Salumu Hassani Shekhe vs Republic (Criminal Appeal No 73 of 1999) [2000] TZHC 480 (11 October 2000)

KAJT, J., lN THE HIGH COU11T OF TANZli.NLi. · ilT MTWii.RA

&FELLATE JURISDICTION (MTWiill.ii. REGISTRY) CRIMINiiL .APPEAL NO o 73 OF 1999 ORI GINli.L CRIMINJJ.L CASE NO.. 272 OF 1999 OF ·r-HE DISTRICI 1 COURT OF MTWARA T MliTWARA BEFORE: SoHo ICTNEMELAs ESQ .. , RESIDENT MAGISTRATE SliLUMU H.M3SANI SHEKHE .. ., .. o o o .. lPPELLilNT versus: THE REPUBLIC.,.,.,.,.,.,.,.,., .. .,., .... RESPONDENT JUDGMENT

The appellant · Slil.,UMU Hi~~ @ SJi]t~ was charged with two counts, namely:- 1st Count: House breaking c/s 294(1) of the Penal Code Cap 160 ---- ... -- 2nd Count: Stealing c/s 265 of the Penal Code Cap 160 ....... ,w...- He denied both countso However at the end of the day he was found guilty as charged and was convicted e,ccordingly., He was sentenced to 5 years imprisonment on the first Count apparently under the dnimum Sentences Act, 1972.. He vrns sentenced to 3 years imprisonment on the second coun-t;., Both sentences were ordered to run concurrently., It was alleged by the prosecution that PW1 YUSUFU BAKARI """'·· --""'- is a resident of Msimbwa in the town of Mocimboa da Praia in Cabo Delgado Province in Mozambique. where .he ovms a houseo . He has also another house fm- in the village where his wife used to stay during farming and probably harvesting pcriodo .' The appellant and PW2 HAMISI MZARUBU are residents of ____...... _ ___,~ Mtwara Town in ·I'anzaniao Both used to do some petty businesses in Mozambique especially in Mocimboa da Praiao In the course of their business FW2 Hamisi managed to come in contact with • PW1 Yusufu and got acquiri.nted to each I othero PW1 Yusufu managed to tell PW2 Hamisi that he was in need of somebody with knowledge in Video showo PW2 communicated· that information to the appellant who told him he knew the job

2 and was ready to do it. On 14a6 .. 99 PW2 Hamisi took the appellant to PW1 Yusufu and told him he had assured him he.knew the job and wa.s ready to.do it .. PW1 agreed to take him for that jobo The appellant lived with PW1 in his house peacefully for about 4 days. On the 5th day, that is, on 1906099 PW1 left for buying provisions at the market. He left the appellant alone at his home as his wife w£1.s in the village home. He locked his bedroom before he left for the market. Everything his bedroom was intact. When he returned he found the appellant missng. In checking the door of his bedroom he found it had been broken •. When he entered his bedroom he found the drawer of his cupboard had been broken and the 1_61.,0.QO,Q..OO metias which were there were missing. He reported the matter to the Police .. Fortunately PW2 Hamisi who had left for Tanzania, returned on that day. Since he lvas the one who had introduced the appellant to him he was arrcstedo .fl. see..xch for the appellant began .. On 2.7.99 PW2 Hamisi received information that the appellant had been seen a.t Pemba in Mozambique with a new motercycle and was heading back to Tanzania with the help of somebody who lmew driving a motor cycle .. He was released and was directed to go back to Tanzania to look for him. Indeed he found the appellant had bought a new motor cycle at Pemba (in Mozambique)o But by then he had pledged it to ~~3 rn MOrI.h.1vJEDI JUMii.. as a security after securing a loan of sJ1s. 535,000/- from him for the purpose of registrating it in Tanzaniao The? said motor cycle by then had already been registered at Mtwara with Registration Number MT 300. The Police at Mtwara were informed whereby they arrested the. appellant and took the motor cycle in .safe custody PW1 was notified who came and confirmed the appellant to be the very one he had left at his home and later disappeared with his 16~000,000 meticaso The appellant was charged with house breaking and stealing .. The appellant denied to have known PW1 or PW2 or PW1 ' s residence. He also denied to have been introduced to PW1 by PW2 or to have lived at PW1 1 s home or to ho.ve worked for PW1. He denied to have broken an<;l to have stolen the so.id 16,000,000 ., meticas or any money at all. He admitted to have bought the ••oe/3o•oec,

