House Breaking
Breaking is defined under section 293 of the Penal Code, that is:
a) A person who breaks any part whether external or internal of a building or opens by unlocking, puling, pushing, lifting, or any other means whatsoever any door, window, shutter, cellar flap or other thing intended to cover or close an opening in a building or an opening giving passage from one party of the building to another is deemed to break the building.
b) A person obtains entrance into a building by means of any threat of artifice for that purpose or by collusion with any person in the building, or who enters a chimney or other aperture of the building permanently left open for any necessary purpose, but not intended to be ordinarily used as means of entrance, deemed to have broken and entered the building.
A person is deemed to enter a building as soon as any part of his body or any part of any instrument used by him is within the building.
Thus to open a locked door with a key, or push it open or to pull or lift a latch of any door or window and so open it, constitutes breaking of the building. Indeed if one pushes open a door that is closed but not locked, he is said to break the building.
What Constitute House Breaking
In order to obtain a conviction, the prosecution must prove that:
ü The accused broke the building, tent or vessel,
ü Having so broken he entered there to,
ü The building, tent or vessel is used as a human dwelling.
ü He did so with intent to commit an offence.
That there was breaking:
It is necessary to prove that the door, window or other aperture was closed before the breaking. In LENDELITO s/o LAIDOSOLI V. R. (1972) No. 169, the appellant was convicted of burglary, stealing and unlawful wounding c/ss. 294,265 and 228(1), Penal Code and was sentenced to two years’ imprisonment, six months imprisonment and a fine
of Tshs. 200/= respectively. The facts are that PW3 was a tenant of the appellant and he left without paying rent and rented another house. On the 10thMay, 1971 the appellant asked for his rent. PW 3 did not pay and the appellant told him that he would see the consequences in the evening. At about 10.30 that evening PW 3 had gone out and PW1 heard a bang on his door and saw people coming from his room; the appellant was standing near the door and attacked PW 1 when the raised an alarm. He sustained a lacerated wound on his head. On return PW 3 found two suitcases and bed sheets missing.
“….With reference to the charge of burglary, PW 3 did not say that he left his door closed when he went out nor did any of the witnesses’ see it closed. PW 1 came to the conclusion that there was a breaking into the room in question because he heard a bang on the door. This was not conclusive evidence of breaking for the purposes of the offence charged….”
That the accused entered the building:
There must be evidence to prove that having broken the building, vessel or tent, the accused entered the same.
In the case of SAID s/o ALLY V. R. (1973) H.C.D. No. 66, the appellant was charged with burglary c/s 294(1) of the Penal Code but he was convicted of attempting to commit the offence. The complainant was awakened by noises downstairs in the small hours of the material night. As he climbed down the stairs he heard someone running away from the house. On flashing torch he found that the door glass had been broken. He called in the police and took photographs of finger impressions. The appellant was later arrested on suspicion and according to the report submitted by the fingerprint expert, the impression found on the piece of glass were identical with the appellant’s fingerprint. On appeal the Judge said,
“…I am in agreement with the trial court that the facts didn’t constitute the offence charged as there had been entering. Having regard to the time the offence was committed there was an irresistible conclusion that the appellant was attempting to break into the house in order to commit a felony and I have no reason to differ from the finding of the lower court that the appellant attempted to commit the offence of burglary…”
To constitute the offence of burglary c/s 294 (1) PC there must be entering. What then constitute “entering”? A person is deemed to enter a building as soon as any part of his body or part of instrument used by him is within the building. If for instance, the accused forces open a window and then pushes his hand or a stick through the window into the building, he is said to have entered the building because part of his body i.e. his hand or the instrument held by him that is, the stick, is within the building. If he pushes the stick into the building, it is immaterial that the whole of his body remained outside the building. The least degree of entering with any part of the body or instrument used by him will suffice.
