Ahmed Ali Dhirwa that his application had been approved, and obtained from him a cheque for Shs. 2,000/- drawn in favour of the National Housing Corporation as a deposit. It appears it is not unusual for an intending tenant to put down a deposit at the time he makes an application for a house. After he had received the said cheque for Shs. 2,000/-, appellant took it to the National Housing Corporation and attempted to cash it. He made false representations to the accountants and other officials of the National Housing Corporation was in the process of clearing the cheque, but before appellant was paid. Ahmed Ali Shirwa made inquiries about a receipt for his cheque. It then transpired that he cheque made out by Shirwa was in favour of the National Housing Corporation, and appellant was arrested. When appellant handed the cheque to the cashier of the Housing Corporation he was in the usual course of business issued with a receipt for the said cheque for Shs. 2,00/- and it is in respect of this receipt that the second charge was preferred against him. There are two relevant grounds of appeal. Learned counsel for appellant states the conviction is bad in law, since the charge did not lay the money or the goods as the property of anyone. Secondly, the trial magistrate had admitted evidence which had the effect of establishing that the appellant was the type of person who would make false representations and is of bad character.

(1970) H.C.D.



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Held: (1) “As regards the first ground of appeal, learned counsel for the appellant states that it has not been alleged as regards the first count whose property the sum of Shs. 2,000/- was. He relies on two old English cases, The Queen v. Martin, 112 English Reports 921 at page 923, and The Queen v. William Marsh and James Bell Lord. 169 English Reports 348 …. In my view, a charge has to specify with sufficient certainty what a person is charged with. Here appellant was charged with falsely pretending that the cheque in question which was issued in the name of the National Housing Corporation was for him although in fact the said cheque was for the said Housing Corporation. I think it is clear enough to appellant what he was being charged with. I am not persuaded in a charge of false pretences it must be stated to whom the gods belong. The authority quoted by learned counsel refers to obtaining goods by false pretences under an old statute, 7 & 8 George IV. I very much doubt if it is still good law; in any event I am not prepared to follow it. Section 302 of our Penal Code …. Is more in line with the Larceny Act, 1916, of England. I have not been able to obtain a copy of the statute of 7 & 8 George IV clause 29 section 53, but in Archbold, Criminal Pleading Evidence and Practice, 35th Edition, in dealing with the offence of false pretences under the Larceny Act, 1916, it is stated in paragraph 1938: “Ownership of the gods need not be alleged, nor intent to defraud any particular person: Indictments Act, 1915, Sched. 1 ….” I do not think therefore this particular ground of complaint is valid these days, and as I red section 302 of the Penal Code I am of opinion that it is not fatal to omit mentioning to whom the money belongs.” (2) “As regards the second ground of appeal, that a considerable amount of inadmissible evidence was admitted, which must have prejudiced the appellant, learned counsel draws my attention to evidence adduced which relates to false pretences or false representations made by appellant to Ahmed Ali Shirwa ….. Learned counsel states all these pieces of evidence had the effect of showing that the appellant was a person who would go about making false representations made by appellant to Ahmed Ali Shirwa ……. Learned counsel states all these pieces of evidence had the effect of showing that the appellant was a person who would go about making false representations. He sys appellant was not charged with making false representations to Ahment Ali Shirwa and all this evidence was irrelevant and inadmissible, and would be evidence of bad character and could have prejudiced the appellant … am not persuaded this is so. In my view the evidence which has been adduced rooms part of a pattern and the evidence is a part of the same transaction resulting in the presentation of the cheque by the appellant to the Housing Corporation. It is true appellant has made false representation to Ahmed Ali Shirwa as well as to the Housing Corporation, but in my view the false representations to both the parties are so interconnected that the false representation made by the appellant to Ahmed Ali Shirwa would be relevant and admissible; see section 8 of the Evidence act. I do not agree that the evidence objected to by appellant’s counsel was inadmissible under section 56 (1) of the Evidence Act in the circumstances. (3) “As regards the second count, that of inducing the said Corporation to deliver to appellant a receipt in his name valued at 20 cents, there is evidence that appellant had never asked for the receipt to be issued. He merely handed over the cheque to the cashier, P.W. 9 P. Mwasabwite, and P.W.9 was instructed by P.W. 5 Francis Figuereido to issue a receipt to the appellant. There is evidence to show that whenever any money or chegue is handed over to the National Housing Corporation a receipt is issued. P.W. Francis Figuereido has said he sent the receipt with a messenger to the appellant, and the appellant has not challenged that piece of evidence. The trial magistrate in his judgment said: “I find it as a fact that the accused, knowing the Corporation’s regulation. Expected to receive the receipt on the presentation of the cheque.

