Wakilii

Salimu and Another v Rex (Criminal Appeals Nos. 223 and 224 of 1951)

East African Court of Appeal · [1952] EACA 225 · 1952 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeals from conviction by the High Court of Tanganyika for shopbreaking, entering and stealing
Decision
Convictions on first count upheld for both appellants; conviction on third count quashed for first appellant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal upheld the convictions for shopbreaking and stealing based on circumstantial evidence and the doctrine of recent possession. The Court held that a count alleging theft after a previous conviction under sections 265 and 275 of the Penal Code is not a separate offence but merely a statement of aggravation. The conviction and sentence on the third count were quashed. The redundant second count was ordered removed from the indictment.

Outcome

Convictions on first count upheld for both appellants; conviction on third count quashed for first appellant

Facts

The appellants were convicted by the High Court of Tanganyika of breaking into Ismail Karimjee's shop at Pande and stealing cloth and other goods on the night of 5-6 April 1951 during the Mohammedan feast of Ziara. The appellants arrived at Abdalla's house in Pande two days before the feast with no luggage, remained behind when Abdalla went to the celebration, and left without farewell the next morning. That afternoon they appeared at Bakari's house at Mitole, seven to eight hours' walk away, carrying two large bundles, new umbrellas and hurricane lamps. They engaged a porter to carry their bundles to Kitomanga. One month later, police searched the first appellant's house and found rubber shoes, a plate, soap and a kettle similar to stolen items. The second appellant had given blue silk cloth to a tailor and sheeting to a creditor, both similar to stolen goods. There was no direct evidence connecting the appellants to the theft.

Issues

  1. Whether there was sufficient evidence to justify the appellants' conviction for breaking and entering and stealing based on circumstantial evidence and the doctrine of recent possession.
  2. Whether the third count charging the first appellant with stealing after a previous conviction constituted a separate offence or merely a statement of aggravation.
  3. Whether the second count in the indictment was redundant and should be struck out.

Orders

  • The second count ordered to be removed from the indictment.
  • Conviction and sentence on the third count quashed.
  • Both appeals otherwise dismissed.

Rules and key headnotes

Evidence — Recent Possession — Circumstantial Evidence
It is perfectly good evidence that a person is the thief that he is found in possession of stolen property quite soon after the theft, and the real issue is whether there was sufficient evidence to justify a finding that the accused were found in possession of the stolen property or whether there were circumstances which pointed irresistibly to them as the thieves.
Criminal Procedure — Indictments — Redundant Counts
Where an indictment contains a count that is clearly redundant, the trial judge should strike it out and it should be removed from the indictment.
Criminal Procedure — Aggravated Offences — Previous Convictions
A count alleging theft after a previous conviction under sections 265 and 275 of the Penal Code is not a count charging a second or separate offence; it is merely a statement on a count alleging a circumstance of aggravation. Where an information contains a count charging a person accused with having been previously convicted, the procedure provided in section 262 of the Criminal Procedure Code applies, and the previous conviction should be dealt with at the end of the trial after conviction on the substantive count.

Legislation cited (4)

  • Tanganyika Penal Code s.265
  • Tanganyika Penal Code s.275
  • Tanganyika Criminal Procedure Code s.138(f)
  • Tanganyika Criminal Procedure Code s.262

Cases cited (1)

  • Rex v Loughlin (1951) 35 Cr App R 69

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Salimu and Another v Rex (Criminal Appeals Nos. 223 and 224 of 1951) [1952] EACA 225 (1 January 1952)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.