In another case of PAUL V. R. (1971) H.C.D. No. 135, the appellant was charged with two other men for burglary and stealing c/ss 294(1) and 265 of the Penal Code and was convicted on once pair of the charges. In respect of the charge against the first accused the magistrate held that fishing out clothes out of a broken window did not constitute “entering”.
i) “It is pointed out for the benefit of the magistrate that breaking the
ii) Window during the might and pole-fishing the clothes through the broken window constitute the offences of burglary and stealing. It is sufficient to quote a passage from Arch bold, 35th edition, paragraph 1805. “There must be an entering, as well as a breaking, to constitute burglary; although we have seen that the entry need not be on the same night as the breaking….the least degree of entry, however, with any part of the body, or with any instrument held in the hand, is sufficient; as, for instance, after breaking the door or window, etc., to step over the threshold, to put a hand or a finger or a hook or other in a window to draw a out goods. Appeal dismissed.
If a person enters a building through a chimney or other aperture of the building permanently left open for any necessary purpose but not intended to be ordinarily use as a means of entrance or he obtains entrance into the building by means of ant threat or artifice used for that purpose or by collusion with any person in the building, he is deemed to have broken and entered the building-S. 293TPC.
In the case of PETER MUSA V. R. 1973 L.R.T. No. 68, the appellant was convicted for entering and stealing. There was evidence that the appellant could only have entered either by undoing the padlock on the door or by jumping over the wall into the complainant’s room as there was evidence that the house had no ceiling board. It was held that;
“…If the appellant employed the first method he “actually” broke into the room. If he used the later method he “Constructively” broke into the room, and of course the fact that he was already legally in another part of the house is immaterial…”
This case of Peter Mussa has realistically taken into account the prevailing conditions in our society and hence, held that an opening between the top of wall and the roof was “by actual necessary permanently left open”
That It Was Used As A Human Dwelling
The third element of the offence of house breaking is that the building, tent or vessel, which the accused broke, was used as a human dwelling. Section 5 PC defines a “dwelling house” to include any building or structure or part of building or structure which is for the time being kept by the owner or occupier for the residence therein of himself, his family or servants or any of them, and it is immaterial that it is from time to time uninhabited. A building or structure adjacent to or occupied with a dwelling house is deemed to be part of the dwelling house if there is communication between that building
or structure and the dwelling house, either immediate or by means of a covered and enclosed passage leading from the one to the another the important thing to remember is that the building or structure should be used or kept for dwelling by the owner or occupier or by his family or servants. If the building or structure has been abandoned as result of the owner having shifted to some other places such building or structure will not strictly speaking come within the definition of “dwelling house”.
That the breaking was with intent to commit an offence:
It is not enough to prove that the accused broke and entered a building, tent, or vessel used as a human dwelling. The prosecution must go further and prove that the accused did so with intent to commit an offence.
In the case of R. V. NTIBILANTI [1972] H.C.D. No. 106, the accused was medically certified as having twelve years old was charged and convicted of house breaking under section 294(1) TPC and given a conditional discharge. The charge didn’t specify the offence that the accused intended to commit.
“…Time and time again this court has stressed that a charge of house breaking should specify that felony that was intended. It is cardinal principle that a complaint should be couched in withwhich sufficiently inform the accused of the nature of the offence with which he stand charged…”
Proceedings declared a nullity but retrial not ordered conviction quashed and the order of conditional discharge set aside.
Burglary
The offence of burglary is provided under section 294TPC. The only difference between the offence of house breaking and that of burglary is that burglary refers to a breaking and entering into a dwelling house at night with intent to commit an offence. In simple term burglary house breaking at night. Moreover, house breaking is punishable with fourteen (14) years imprisonment whereas burglary is twenty years imprisonment.
What must be remembered with regard to a charge of burglary is that the charge must allege that the offence was committed at night, and evidence must be adduced to prove that the offence was in fact committed at night.
Night time is defined under section 5PC.
