House breaking vs. Burglary in Tanzania. By Johnson Yesaya

Scenario.

On 5th April 2020 maduhu and his wife sabuda were asleep in their house situated at somanda within Bariadi Town. They were awekened around 1:00 Am by a group of armed bandits who forcefully stormed into their house. 

Upon their forcible entry, the bandits physically assaulted Maduhu and his wife while demanding to be shown where the money was kept. The bandits managed to disposes the named victims of their hard earned cash to the tune of 1,600,000/= and two mobile phones. 

Soon after the bandits had departed from the scene, maduhu and his wife raised an alarmto which their neighbours responded. Thereafter, the incidence was reported to Bariadi police station. 

Two weeks later, Manumbu was found in possession of one of mobile phones (maduhu's phone) taken by bandits at Maduhu's home during incidence.

Questions.

1. What are the possible offences would manumbu be charged with?

2. Identify any defence available for the charge laid against Manumbu as identified in question (1) above.

3. What are the possible offences would the bandits be charged with once they are identified?
4. Would the charge be the same if the incidence would have been committed during the day time?

Answers.

I: What are the possible offences would manumbu be charged with?

The proper offence to charge manumbu is provided under section 312 (1) (b) of The Penal Code  which is possession of property suspected to be stolen. The section above provides that, “Any person who, is found by a police officer in possession of or having control over any property which may, having regard to all the circumstances, be reasonably suspected of having been stolen or otherwise unlawfully acquired, may be charged with being in possession of, or conveying, or having control over, as the case may be, the property which is suspected of having been stolen or otherwise unlawfully acquired and shall, if he fails to satisfy the Court that he did not steal or otherwise unlawfully acquire the property, commits the offence with which he is charged and be liable, on conviction, to imprisonment for a term not exceeding three years”.

In the case of Republic vs Atanath  five people were found with stolen properties by constable kabwewe, all five people failed to give proper details connected to the properties and they were taken to Msimbazi Police Station. Later the properties were identified to be stolen and all people were charged with possession of properties suspected to be stolen.

I think this is the only offence he can be charged with, because it is not yet proved that Manumbu was one of the bandits committed several offences at maduhu’s house. Charging Manumbu with other offences is immaterial because prosecution may fail to prove the allegation before court of law, also it is requirement of the law that, a person convicted under above section, cannot be charged or convicted with offence of stealing or relating offence to theft, section 312 (4) of Penal Code.

II: Identify any defence available for the charge laid against Manumbu as identified in question (1) above.

There are a number of excellent defences to a charge for possession of stolen property, the best defence for charges will depend heavily on the circumstances of the case. However, some common and strong defences to possession of stolen property charges include, lack of mens-rea required to be guilty of this offence.

One effective way to defend a possession of stolen property charge is to argue that you did not have the mens rea, or the ‘guilty mind’ required for this offence.

You may be able to argue that you did not have the mens rea required to be found guilty of this offence because you did not know that the property was stolen. It is entirely possible that you purchase property from a friend or another person without knowing that the item was stolen (innocent buyer). In such a situation, even though you were in possession of stolen property in a strict sense, you would not have the criminal intent required to be convicted of the offence. However, in order for you to raise this defence you cannot have been willfully blind to the fact that you possessed stolen property. For example, if you purchased the property from someone in highly suspicious circumstances or in circumstances where the average, reasonable person would readily ascertain that the property was stolen, it is likely that you will have a difficult time proving that you innocently acquired the property.

III: What are the possible offences would the bandits be charged with once they are identified?

The following are the possible offences that bandits may be charged after being identified;

Armed Robbery Contrary to section 287A of Penal Code , which provides that, “Any person who steals anything, and at or immediately after the time of stealing is armed with any dangerous or offensive weapon or instrument, or is in company of one or more persons, and at or immediately before or immediately after the time of the stealing uses or threatens to use violence to any person, commits an offence termed “armed robbery””. The scenario show that bandits were armed which constitute the offence of armed robbery.

Assault with intent to steal Contrary to section 288 of Penal Code , “Any person who assaults any other person with intent to steal anything commits an offence and is liable to imprisonment for a term of not less than five years nor more than fourteen years, with corporal punishment”. The scenario provides that, “upon their forceful entry, the bandits assaulted maduhu and his wife”, this constitute an offence mentioned above.

Burglary Contrary to section 294 (1) (a) (b) and (2) of Penal Code , this section provides that, “Any person who breaks and enters any building, tent or vessel used as a human dwelling with intent to commit an offence therein; or having entered any building, tent or vessel used as a human dwelling with intent to commit an offence therein or having committed an offence in the building, tent or vessel, breaks out of it commits an offence of housebreaking and is liable to imprisonment for fourteen years. If an offence under this section is committed in the night, it is burglary and the offender is liable to imprisonment for twenty years.” The suspects in our scenario, broke the door and invaded the house forceful, this constitute the elements of offence above.

IV: Would the charge be the same if the incidence would have been committed during the day time?

No, an offence of burglary can be named as house breaking depending the time when the offence was committed, breaking a house during the day is an offence called house breaking but if the same act done at night is another named burglary. See section 294 (2) of Penal Code 

REFERENCE

STATUTES

1: PENAL CODE CAP 16 R:E 2002

2: CRIMINAL PROCEDURE ACT, CAP 20 R:E 2002

CASE LAWS

1: REPUBLIC V. ATANATH, CRM APPEAL No. 115 of 2002 [2006]

ONLINE SOURCE

1. https://tanzlii.org/tz/judgment/court appeal-tanzania/2006/75-0

2.https://www.oykhmancriminaldefence.com/faq/best-defences-to-possession-of-stolen-property