3 said motor cycle at Pemba for 3,000,000 meticaso But he said the money was hiso He said he had got that money through his petty usiness of selling cass2va flour, coconuts and vitengeo · He. called DW2 YAHJ1.Yi1., HASSAN a 20 yeer. old as his witnesso This witness supported him in respect of petty business that he really used to see him sellin 6 cassava flour and vitenge and coconutso .After evaluating the evidence the learned trial Resident Magistrate found him guilty as charged and convicted him accordinglyo He sntenccd him as aboveo He ordered the motor cycle which had been tendered as exhibit P3 to be returned to PW3 Shaibu where it had been pledged .. .The appellant was aggrieved with tho conviction and sentenceo Hence this appeal •. Before this court he insisted on his innocenceo He repeated more or less what he had stated at the trial with few variationso For example, while at the triDl he had denied to have known PW1 and PW2 or Pw1's residence or to have bee~ there, here in his 2nd and Li-th grounds of appeal he ad.mi tted to have known them for a long timeo Not only thato He also admitted to have gone to PW1 several times but for the purpose of selling him his petty business and hot fur Video show or for stealingo The lcs.rned State .. l.ttorney Mro Masaju who represented the Republic at the hearing of this appeal did not support the conviction on the ground that the trial Court had no jurisdi~·:;iori to try an offence which had been committed outside Tnnzaniao He cite¢!. the case of _F V§.___e_AMWEL KIP'rl,'rY KOSKEI .(19_~~) .. T..3,?4 7 together with So 6 of the Penal Code Cap 16 ands. 177 of the Criminal Procedure Act No" .9 of 1985a He also said there was no evidence by the Mozambique Police that PW1 Yusufu lodged any complaint there. He said the mere fact that the appellant was found with a new moto.:r;- cycle v.-hich he had bought almost immediately after the alleged theft had little merits as he was also doing some petty businesses and could possibly afford to buy it .. I have carefully considered the evidence on record 7 the appellant's grounds of appeal the reply by the learned Sate Attorney, together with the overall circumstances surrounding this caseo I will star~ with the question of jurisdiction .. I have carefully considered what the learned State At-t ,rney

4 Submitted on this& He said' the trial Court had no jurisdiction to try the case as the of.fence was alleged to have been committed outside Tanzaniao He cited his authori tie.s for this. But, with great respect to the learned State Attorney, I think he was referring to the olds. 6 before the amendment effected by Act N<2.!.-1'±-C?.U980 which came.into force on 101201980 by virtue of Government Notice Noe 172 of 1980a Prior to that amendrnent, the old S .. 6 of the Penal Code C~p 16 said as follows:- uThe jurisdiction of the Courts of Tanganyika for the purpose of this Code extends to every place ·within Tanganyika or ·vri thin the Terri tori al .waters-., 11 It was during the time when that section was still in force when th\ case _of SAM\JEL cited by the learned State Attorney was decidedo It was decided on 19th March, 1980 .. Also So 65 of the then Criminal Procedure Ordinance Cap 20 was in harmony with that section .. But after the commencement of Act No,o 14 of 1980 which repealed and replaced S .. 6 of the Penal Code Cap 16 the situation changedo The new So 6 says:- The jurisdiction of the Courts of Tanganyika for the purposes of this Code extends to:- (a.) every place within Tanganyika and within the Territorial waters; (b) any offence committed by a citizen of' Tanganyika, in any place outside Tanganyika; (c) any offence committed by any person on an aircraft registered in Tanganyika.a" Thus under (b) above 9 any citizen of Tanganyika who commits any act outside Tanganyika which is a criminal offence under the Penal Code? he can be tried by a Tanganyika Courto For that reason, since the appellant is a citizen of Tanganyika and the offences he was alleged to have committed are criminal offences under the Penal Code 9 the trial Court had jurisdiction to try the case. So 65 of the then Criminal Procedure Ordinance Cap 20 is the·same as the present So 177 of the Criminal Procedure Act No .. 9 of 1985 1.ivi th the exception of the word "Tanzania" for "Tanganyikao·"

As far as the theft of '16,000.000/= Meticas is concer- ned, there was ample evidence by FWI on this&, PW2 Hamisi also confirmed that he sm·I the drawer of the cupboard which hard been broken. PWI was a businessma_r1. There ·was no doubt on his ability to pn,sses that m.nount which was equal to !shs~..2.QQ..1.,000 .. (according to the preliminary hearing)

