Salimu and Another v Rex (Criminal Appeals Nos. 223 and 224 of 1951) [1952] EACA 225 (1 January 1952)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and SIR HECTOR HEARNE (Chief Justice)

## (1) SELEMANI s/o SALIMU, (2) STEPHAN s/o MATOLA, Appellants

v.

## REX, Respondent

Criminal Appeals Nos. 223 and 224 of 1951

(From the decision of H. M. High Court of Tanganyika at Lindi—Miles, Ag. J.) Practice and procedure—Tanganyika Penal Code, sections 265 and 275—Stealing

after a previous conviction.

The appellants were jointly charged and convicted before the High Court of Tanganyika of shopbreaking, entering and stealing cloth and other articles.

The second appellant was further charged in the same indictment with stealing the same articles. The learned trial Judge pronounced no finding on it.

The first-named appellant was further charged in a third count with stealing after a previous conviction of theft contra to sections 265 and 275 of the Tanganyika Penal Code. After his conviction on the first count, this count was read over to him and on his admitting the previous conviction the trial Judge recorded the following order, "Entered as a plea of guilty. I convict accused on his plea under sections 265 and 275 of the Penal Code". The prosecution then produced a certificate of seven previous convictions and the trial Judge sentenced the first-named appellant to seven years' imprisonment on each of the first and third counts, the sentences to run concurrently and to be followed by a period of police supervision.

Held (8-1-52).—On appeal after examining the evidence the East African Court of Appeal $observed:$

(1) The second count was clearly redundant and the trial Judge should have struck it out. It was ordered to be removed from the indictment.

(2) The third count is not a count charging a second or separate offence; it is merely a statement on a count alleging a circumstance of aggravation.

The conviction and sentence on the third count was quashed and subject to the above both appeals were dismissed.

Appellants absent, unrepresented.

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

JUDGMENT.—The two appellants whose appeals we have consolidated were jointly charged before the High Court of Tanganyika with breaking and entering the shop of one Ismail Karimjee and stealing therein a large quantity of cloth and other goods as specified in the indictment. We note that the particulars of this count merely describe the locus of the alleged offence as being "in the Southern Province". Although this conforms with the specimen informations set out in the second schedule to the Tanganyika Criminal Procedure Code it seems to us probable that objection could have been taken to the form of the count on the grounds that it did not set out "with reasonable clearness" the place of the alleged offence and so failed to comply with the provisions of section 138 $(f)$ of the Criminal Procedure Code. However no objection was taken and there is no reason to suppose that either appellant was misled or prejudiced by the brevity of the description. The prosecution evidence disclosed that the shop in question was situated at a place in the Southern Province called Pande and this fact was established beyond dispute.

Both the appellants were convicted on this charge, the first-named appellant bening sentenced to seven years' imprisonment with hard labour, the secondnamed to three years.

The second-named appellant was further charged in the same indictment with stealing the same articles. The learned trial Judge understandably was of opinion that this second count was redundant and pronounced no finding on it.

The first-named appellant was further charged in a third count with stealing after a previous conviction of theft contrary to sections 265 and 275 of the Penal Code. This count was read over to him after he had been convicted on the first count and, on his admitting the previous conviction, the trial Judge recorded the following order "Entered as a plea of guilty. I convict accused on his plea under sections 265 and 275 of the Penal Code." The prosecution then produced a certificate of seven previous convictions and the trial Judge sentenced the first-named appellant to seven years' imprisonment on each of the first and third counts, the sentences to run concurrently and to be followed by a period of police supervision.

The appellants' main ground of appeal is that there was not sufficient evidence to justify their conviction on the charge of breaking and entering and stealing. There was abundant evidence that Karimjee's shop at Pande was broken into and a large quantity of cloth and other goods stolen on the night of 5th-6th. April, 1951, which was the night of the celebration of the Mohammedan feast of Ziara or Maulidi. But there was no direct evidence connecting either of the appellants with this offence and the prosecution rested partly upon circumstantial evidence and partly upon the doctrine of "recent possession". "It is perfectly good evidence of the prisoner being the housebreaker that he is found in possession of property stolen from a house quite soon after the breaking"-Rex v. Loughlin, (1951) 35 Cr. App. R. 69—and the real issue in the present appeal is whether there was sufficient evidence to justify the trial Judge's finding (with which the two assessors agreed) that the appellants were found in possession of any of the property stolen, or whether there were circumstances which pointed irresistibly to them as the thieves.

The evidence which the learned trial Judge accepted established that the two appellants, who live at Nanyanje, arrived at the house of one Abdalla in Pande two days before the feast of Ziara saying that they had come for the celebration. They had no luggage with them. Abdalla's house is about 20 minutes walk away from Karimjee's shop. When Abdalla left his house for the celebration the two appellants remained behind saying that they would follow. Abdalla did not see them at the festival, which lasted all night, and when he returned home at about 11 o'clock the next morning the appellants had gone. He thought this strange as they had not told him they were leaving and did not say farewell as is the custom of guests.

ł.

