MASUDI AMLIMA v REPUBLIC 1989 TLR 25 (HC)

 MASUDI AMLIMA v REPUBLIC 1989 TLR 25 (HC)

Court High Court of Tanzania- Mtwara

Judge Maina J

6 March, 1989 E

Flynote

Evidence - Witnesses - Number of witnesses required to prove a fact.

Criminal law - Alibi - Notice of intention to raise defence of alibi. F

-Headnote

This is an appeal against conviction for house breaking and stealing, for which the

appellant was sentenced to five years in prison in the first count and three years in

the second count, to be served concurrently. G

Complainant, Daileta Kalamola locked her house and went to work in her Shamba.

She returned to find her house broken into and her properties valued at shs.6895

stolen. Complainant's neighbour had seen the appellant at about eight o'clock in the

morning carrying a bag. Detective Burhan testified that the appellant admitted the

theft and sent H the Police to various places where appellant claimed that stolen

properties were hidden.

The appellant denied the theft, saying that he had been with his girl friend at another

place called Sululu when the offence was committed. This alibi was rejected by the

trial magistrate. The appellant submitted that the trial magistrate erred in convicting

him on the testimony of a single witness. I

1989 TLR p26

MAINA J

Held:(i) There is no law requiring that more than one person should be required to

prove A the fact that the appellant was seen coming out of the house;

(ii) the appellant's defence of alibi was properly rejected. He did not give the

notice required under section 194(4) of the Criminal Procedure Act, 1985, and he did

B not call the person he claimed was with him at the time of the commission of the

offence.

Case Information

Appeal dismissed. C

Boaz, State Attorney, for the Republic

Appellant - Absent.

[zJDz]Judgment

Maina, J.: Masudi Amlima is appealing against conviction for house breaking and D

stealing, for which he was sentenced to imprisonment of five years in the first count

and three years in the second count, to be served concurrently.

The complainant, Daileta Kalamula, told the trial court that on 4 May l987 she locked

her house and she went to work in her shamba. When she returned to the house at

about E four o'clock in the afternoon, she found the house had been broken into and

her properties, mainly clothes, valued at shs.6895/=, were stolen. Her neighbour,

PW3 Fabian told her that he had seen the appellant coming out of the house at about

eight F o'clock in the morning carrying a bag. Fabian said in his evidence that he did

not suspect anything because the appellant who is also a neighbour, was a frequent

visitor to the house. The appellant was arrested after the matter was reported to

Police. In his evidence Detective Cpl. Burhani said that the appellant admitted the

theft. He sent the G Police and the complainant to various places where he claimed

that the stolen properties were hidden. The appellant also named two persons to

whom he had given the clothes. One of these persons denied any knowledge about

the clothes. The other was not traced. None of the stolen properties were recovered.

H

The appellant denied the theft, saying that he had been at a place called Sululu when

the offence was commited. He said he was with his girl friend whose name he did not

remember. He has said in the memorandum of appeal that the trial magistrate erred

in convicting him on the testimony of a single witness. Section 143 of the Evidence

Act provides that: I

1989 TLR p27

Subject to the provisions of any other written law, no particular number of

witnesses shall in A any case be required for the proof of any fact.

In this case the complainant's neighbour saw the appellant coming out of the B

complainant's house. That was a single witness. The trial magistrate believed him.

There is no law requiring that more than one person should be required to prove the

fact that the appellant was seen coming out of the house. The evidence of PW3

Fabian was sufficient to prove that fact. The appellant was seen carrying a bundle, and

the C complainant later found out that her house was broken into, and her

properties were stolen. From Fabian's evidence, the irresistible conclusion is that the

appellant broke into the house and stole those properties. That was sufficient

evidence to base a conviction.

The appellant's defence of alibi was rejected, and properly so. He did not give the

notice D required under section 194(4) of the Criminal Procedure Act that he

intended to raise the defence of alibi. Furthermore, he did not call the person he

claimed was with him at the time of the commission of the offence. The trial court,

therefore, properly rejected the appellant's alibi. E

From the evidence on record, the learned trial magistrate considered what Fabian said

and believed that evidence. Fabian knew the appellant and it was in broad day light.

There is also the evidence that the appellant admitted the theft, and even showed the

prosecution witnesses where the properties were hidden, although they could not be

F recovered. The evidence, on the whole, leaves no reasonable doubt on the

appellant's guilt. The sentence is the minimum under the law.

G Appeal dismissed.

1989 TLR p27

H