• 5 That section says:- S121 11 Every court has authority·to cause to be brought before it any person who is within the local limits of its jurisdiction and is charged with a.i. offence committed wthin Tanzania, or according to law may be dealt id th as if it had been committed within Tanzania and to deal ¾th the accused person according to its jurisdiction" The appellant was charged with offences under the penal Code.. So6(b) of the Penal Code allows such suspects to be dealt -with by courts of this country. The 11 Law" referred to in .s. 177 of the CPA 1985 is the penal Code in this case. That section is in harmony with the new s.6 of the Penal Code just as S.65 of the Criminal Procedure ordinance cap 20 was in harmony with the old S.6 of the Penal Code. The trial court had jurisdiction to try the appellant. In the SAMWEL case the accused was not c. citizen of Tanganyika._ Coming to the prosecution evidence in respect of the guilty of the appellant, there was ample evidence by PWI I Yusufu that before he left for the market he locked his bedroom and left the appellant alone in the house. When he returned he found the door of his bedroom had been broken* When he entered his bedroom he found the draw of his cupboard had been broken and his 16,000,000/= Meticas which were there were missinge· The appellant was also missing., It is only unfortunate that he did not clarify as to how the said door had been broken. A door can be broken by being broken physically or b;>7 means of the padlock or lock being broken or by being rd:fx opened with a key. It would appear failure to clarify this was due to poor prosecution or the liken But whatever type of breaking was used, it was used illegally and unlawfully. It was very unfortunate that even the learned trial· Magistrate did not bother himself to get a clear clarification on this., However he was satisfied with the evidence of PWI that his bedroom was reallJ: broken into·.

6 -· The learned State Attorney expressed his doubt as to whether PW1's bedroom was broken into as there was no evidence by the Mozambique Police on this. I have considered this. But the absence of evidence by the police does not necessarily.mean ... . . .. there. was no breakage or- that PW1 was .telling lies. What is iip.portant is whether PW1 ·was tellip.g. the t;r:,uth. The .. learned . ....... ·trial Magistrate remarked in . his judgment that he was- -satisfied · · P-11 and PW2 we.re telling the . truth aμd that they were trus~~h. .. . ' .. ' '. • 1 • . . He. saw them giving evidence and answeriD,g questons. . .lie ww.. - . ' , .. , l. I • a.bettf.l pestion.to ia.ssess theit de!llIlptμ' f-1-tl;u.s oiw.t hae· nothing __ to fault him- on this •. The .learned Stat.e. attorney also doubted whether PW1 rep.ortd thQ matt t;o the .. Police. :in, Mozambique., I hava .c·nside:ped. this., .. ,··.:. too. Bu-t,. with respect to the learned State .Attorn:y., :t think. this was just an 6vexsight. There is ampl evi<lenoe by P\r/1 · · .. . . ~ .. . ... _.that· he reP,orted the matter to the Poli~-i:q, Mgzambique·. · · He · . tndei.-d .we, letters as exhibit P'H One of them was a_. gneral :: ini'a·rmation .to· the Public tht bif:? ·money 16,0Q?.,OOO/- -ntQticti.ij . . had b,eea stolen by a Tanzanian. . That leter .reads !IS foll,tn"! .~ ... . . ' -ICADE MOAMBI- ·. !1INI$WJ:O DO lNffiUQB .. :·· . l COMMJlliq DIS'l'TIITJ.\L DA :PEt1 pE MOCIME01 DJ\ PRii.If¼

• , ' ·-··- ...... ' . . . . . ' . rm:o~~!Q._;:. · - ... _ .. Pi& ~ ESQUDRA PRM 'D.A. C-IDADE · · · -· -- . · - c:DE PEMBA• -· 0 o·omando Disifri. 'i-al ·da- PRM d-e .Mocimboa da P.r-aia, tem a . honra -~ ttμ'fmqr qE; dura.n,te: ._& PEiiodG 4 ,ma9X1,lg?-<l:-?- 9-0 .a+a 9 ., ··•·· d.e .. l, M,' ?JlQ. m:.cv;r;s9. · Que,· c,idaq,q)j· de -nme ,qμe diz. cham ISSQFO~~ilR ~ -sol~~~ "d- 34 an<?.a - .de ids.<¾, -~~lhQ, de- . Bcnr:

nQ"·~ba4>0 ~ de -~~d~d1:1a, · 0qua1.-.t'oi furt849 seu -~nnei~Q. .I]-o valor 
~- -1.?.t--OGO,-GQO"·qo--:I1ts (D,ezasseis Mil-hc;>es. -d~ ~Met±cais) -na S\l.a 
- \ .. 
· ~~~~dan~a ~-~ ta :ci.a .. m!:~ma;: ~a qe N,an9,u~d1~a,: ·_~9o~a o ~ci0c~ . 
e~,,-Q.e~p~ss?. em_ !uga para aquel·e ponto -da cidade 
11 
de P.~mq.a JlO 
" . .... ~ . 
hauro -de \a.mbi. .,.- 
··. ('---. -i Oomando Distz;.~t da. PRM d~ Mocimboa·, da Praira., estaurou. 
•. • -..;-.,. If~- .. "' -"4 1 t-rt', .. 
um au.to m,.-.62/99, contra o $Uspeito tal Tanzaniano. 
~h :•: ... _,_ - .:;...•••~~ ,._, • • • • .• ' • .. - • • ,._ _.,.•,~~• •• ", • ., 
.. .... -· 
.... ' ., ~'... . • • 1 
. . ~- .... -- 
...