At about 2 p.m. that same day, the two appellants arrived at the house of one Bakari at Mitole, which is seven or eight hours walk from Pande. They were carrying two large bundles and each had a new black umbrella and a new hurricane lamp. (Two umbrellas and two hurricane lamps were among the goods stolen from Karimjee's shop.) The appellants told Bakari they had come from Dar es Salaam with their bundles and they engaged a porter named Hassani to carry their bundles to Kitomanga. Hassani accompanied the appellants to Kitomanga, spending one night on the way, and was there paid off. The appellants told him also that they had come from Dar es Salaam. Hassani did not see the bundles opened and was unable to say what they contained. $\mathbf{1}$

As the result of information received, Police Constable Robert took Bakari and Hassani to Nanyanje and there, on 6th May (one month after the commission of the offence) Hassani pointed out the first-named appellant, as the man whose bundle he had carried. The appellant denied knowing Hassani. He refused the constable permission to search his house, so the constable sent Hassani to the Police Station for assistance. While waiting for this the constable saw a boy come out of the first appellant's house and throw something into some banana plants. The constable searched and found there a pair of rubber shoes, which he took back to the Jumbe who was present. The first appellant thereupon got up from where he was sitting, snatched the shoes and sat upon them. The first apppellant's house was then searched and a plate, two pieces of Lux soap and a kettle were seized.

Karimiee deposed that these articles and the rubber shoes were similar to articles which he stocked and which had been stolen from his shop.

The following day Hassani pointed out the second appellant, who was arrested. His house was searched but nothing incriminating was found. The next day the constable obtained from a Mohammedan tailor a piece of blue silk which the second appellant had taken three days earlier to have made up into a shirt. The constable also obtained, from one Saidi, a piece of sheeting or shuka which the second appellant had given him in part payment of a debt.

Karimjee deposed that the blue silk and the sheeting were similar in appearance to material which had been stolen from his shop.

We cannot discover in the judgment any clear finding as to whether the appellants or either of them were found in possession of any of the property stolen from Karimjee. On this point the learned Judge says:

"Some articles were found at the house of the first accused but none of them can be definitely identified as part of the stolen property and with the exception of the shoes (exhibit $C$ ) I attach no importance to them. The evidence is consistent with the other articles being the legitimate property of the accused.

The shoes however are a different matter. The first accused called an Indian shopkeeper (D. W. 3) with a view to proving that he had bought them at his shop. This witness, however, after closely examining the shoes, stated that he had never stocked shoes of this type. This evidence is somewhat damning against the accused and may well explain his anxiety to conceal the shoes at the time his house was searched.

There is evidence that a piece of blue silk cloth (exhibit D) was delivered by the second accused to a tailor (P. W.9) to be made into a shirt. The accused's defence was that this was bought from a shopkeeper Yusufali Juma (P. W. 10). This witness stated that he had had no cloth of this type since Christmas.

The accused's wife stated that the cloth had been in the accused's possession for some nine months. This would more or less tally with the shopkeeper's evidence. The only significance of the prosecution evidence with regard to this cloth is that it was evidently delivered to the tailor after the date of the theft."

It seems to us that this passage shows that the learned trial Judge was not satisfied beyond reasonable doubt that the Crown had proved recent possession of any of the stolen articles and that, had the matter rested there, he would not have convicted. Indeed he goes on in his judgment to say:-

"The crux of the case however is the evidence of Abdulla Saidi, Bakari and Hassani. If this is accepted there is in my opinion an irresistible inference that the accused are the persons who broke into the shop and stole the property."

The appellants denied that they had been at Pande for the festival, as alleged by Abdalla and set up alibis which broke down and which the trial Judge rejected. The appellants also flatly contradicted the whole of the evidence of Bakari and Hassani.

Sitting as a Court of Appeal it is impossible for us to say that the trial Judge and the assessors were wrong in accepting the evidence of these witnesses and it is equally impossible for us to say that there was no evidence to found the conclusion they reached, or that that conclusion was, in all the circumstances of the case, unreasonable or against the weight of evidence.

We desire to add some observations on the subject of the counts in the indictment and the conviction of the first-named appellant on two of these counts.

We share the learned trial Judge's puzzlement at the inclusion of the second count which was clearly redundant. It is not, however, satisfactory to have it left on the file undetermined and we think the Judge should have struck it out. As we can exercise all the powers of the Court appealed from, we order that it be removed from the indictment.

As to the third count the learned trial Judge was of opinion that this should not have been entered as a separate count but should have been added to the first count and he referred to section 262 of the Criminal Procedure Code of Tanganyika, 1945. That section however relates only to the procedure to be folowed "where an information contains a count charging an accused person with having been previously convicted of any offence" and it is clearly provided in section 138 (h) of the Code that where a previous conviction of an offence is charged in a charge of information, it shall be charged "at the end of the charge or information by means of a statement that the accused person has been previously convicted of that offence at a certain time and place without stating the particulars of the offence".

$\cdots$ . Technically it may be correct to regard this statement as a separate count, but whether that be so or not, it is quite clear to us that it is not a count charging a second or separate offence: it is merely a statement or a count alleging a circumstance of aggravation, i.e. a previous conviction, which, if admitted or proved, authorizes the imposition of an enhanced sentence. This is all that section 275 of the Penal Code effects; it does not create a separate offence. It follows therefore that the trial Judge was in error in convicting the first-named appellant on the third count as for a separate offence, and we therefor quash the conviction and sentence on that count.

Subject to this, the appeals of both appellants against conviction and sentence are dismissed.