In R. V.DAMAS [1961] E.A, the respondent was convicted by the District Court on two counts of house breaking and stealing respectively. On appeal the High Court quashed the conviction of house breaking holding in effect that the offence of burglary and house breaking under section 294 TPC whereas distinct offences, one being committed only at night the other only during the day and once there was no evidence of the time of the day or night where the premises were broken and entered was bad in law.
i)Under section 294 PC burglary is not completely different offence from but an aggravated form of housebreaking which carries an enhances sentences if the additional element, commission in the night is both charged in the count and proved at the trial.
ii) If the additional element is either not charged or if so charged, is not proved, the offence is nevertheless housebreaking, no matter what time it may be committed. Conviction and Sentence restored.
Entering A Dwelling House With Intent To Commit An Offence
According to Section 295 TPC
Ø Entering must be through an opening normally for ingress.
Ø That entrance/opening should not be locked or closed.
The elements of this offence are similar to those of housebreaking except that it does not include the element of breaking.
If however, the accused has a free access to the building by the nature of his duties or by virtue of his close relationship with the occupier, it is not easy to prove that he entered the building with intent to commit an offence.
In the case of PASKALE STEPHENO V. R. (1968) H.C.D. No. 196, the accused, a servant of the complainant, was convicted, interalia of entering a dwelling house with intent to commit an offence namely stealing. On appeal:
“…Since the accused had free access to the house of his employer, it could not be inferred from the theft of goods alone that the accused entered the house with intent to commit a felony…”
The conviction for entering a dwelling house with intent to commit a felony was quashed, and that of stealing was upheld.
Breaking Into A Building And Committing An Offence
In order to obtain conviction for this offence then according to section 296 TPC the prosecution must be able to prove:
Ø That there was a breaking of building by the accused.
Ø That the building was s schoolhouse, garage, office, or counting house, shop stole etc.
Ø That he entered the building and
Ø That he committed an offence there in.
In MASEMU BUTILI V. R. (1971) H.C.D. No. 81, the accused broke a garage door but before he could enter the building he was frightened away. He was convicted under section 296(1) TPC
To establish the offence under this section the prosecution must prove:
a) The commission of the felony therein it does not seem that a garage was within the specified types of building.
b) A breaking and entering, and
c) Into one of the building specified in the statute. Moreover there was neither an entering of the building nor a commission of a felony therein.
That it is not enough to prove merely that the accuse broke and entered one of the structures aforesaid. You must go further and prove that having broken and entered the building; he actually committed a felony therein. If at the time of arrest the accused had already broken and entered the building but had not yet committed any felony therein, he may in a proper case be charged with breaking into building with intent to commit an offence therein.
A mistake often by the prosecutors in respect of the offence of breaking into a building and committing an offence therein is that they prefer two counts in respect of the same offence. That is wrong.
Breaking Into A Building With Intent To Commit An Offence
The elements of this offence are the same as those breaking into a building and committing an offence therein. This offence is provided under section 297 TPC.
In MUNICO V. R. (1972) H.C.D. No. 34, the accused was charged and convicted of shop-breaking c/s 297 and c/s 265 T.P.C. On appeal:
“….Section 297 applies to a situation where there has been a breaking into one of the specified structures with intent to commit a felony but the intended felony has not, in fact, been committed. The should have been charged with the offence of breaking into a building and committing a felony therein under section 296 TPC which section comprises both the breaking with intent and the actual commission of the felony intended.….”
Person Found Armed etc With Intent To Commit An Offence
The difficult in proving any of these offences lies in proving the intent to commit a particular offence. This of course, will depend on the circumstances in which the accused was found;
ü That the accused was a strange to the place.
ü That the instrumental or weapon was not such that a person could carry if he was going about a lawful business.
ü That he was found squatting near the premises.
ü That he attempted to escape when discovered.
All these may show that the accused was there for some unlawful purpose, and, in a proper case, that he was there with intent to commit an offence.
For the prosecutor to prove that the accused had the intention of breaking into or entering some particular building under section 298 TPC proof of a general intent to break into a house is apparently insufficient.