7 
Esta nota eacompanhada pelo ofendido pa.J:'a identificar uma 
vez conhece pele cara .. Sem mais assuntos de memento, agradecesse 
·-" 
maior apoio no sentido de localizar e recuperacao do seu valor 
f 
em prejuizo .. 
Nossas. Cordiais SaudacoesG 
/' 
Mocimboa da Praia, 28 de Juhno de 1999a 
0 Chefe das Operacoes. 
,,. 
Sgn CUS'IODIO SANTOS Sii.LIMO 
(iillPIRANTE OPFICili.L D,1 POL) 
The other one was for introducing him to the Mtwara Police 
for.help to trace the suspecto It says:- 
MINISTERIO DO INTERIOR 
i1.UTORIDiJJE POLICL:.JS DE N 
1 
.rUARA 
-T.iillZii.NI A• 
Referente a nossa nota enviada aos 21 Junho do ano 1999 .. 
Relacionada ao robo dos 16,000,000oOO Mts (Dezs.sseis Milhoes 
de Meticais) · pertecente ao nacional Sufo Bacar 
9 
filho de Bacar 
~badre tendo resultado a captura do procurado .. Pelo que, as 
autoridades deste com.::mdo de Mocimboa da P;raia 
9 
pede o envio 
do arguido em causa junto dos bens aprendidoso 
Sem mais assuntos por memento .. 
Noss as Cordia.s Saudaco~'"s; 
~-- 
Mocimboa cla Praia aos 10 Julho 99 
.tlss., OF .. P Gabriel .£;,. Gabriel 
That is why I said the learned State Attorney's allegation 
that· PW1 did not report to the Police in Mozambique was probe.bly 
an oversight 
7 
or more ccrrectly 
9 
a slip of the tongue. 
It is upon the above reasons that I have been satisfied 
that the prosecution had established the guilt of the appellant 
beyond all colours.of cloubto He was rightly convicted •. His 
appeal against conviction has no merits and is hereby dismissed 
accordingly .. 
• ~ far as sentences are concerned, it would appear the learned 
trial Resident Magistrate sentenced the appellant to 5 years 
0 0 t) ~/8~. 0 0

' . 
8 
imprisonment on the 1st count apparently under the Minimum 
Sentences Act, 19720 If that was the case, then it was 
unfortunateo When the appellant committed tho.t offence he· 
was 17 years old., Under s. 3 of the Minimum Sentences .Act, 
1972 he was a juvenile and therefore not covered by that Act by 
virtue of s. 2 of that .. ii.Cto 
The appellant was only 17 years old and a first offender·. 
But the amount he stole was not a small one. However a sentence 
of 5 years imprisonment-appears to be on the higher side. 
In view of this I set aside the sentences of 5 years and 
3 years imprisor1111ent and substitute thereat with sentences of 
2¼ years imprisonment on each count. They are to·run concurrentlyo 
Save for the reduction o.f sentences the appeal is otherwise 
dismissed. 
Date: 9010.2000 
Coram: Kaji J. 
S .. Ne, KAJI 
JUDGE 
9.10.2000 
For appellant - present in person 
For respondent - absent with notice 
B/C: Ladda - R/j_ 
Order: The learned State ..f'.l.ttorney is on safari to Lindi. 
Judgment will be delivered. on 11.10.,20000 
So No KilJI - JUDGE 
9.10.2000 
Date: 11010.2000 
Coram: Kaji J .. 
For appellant - present in person 
For respondent - Mtinangi - SA 
B/C: Mrc Ladda - R/A 
.92Jff:t: Judgr11ent has been delivered in the presence of the 
appellant in person and the learned State ::..ttorney 
Mro Mtinmigi for the Republic this '11th day of 
October, 2000. 
B/C: Mr. Ladda - R/Ao 
So No K.."l.JI - JUDGE 
'110'10.2000

.... 
9 
I certify that this is t:rue and correct copy of the 
Original Jud~nent$ 
_,._ ... ·~ . 
·,,, 
~ .. , ..... ,_