Chambo Ramadhani v Republic 1985 TLR 178 (HC)

CHAMBO RAMADHANI v REPUBLIC 1985 TLR 178 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

May 6, 1963

CRIMINAL APPEAL 58 OF 1980

Flynote

Criminal Law - House breaking - Breaking into a house with intent to commit an offence, B c/s 294(1) of the Penal Code - Ingredients of the offence.

Criminal Law - House breaking - Time of the commission of the offence - Act of house breaking committed at 11.00 p.m.- Ss.5 and 294 of the Penal Code.

Criminal Practice and Procedure - Charges - House breaking - Charge of housebreaking not specifying the offence intended to be committed - Effect of the omission.

Evidence - Identification of the accused person - Offence committed at night - Accused identified by fellow villagers who know him well - Whether enough to establish identity.

-Headnote

The appellant was convicted of housebreaking. The charge did not disclose the offence which the appellant intended to commit in the house broken into. The facts were that E some villagers, having been tipped off that robbers were planning to raid a house on the material night, placed a burning lamp in front of the house and kept vigil in the nearby surrounding bushes. The gang of robbers appeared at 11.00 p.m. Among them, the hiding villagers saw the appellant, a fellow member of their village, before the light was put out and the house broken into. The gang fled when the villagers started shouting. F But one of them was apprehended and he mentioned the appellant as having been one of the fugitives. The appellant raised the defence of alibi but the trial court rejected it. He appealed to the High Court.

Held: (i) The offence of housebreaking is constituted by entering a building with intent to commit an offence therein and this was not sufficiently shown in this case; (ii) a charge of house breaking should specify the particulars of the offence intended to be committed in the house broken into; for not making this specification, the H charge in this case was defective; (iii) although the charge was defective for omitting to specify the offence intended to be committed, the appellant was not prejudiced by the omission and the defect was curable under s.346 of the Criminal Procedure Code [now s. 388 of the Criminal Procedure Act, 1985]; I (iv) although the circumstances in which the appellant was identified were not as easy as they would have been had the incident happened in the day time, the A appellant was not a stranger to the villagers who identified him and he was also named by one of the gangsters as being one of his companions; those factors are enough to establish that the appellant was correctly identified as one of the burglars; (v) as this was housebreaking committed at night, it constituted the offence B termed "burglary" and the charge should have indicated as such;

Case Information

Appeal dismissed.

Cases referred to: C

1. Rajabu Abdallah v R., [1967] H.C.D. 416

2. R. v Bakari bin Yusuf, (1940) 7 E.A.C.A. 63

A.T. Akarro, for the Republic. D

Judgment

Sisya, J.: This appellant was charged with two counts of Stealing and Housebreaking respectively. The charge as laid reads: 1st count: Offence Section and Law: Stealing C/S 265 of the Penal Code Cap. 16 Vol. 1 of E the Laws. Particulars of Offence: The person charged on the 7th day of June 1978 at about 14.30 hrs at Bombani village within the District of Muheza in Tanga Region did Steal one Shotgun, makers No 3778 (?), valued at Shs. 1,000/= the property of Jonathan Ngereza. F 2nd count: Offence Section and Law: House breaking with intent to commit a felony c/ss 294(1) of the Penal Code Cap. 16 Vol. 1 of the Laws. Particulars of Offence: The same person charged on the 1st day of June, 1978 at about 23.00 G hrs at Mashewa Village within the District of Muheza in Tanga Region did break and enter into the dwelling house of Maiko John with intent to commit a felony therein. He was acquitted and discharged on count one. He was, however, found guilty and convicted as charged on count two, and he was sentenced to five years imprisonment. He has now appealed to this Court against both conviction and sentence. As can be observed here in above the charge in count two did not specify the felony or, I rather, the offence which the appellant had allegedly intended to commit. It is clear from the wording of section 294 of the Penal Code that A the intent to commit an offence is a necessary and indispensable ingredient of the offence created by the section . 

There is a host of cases in which it was authoritatively held that a charge of entering a building with intent to commit an offence therein should specify the particular offence intended. It is clear, therefore, that in so far as the intended B offence was not specified the charge in count two is defective. The short but sharp question that arises is, what effect does this defect have on appeal? The learned State Attorney, Mr. Akarro submitted that the defect is incurable because the appellant was not informed as to what he was charged with. He based his argument C on the decision of this Court, per Biron J., in the case of Rajabu Abdalla v R. [1967] H.C.D. no. 416. The accused in that case was charged with housebreaking and was convicted of attempted housebreaking. The charge stated that he broke and entered a specified dwelling house "with intent to commit a felony therein", but it did not specify the D felony which had been intended. On appeal Biron J. held that the accused was not informed as to what he was charged with, for the intent, which is an indispensable ingredient of the offence, was never specified and that the defect is not curable on appeal. However in an older case of Rex v Bakari Bin Yusuf (1940) 7E.A.C.A 63 it was held by the Court of Appeal for Eastern African (in an appeal from the precursor of this Court H.M. High Court of Tanganyika) that an information or charge of entering a dwelling house with intent to commit a felony therein should specify the particular felony intended but failure to do so will not be a fatal defect if the accused was not thereby prejudiced: 