(1970) H.C.D.



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The appellant was a senior official of the Corporation, and although he did not demand a receipt he knew he would be issued with one. The trial magistrate said: “He therefore must have known that he would be issued with the receipt by presenting the cheque. This was therefore representations by the accused by his conduct …..” I tend to agree.” (4) Appeal dismissed.

68. Yusufu Salehe v. R., Crim. App. 717-D-69, 31/10/69, Georges C. J.

The appellant in this case was jointly charged with Abdu Mohamed with offence of being in possession of house breaking implements by night without lawful excuse c/s 298(c) of the Penal Code. It was alleged that they were found with the implements on 18th May 1969 at Mnazi Moja. Abdu was in possession of a bunch of keys and a piece of timber shaped like a wedge and the appellant with a single key and a similar piece of timber. They were both convicted. Two policemen testified that on the night of 18th May they were on duty at Mnazi Moja when they saw the accused persons coming towards them in the park. The policemen were suspicious and searched them and found on each of them the articles already mentioned on the charge. Neither accused gave any explanation for having these implements with him. The policemen explained that the wedge could be pushed in between the frame of a door ad the door itself to make a space to enable the door to be levered open, while the keys could be used to open such doors as they might happen to fit. When called upon by the magistrate in terms of section 206 of the Criminal Procedure Code both said that they had nothing to say and that they had no witness to call.

Held: (1) “On appeal it was urged that the trial was itself a nullity because the two accused persons should not have been jointly charged. Section 137 of the Criminal Procedure Code states that the following persons may be tried together on one charge or information, namely: - (1) persons accused of the same offence committed in the course of the same transaction; (2) person accused of an offence and persons accused of aiding and abetting them: and (3) persons accused of different offences committed in the course o the same transaction. There are two other categories of persons laid down in the section which are not relevant in the circumstances of this case. Mr. Shukla argued that the two accused persons in this case did not fall into any of the three categories. They clearly did not fall within category (2). Since each accused person was found with separate implements on him it could not be said that they were accused of the same offence committed in the course of the same transaction, so that they did not fall within category. (1). It is my view, however, tat they fell within the third category – that is persons accused of different offences committed in the course of the same transaction … it is clear ….. that the two persons ere together and that they answered together, giving similar explanation for their presence in the park. On this I think one could justifiably find that he two accused persons were engaged in the course of the same transaction. The fact that similar housebreaking implements were found on them would help to fortify this inference, particularly when it is borne in mind that hey gave no evidence in denial or in explanation.” (2) “Mr. Shukla also argued that since the keys and the wedge were not in their very nature housebreaking implements, proof of an intention to use them as such was needed. He contended that no such intention had been proved in this case ….. I agree with the proposition that where an instrument is capable f being used for house breaking although ordinarily it can also be used for lawful purposes, as for example, the house door keys in this case

(1970) H.C.D.



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And the wedges of wood which could be used for keeping a door open, one can only be found guilty of being in possession of housebreaking implements within the meaning of the Code if from the circumstances of possession an inference can be drawn that there was an intention to use the implements for housebreaking. Whether or not such an inference can be drawn in a question of a fact …. I see no reason for differing from the Senior Magistrate who quite clearly thought that the circumstances under which the appellant was found in possession of the implements indicated an intention to use them for the purpose of housebreaking.” (3) “Finally Mr. Shukla urged that the Senior Magistrate should have explained to the appellant that the burden of giving an explanation for his possession of the articles was on him and that he could be convicted if he failed to do so. He quoted a case dealing with the obligation of the Court to explain fully to the accused person the ingredients of an offence before accepting a plea o guilty. I do not think the authority is relevant in the circumstance of this case. Section 206 of the Criminal Procedure Code sets out what the magistrate out to do. At the close of the case for the prosecution. The magistrate must explain again to the accused the nature of the charge and inform him of his right to give evidence on oath in the witness box, his liability to cross examination if he does so and of his right to make a statement not on oath from the dock. He must also inform the accused of his right to call any witnesses if he wishes to do so. It may be very dangerous to depart from the prescribed procedure laid down in this section and to attempt to explain to an accused person matters dealing with the burden of proof. There is a strong possibility that it may be argued then that the magistrate was in some way exercising pressure on the accused to induce him to give evidence when he did not wish to do so. In the course of giving evidence the accused may well strengthen weaknesses which may exist in the case for the prosecution. The charge in this case was being found by night in possession of housebreaking implements without lawful excuse. If this was explained to the accused and if he was told that he had the right to give evidence eon oath or to make a statement from the dock if he wished then it must have been obvious to him that he could take advantage of that opportunity to set up any lawful excuse which he might wish to give. I do not think his failure to do so can be blamed on the magistrate.” Appeal dismissed.

