Ambari s/o Zanga, Crim. App. 82-D-69, 24/3/69, Hamlyn J.

Ambari s/o Zanga, Crim. App. 82-D-69, 24/3/69, Hamlyn J.

The appellant was convicted in the District Court of Tanga of offences of burglary and stealing, contrary to sections 294(1) and 265 of the Penal Code. The evidence shows that the accused, during the hours of darkness opened a door leading into an enclosed yard (which it appear has no roof but into which the house door opens) and took therefrom some articles of clothing which were hanging there. He was apprehended with the stolen property in his possession.

Held: “Learned State Attorney supports the conviction for burglary, but I feel that this can hardly be upheld. The evidence is not very specific but I take it to show that the yard though enclosed with a wall, was an open one above, such as is frequently encountered in this country. Certainly, if it were roofed and formed, as it were, a covered annex to the main building, it was the duty of the prosecution to make this clear from the evidence which they adduced. In the absence of such evidence I must take it that the “yard” to which the witnesses refer was an enclosed plot though open to the skies. Despite learned State attorney’s view on this matter, I cannot find that such area was or formed part of a dwelling-house under section 294 (1) of the Penal Code. Section 5 of the Code gives an interpretation of the word “dwelling-house” and despite the wording of the latter part of the description in that article; I find that the yard does not conform to the requirements of a “building or structure” which is a dwelling-house. While it certainly is adjacent to the dwelling-house proper and there is a n immediate communication between it and the main building, the description is confined to structures of the nature of a room and not merely to a walled enclosure open to the skies. This being so, there can have been no “burglary” in the legal sense of the term and the appeal must consequently succeed in so far as the first count is concerned.”