In R. V. BAILEY (1853) 6 COX.CC 241, It was held that “unlawful possession of implements of house breaking is sufficiently dangerous to society, although it may be unaccompanied with any immediate act of committing a felony.
Criminal Trespass
For the purpose of conviction according to section 299 TPC the prosecution must prove:
1) That the property in question belonged to another.
2) That the accused’s entry in or upon such a property was unlawful in the sense that it was without the consent of the owner or without some other lawful excuse.
3) That the intention of the accused in doing so was to commit an offence or to intimidate, insult or annoy the person in possession of such a property.
If it is shown that the accused reasonably believed the property to be his own, that will be a good defense. Equally a charge of criminal trespass will not lie, where the accused enters the premises or remains there with the consent of the owner, or where he does so upon other lawful authorization.
In the case of SAID JUMA V. R. (1968) H.C.D. No. 158, the accused was convicted of criminal trespass on the land of complainant, but the conviction was quashed on appeal to the District Court on the ground that the land did not belong to either party.
“…When in a case of criminal trespass, dispute arises as to the ownership of the land, the court should not proceed with the criminal charge and should advice the complainant to bring a civil action to determine the question of ownership…”
In another case of PAUL KAJUNA V. R. (1967) H.C.D. No. 318, the accused was convicted of criminal trespass despite the defense that he thought the land belonged to him. The land upon which the accused trespassed had been the subject of previous litigation, in which the accused had been claimed ownership of the land and lost.
“…In view of earlier adjudication of ownership, it can’t be argued by accused that in good faith believed the land to his…”
Malicious Damage to Property
The word malice in common acceptance means ill will against a person, but in its legal sense, it means a wrongful act done intentionally and without just cause or excuse. According to section 326 TPC a man act maliciously when he willful and without lawful excuse does that act which he knows will injure another person or his property. The term “maliciously”denotes wicked, perverse and incorrigible disposition. It means and implies an intention to do an act, which is wrongful to the detriment of another.
When an assault takes place which damage property worn by or in possession of the complainant, such damage is incidental to the assault rather than a separate offence.
See the case of LEO PIGANGOMA V. R. (1967) H.C.D. No. 131, Plaintiff borrowed Tshs. 200/- in October, 1964, putting up a shamba leld under Nyarubanja tenure as security. Repayment was originally due in October, 1965, which due date was extended by mutual consent to March, 1966. Plaintiff had not sought to prevent him from living on or using the shamba. Defendant refused the tendered repayment, preferring title to the shamba (the redemption period having expired), whereupon plaintiff filed this action seeking an order requiring defendant to accept repayment of the loan.
“….The district magistrate found that defendant was trying by devious means to obtain the piece of land. The judgment of the District Court was upheld and defendant was ordered to accept repayment of the Tshs. 200/- thus extinguishing any and all claim he had to the shamba….”
Arson
According to section 319 TPC, arson is the willful setting fire to any building, structure or any vessel whatever, either complete or not or to any stack of cultivated vegetable fuel, or to a mine, or the working, fitting or appliances of a mine.
to constitute arson:
ü The accused set fire to any of the thing aforesaid.
ü He did so willfully and unlawfully
That He Did So Willfully
It must be shown that the act was willful. It must be shown that it was by the conscious act of the accused. Burning a house through negligence or accident is not arson.
In the case of SIXTUS AMIN V. R. (1967) H.C.D. No. 6, the accused set fire and burnt the complainant’s house. The court held that where the evidence establish an accused careless or negligent conduct but doesn’t establish willful and unlawful behaviour as here arson conviction can’t stand.
That He Did So Unlawfully
It must be shown that he had no lawful excuse for doing so. In other words, it must be shown that he acted with an evil mind or maliciously. But where a person sets fire in his own house without endangering life or adjacent buildings such act is not parse unlawful. But there may be circumstances in which a person who sets fire to his own house could be guilty of arson. It all depends on the circumstances of the case.