As was said in Balmakand Ram v Cansam Ram (22 Cal at p. 405)" we must be guided, not by the undefined possibility of the accused having been prejudiced, but by some suggestion which a reasonable man can accept, that there has been prejudice to the accused." Where the Court feels that there is no possibility that the accused can have been prejudiced by some error or omission in the charge or information the provision of section 3335 of the Criminal Procedure Code may properly be applied. Where it must be conceded that in some cases this might indeed be a fatal defect I am of a considered view that the decision in the Rajabu Abdalla case is too extreme and that, although extreme cases must yield to principles which logically apply to them, the Rajabu Abdalla case is with respect, unnecessarily extreme. It is thus, to my mind bad law and ought, therefore, not to be followed. At any rate the decision of the Court of Appeal in the Bakari Bin Yusuf case does not only make good sense but it is A also binding on this Court. In the instant matter it must have been plain to the appellant from the evidence of, at least, three witnesses for the Prosecution, viz. PW2, and PW6, that he and his companions, who were tried separately, tried to steal cash and/or whatever they could lay their hands upon in the complainant's house with armed force. Since the appellant also had the benefit of a full trial I am satisfied that he could not, therefore, have been prejudiced by the omission to specify in the charge that the offence intended was, to be precise, robbery with violence.  

In the final event I hold that the defect is curable on appeal under section 346 of the Criminal Procedure Code, the appellant having not been prejudiced at all. Now, turning to the merits of the appeal itself, the only substantive point for consideration by this Court is the identification of the appellant. Evidence was given by PW2, PW3 and PW6 to the effect that they had been tipped that a gang of armed bandits had planned to raid the house of PW3 on the night of 15/6/78. They and other villagers then kept vigil in the surrounding or nearby bushes. Two lamps were lit. One was left burning infront of the house and the other at the back. At about 11.00 p.m. five persons arrived. One of them had a gun whereas the others  had pangas. PW2 and PW3 managed to see and identify the appellant as one of those with pangas. He, i.e. appellant, is a resident of the same village, Mashewa; so the Prosecution witnesses knew him well. As indeed was expected one of the bandits kicked down the lamp in front of the house and it went. Darkness then prevailed but by F then the appellant had already been seen and identified: the others were not. The appellant and his companions broke the front door and at least four of them entered the house. 

One of them remained outside. At that stage PW2, PW3, PW6 and others came forward from the shrubs while crying out "thieves! thieves!" The intruders bolted out and took to their heels while their gunman was firing in the air. One of the villagers, G Rashidi, who had a gun, responded. He aimed at the fleeing intruders. His bullet hit and physically incapacitated one of the bandits, one Ally. The villagers closed in on the wounded savage whereas his companions fled and escaped. Ally, however, mentioned them all. The appellant's name was not spared: He, appellant, was named as one of the H fugitives. He was, nevertheless, apprehended later. The appellant raised the defence of alibi but the same was rejected by the learned trial Magistrate and rightly so too. The same hardly raises any reasonable doubt in my mind either. The learned trial Magistrate found PW2, PW3 and PW6 to be honest and truthful I witnesses. Since he had the advantage of seeing and hearing them and it has never dawned upon me that he palpably abused that great advantage I A am not persuaded that in doing so the learned trial Magistrate erred . 

I will thus go by his assessment of these witnesses' credit without reservations. Indeed circumstances favouring identification were not as easy as they would otherwise B have been had the incident taken place in broad day light. Nevertheless, there was a light provided by a burning lamp at the scene before it was violently quenched; the appellant was not a stranger in the eyes of those who identified him - they knew him before and he was their fellow villager, at least two persons, i.e. PW2 and PW3, were able to see and recognise the appellant, and the appellant was named by the wounded C gangster, Ally, as well as being one of his companions. All these factors in their totality satisfy me beyond any peradventure that the appellant was one of the would be robbers on the material night. His identification was, therefore, fully established. Having regard to the circumstances in which the offence was committed the sentence is not excessive and the same is hereby confirmed. Before I sign off, let me observe that had the learned trial Magistrate, whom I personally know as an experienced Magistrate, exercised some slight presence of mind public time which has, so far, been wasted in considering whether or not the omission to specify the offence intended in count two is E fatal would have been spared or saved. I refuse to believe that the learned trial Magistrate is ignorant of the fact that the offence intended ought to have been specified in Court. I am, at the same time, prepared to accede that most probably he did not bother to go through the charge sheet before it was admitted or filed. 

I have time and again told Magistrates that it is always desirable to do so. Even then, even if the learned trial Magistrate did not look at or go through the charge before admitting it one would have expected him, experienced as he is and if, indeed, he exercised some presence of mind, to have easily spotted out the defect at the time he took the appellant's plea - or did he not even read over the charge on count two to him? Again, had the learned trial Magistrate exercised presence of mind at the time he read over the charge in count two he would not have failed to spot that because of the time shown in the charge (23.00 hrs) the proper offence to the charged was not the one shown but "Burglary". If perhaps the mode of quoting the time confused him then he must have got clarification from PW2, PW3 and PW6, all of whom specifically fixed the time of the commission of the offence at 11.00 p.m. The attention of the learned trial Magistrate is drawn to that portion of Section 294 of the Penal Code which reads: 'If I the offence is committed in the night it is termed "Burglary"......' "Night" is defined in Section 5 of the Penal Code 1985 TLR p183 to mean "the interval between seven o'clock in the evening and six o'clock in the morning." In the final event this appeal fails and it is dismissed in its entirety.

Appeal dismissed.

1985 TLR p183

C