Parties directed to start a civil action before the

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ownership. Parties directed to start a civil action before the District Court of Kon- do to settle the issue of ownership. 159. Eliud s/o Kuzwa v. R., Crim. App. 921-D-67, 16/2/68, Biron J.
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Accused was convicted of forgery, uttering and stealing. There was evidence that accused had been given shs. 100/- with which to purchase a butcher’s licence for a relative. Accused improperly obtained the licence for Shs. 50/- The was a direct conflict between the testimony of accused, who said that he had returned the re- maining Shs. 50/- to complainant’s clerk, and the testimony of the clerk, who said that the money had not been returned. One Saudi Habib had witnessed the transaction, but he was not called as a witness at the trial. Held: (1) The English rule is that a witness may be called by the judge af- ter the case for the defence has been closed only if some matter has arisen ex improvision in the course of the case. The court may depart from this procedure only in special circumstances. [Comparing R. v. Tregear, 51 Cr. App. R. 280, with R. v. Cleghorn, 51 Cr. App. R. 291.] (2) The limitations in the English Law have not been incorporated into Crim Proc. Code section 151 which provides, “Any court may, at any stage of an inquiry, trial, or other proceeding under this Code, summon any person as a witness …… and the court shall summon …. Any such person if his evidence appears to it essential to the just decision of the case.” The High Court stated that “the court … has an unfettered discretion in the recal- ling of a witness, or the calling of a witness of its own motion, and, where it ap- pears essential to a just decision in the case before it to have the evidence of some witness, it is mandatory on the court to call such witness.” This rule is ap- plicable though the testimony may weaken the defence. [Citing Manyaki d/o Nyaganya v. R., (1958) E. A. 495; Kulukana Otim v. R., (!963) E.A.253.] (3) In the present case the court had a duty to call the witness to the transaction. (4) How- ever, even if an inference unfavorable to the prosecution is drawn from the failure of the prosecution to call the witness, there is sufficient evidence to support the conviction. Appeal dismissed. 160. Hasani Abdalla Mbaga v. R., Crim. App. 6-A-68, 9/2/68, Seaton J. Accused was convicted in same of stealing by servant. The prosecution called witnesses from widely scattered parts of Tanzania. When accused requested that a witness be called from Morogoro, the court agreed to do so only on condition
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that accused first deposit funds in court to meet the expenses of this witness. The witness appeared and testified. Held: (1) There is no authority for imposing such a condition upon the call- ing of a witness. Section 173 of the Criminal Procedure Code permits costs to be ordered against accused after conviction, but his power is exercised only in ex- ceptional circumstances. [Citing the Municipal Council of Dar es Salaam v. A. B.
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  • Fall '17
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