Rex v Loibori (Criminal Appeal No. 270 of 1948) [1949] EACA 21 (1 January 1949)

## COURT OF APPEAL FOR EASTERN AFRICA

### Before SIR BARCLAY NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika), and EDWARDS; C. J. (Uganda)

**REX.** Respondent (Original Prosecutor)

# LOIBORI s/o TEKINDIKOKI, Appellant (Original Accused) Criminal Appeal No. 270 of 1948

#### (Appeal from decision of H. M. High Court of Tanganyika)

Criminal Procedure and Practice-Information for robbery with violence-Forms of stating offences in Informations, Tanganyika Criminal Procedure Code, second schedule—Section 135 and 138 $(f)$ id.

This case is reported on account of the observations of the Court on the specimen forms used for informations in trials by the High Court.

The appellant was charged with the offence of robbery with violence (sect. 285, Penal Code) and the relevant portion of the "Particulars" in the Information $read:-$

"Loibori s/o Lekindikoki on or about the 17th day of June, 1948, in the Northern Province, did steal . . . . . , etc."

Section 135 of the Criminal Procedure Code reads: -

"Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged."

Section 138 (f) reads: $\mathcal{L}(\mathcal{A}) = \mathcal{L}(\mathcal{A})$

"Subject to any other provisions of this section, it shall be sufficient to describe any place, time, thing, matter, act or omission whatsoever to which it is necessary to refer in any charge or information in ordinary language in such a manner as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to."

The facts appear from the judgment below.

**Held** (19-1-49).—That whilst the information complied sufficiently with the forms set out in<br>the Second Schedule to the Criminal Procedure Code, it is doubtful if these specimen forms themselves really comply sufficiently with the requirements of the provisions of sections 135 and 138 (f) of the Criminal Procedure Code, as it can hardly be said that a reference to what may be a vast territorial area can indicate to an accused person, with reasonable clearness, the place at which it is alleged he has committed the offence.

Appeal dismissed.

Appellant, absent, unrepresented.

### Nazareth for the Crown.

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).—The appellant was convicted in the High Court of Tanganyika of the offence of robbery with violence.

The case for the prosecution turned on the question of identification. The complainant who was the victim of the robbery picked out the appellant at an identification parade, which according to the police evidence, appears to have been fairly and properly conducted. Although the robbery occurred at night, the complainant certainly had an opportunity of recognizing his assailant because the lights of his car were on, and he was engaged in a hand to hand struggle with him. When the complainant reported the matter to the police, he gave a description

of his assailant which included reference to a physical peculiarity of his eyes, which is not inconsistent with the appearance of this appellant. The appellant has not been before us, but the learned trial Judge has noticed in his judgment that, although he himself would not have described the appellant as cross-eyed, he has a squint.

The appellant's defence to the charge was, that on the 17th June, the date of the offence, he was at Moshi, some 50 miles away. He stated in his evidence that he went to Moshi on the 4th June, and remained there until he was arrested on the 9th July; he called a witness to corroborate him. We recognize that it is often difficult for an African native to furnish satisfactory evidence with regard to an alibi, on account of the fact that the usual African countryman has little or no conception as to dates. However, in this case, on the most liberal and elastic interpretation of the evidence given by the appellant's witness, it cannot be construed as providing support for the appellant's assertion that he was in Moshi on the material date. Furthermore, evidence was led by the prosecution which the learned Judge accepted that on a day just before the 17th June, and on the evening of the 19th of June, he was in his native village of Kichenga. Not very satisfactory evidence appears on the record as to the exact distance of this village from the scene of the crime, but there is enough for us to be able to gather that it is within easy walking distance. In this connexion, we observe that the information gave no particulars as to the place of the offence except to state that it occurred in the Northern Province. This was a sufficient compliance with the forms set out in the Second Schedule to the Criminal Procedure Code, but we doubt if these specimen forms themselves really comply sufficiently with the requirements of the provisions of section 135 and section 138 $(f)$ of the Criminal Procedure Code, as it can hardly be said, we think, that a reference to what may be a vast territorial area can indicate to a person accused, with reasonable clearness, the place at which it is alleged he has committed the offence.

The identity of the appellant as to the complainant's assailant having been established to the Judge's satisfaction beyond reasonable doubt, his conviction of the offence charged was inevitable. Both the assessors agreed with the learned Judge on this question of fact. The appeal is dismissed.