69. Eliah s/o Mwafura v. R., Crim. App. 712-D-69, 7/11/69, Georges C. J.

The appellant was convicted of shop breaking and stealing c/ss 296 (1) and 265 of the Penal Code. the appellant was first charged in Cr. Case 134?69 together with Haruna Kasinlaya, who was P.W. 3 in this case and Aden Mwajana who was acquitted at the end of that trial. At the close of the case for the prosecution then the police applied for leave to withdraw the charge against the present appellant under s. 86 of the Criminal Procedure Code. The trial magistrate gave leave and the appellant was discharge. At that stage none of the witnesses for the prosecution had established any connection between the appellant and the stolen property.

Held: “Only in the most exceptional circumstances should the prosecution be allowed to withdraw a charge under s. 86 after they have produced against the defendant all the evidence available to them up to that time. If for some reason or other the evidence is inadequate, or some vital link which ought to be established has no in fact been established, the more appropriate course would be to grant a short adjournment in order to allow witnesses to be produced to establish any matter which needed to be established. Be that as it may, however, the prosecution was

(1970) H.C.D.



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well within its rights once leave had been granted to lay the present charge and to proceed with it.” Appeal allowed on other grounds.

70. Mpagama s/o Chalo v. R., Crim. Sass. 50-Dodoma-69, 14/10/69, Hamlyn J.

The accused is charged with the offence of murder, contrary to Section 196 of the Penal Code. the accused at the material time, was married to one Violet and had been her husband for some time. In about July, 1968 there had been a quarrel between the accused and the deceased and as a result the woman had returned to her father. The accused visited the father of the girl and asked him to re-pay the dowry of a number of cattle and goats which the accused had paid to him at the time of the marriage. The old man (who was alleged as a witness for the prosecution) informed the accused that he had not the cattle to pay to the accused. He told the court that he privately thought that perhaps his daughter would re-marry and that from the bride-price which he obtained from the next husband he would be able to repay the accused the debt which he owed to him. The deceased daughter obtained a divorce from the local Primary Court and continued to live with her parents. On the day of the homicide, the accused met Violet some place in the bush, and she was with her new “boy-friend”. He chased the man, who escaped, and thereafter chased Violent and stabbed her, killing her. The main question before the court is whether there was provocation such as to reduce the offence from murder to manslaughter.

Held: “Almost all the facts not being in dispute, a decision in this matter falls directly within the scope of Gogo law-all the parties (the accused, the deceased wife and the assessors) being of that tribe. The matter for decision is a very simple one and this I put directly to the assessors in my summing up. Where a divorce has been established by an act of a competent court and the woman returns to her parents, but the parents do not re-pay the bride-price, does any matrimonial relationship still obtain between the former spouses pending re-payment of the dowry? If such relationship still exists, to what extent will it enable the husband to control the acts of his former wife? The assessors asked for time to consider this problem and this was accorded to them. When the court re-convened, they gave their opinions and these are on the record. In brief, the local opinion of the questions put to them is this. Until re-payment of the dowry, the woman still owes duties to the former husband, though she may be living with her parents, she cannot form association with other men, and it seems, is still in some way bound to the husband, despite the divorce decrees having been promulgated by the court. The assessors went further and advised that, if the husband finds the woman to be I association with another man, this would be a cause of provocation and would suffice to reduce the act which would otherwise be murder to mere manslaughter. It appears from the opinions of the two Gogo assessors that it would not be necessary for the husband to catch the former wife in sexual intercourse with another man, but he mere fact of her being in his company during the period prior to re-payment of the dowry, would suffice to reduce the offence to the lesser form of homicide …. I find …., in conformity with the opinion of the two assessors, that the sudden finding of the woman Violet in company with this man (and for the purposes of this Judgment it is unnecessary for me to find that they were having sexual intercourse when they were discovered) sufficed to provoke the accused that in his fury, he knifed the woman. Such act in the
2014-07-19 18:44
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