In MWAKARIFU V. R. (1967) H.C.D. No. 185, the accused set fire to his house in order to end relationship with his wife. The court held that it would have been unlawfully for him to set fire to his own property if a person was in the premises or other buildings belonging to other people were endangered.
Setting Fire To Crops And Growing Plants
The main elements of this offence according to section 321 TPC are:
ü That the act was both willful and unlawfully.
ü That the crops, grass, tress, etc was under cultivation or was cultivated.
ü Mere accident or negligence will not suffice.
Injuring Animals
According to section 325 TPC, the act of the accused must be willful and unlawful. The damage must not be incidental to another offence. It is important also to note what animals are capable of being stolen under section 257TPC.
False Pretences
False pretence is defined under section 301 TPC. The law concerning to false pretences prior to 1980 did not apply to future representations. According to section 301 prior to 1980 if a person made a representation either by words, writing or conduct of a matter of fact either past or present which in fact is false, and which the person making it knows it to be false or does not believe it to be true is a false pretence.
Since the definition under section 301 PC didn’t include future instances, the East African Courts were reluctant to apply future representation to constitute the offence of false pretences.
In the case of ESMAIL V. R. [1965] EA 1, the court of Appeal ventured to say that if a man gives a check on May 1st post date to June 1st there would be necessarily be a false representation on May 1st that the drawer on that date had power and authority to draw the sum endorsed on the check. However the appellant was convicted on the ground that the check he handled over was due to be paid the next day morning, this he made to the existing fact, because he represented it after banking hours and he knew perfectly well that the representation was false.
the case which the courts in East Africa used to reach such decision was that of R. V. BARNAD (1837) C & P 784, where it was said that: in the case of post dated check there is no representation that the drawer then and there had available funds, but the drawer does represent that he has power and authority to draw on the bank concerned.
In the case of BURROWS (1869) 20 LT 499, it was held that where a man obtained goods by falsely pretending that he intended to pay for them that evening, he is not guilty of an offence. So this being the trend, the courts in Tanzania found it difficult to handle the mushrooming cases involving checks of future promises.
In 1980 by virtue of Act No. 14/80 the words past or present were removed from the definition. The relevant section now reads:
Any representation made by words, writing or conduct of a matter of fact or of intention which representation is false and the person making it knows to be false or does not believe it to be true is false pretence.
From the above definition, false pretence may be made by words, writing or conduct. The words, conduct or writing must be capable of conveying the false meaning and must have been intended to convey such a meaning . E.g. where A tells B that he has been sent by C to collect 10.000/= from B while A knows what he is saying is false, this is false pretence.
In the case of JUMANNE RAMADHANI V. R. [1992] T.L.R. 40, the accused was collecting money for Mwenge festivals from Asians. He pretended that he was sent by the government while he knew perfectly well to be false he was convicted of false pretence.
The pretence must relate to matter of fact and not to a statement of opinion. So if a seller of say soft drinks in untrue praises of MIRINDAsay “It is as good as a FANTA” that is an opinion and not a fact.
Proving false pretence
The prosecution must be able to establish that:
1) There was representation by words, writing or conduct by the accused person.
2) Such representation was about a matter of fact or intention.
3) The accused person or the person who made such a representation knew that it was false or did not believe it to be true.
Promise as to performance of future service must be coupled with present fact in order to amount to false pretences. It will be noted that a phrase “…a matter of fact…” In section 301 for the purpose of obtaining by false pretences must be PRESENT and PAST but not FUTURE. Thus if representation refers to a future it must be coupled with a present fact which is false in order to be false pretence.
Example: a person who is childless asks another person to give him Tshs. 100.000 on the pretax that he will ask his twelve years old daughter to marry that other person’s son. When she attains eighteen years.
Explanation: this will amount to false pretence because the false statement (that he has a daughter) will negative the future (promise of marriage).
