Ileme v Rex (Criminal Appeal No. 222 of 1951) [1951] EACA 317 (1 January 1951)

# COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Barclay Nihill, President, Sir Newnham Worley, Vice-President, and SIR HECTOR HEARNE, C. J.

### MYANO s/o ILEME, Appellant

## REX, Respondent

# Criminal Appeal No. 222 of 1951

(Appeal from decision of H. M. High Court of Tanganyika at Musoma—Mahon, J.)

Information—Counts 1 and 2 attempted murder—Counts 3 and 4 Arson.

The appellant was charged on an indictment with four counts—the first two were for attempted murder and the third and fourth for arson. There was evidence on which appellant could have been convicted on each count of the indictment. If the facts of a case disclose two offences involving two acts the accused may be charged with and punished for both but if all facts amount to one act and no more he can not be punished twice for that act.

Held (21-12-51).—Appellant could and should have been convicted of arson and attempted murder. Sentences should have been imposed thereon.

Appeal dismissed.

Cases referred to: Salim bin Karama v. Rex (Criminal Appeal 200 of 1951); Hassani bin Makatete v. Rex, 3 Tanganyika Law Reports 24.

#### Appellant absent unrepresented.

### Sir James Henry, Ag. Solicitor General, Tanganyika, for the Crown.

JUDGMENT.—The appellant was arraigned before the High Court of Tanganyika on an information containing four counts. The first two counts charged him with attempted murder of two persons, who were the complainant in the case and his wife. The third and fourth counts charged him with the offence of arson in respect of two separate houses the property of the complainant.

The appellant has always protested and still does in his Memorandum of Appeal that he had nothing to do with the firing of the two houses on the night in question. The learned trial Judge, however, had before him evidence which, if believed, and it was believed by both Judge and assessors, established that the appellant was seen at night by the complainant Kibisi in the act of setting fire to a house six paces away from the latter's house, whose own house was burning at the time. The complainant's wife and another witness deposed that when the alarm was raised the complainant shouted out that the appellant had set fire to his house. There was also evidence that whilst the appellant's children came from his house which was nearby to assist in putting out the fire the appellant himself did not put in an appearance. As the learned Judge believed Kibisi it is impossible for this Court to hold that there was not sufficient evidence for his finding that the appellant was the man who fired both houses. Similarly there was evidence which the learned Judge accepted from which he was entitled to infer that the appellant must have known when he set fire to the complainant's house that the complainant and his wife Msaga were sleeping inside it. Indeed there was evidence which pointed clearly to the appellant's murderous intentions because Kibisi on waking up found that the door of his house had been secured on the outside and Msaga gave evidence to the effect that she gave her husband a knife to cut the rope which

enabled him to open the door. There was evidence therefore on which the appellant could have been convicted on each count of the indictment for as was held in Salim bin Karama's case (Criminal Appeal 200 of 1951) if the facts of a case disclose two offences involving two acts the accused may be charged with and punished for both, but if all the facts amount to one act and no more, he can not be punished twice for that act.

In this case the accused could and should have been convicted of arson and attempted murder on proof that he not only set fire to the house but he secured the door to prevent the escape of the inmates. The learned Judge chose however to convict him only on the two counts which alleged the attempted murder of Kibisi and Msaga and he said nothing about counts three and four which remain on the file. Possibly he regarded them as alternative charges to counts one and two, but the charges on the information were framed as cumulative which indeed they had to be, to conform with the provisions of section 136 (1) and (2) of the Tanganyika Criminal Procedure Code. (See also Hassani bin Makatete v. Rex 3 Tanganyika Law Reports, 24.) We think therefore that the learned Judge should formally have convicted the appellant on the third and fourth counts, and imposed sentences thereon which he would doubtless have made concurrent with the concurrent sentences he imposed on the first two counts. We call attention to the matter as the Crown will doubtless wish now to enter a *nolle prosequi* in respect of the arson counts.

The appeal is dismissed.