ABDUL ABDALLAH v REPUBLIC 1995 TLR 1 (CA)

 [zRPz]ABDUL ABDALLAH v REPUBLIC 1995 TLR 1 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mnzavas JJA, Mfalila JJA and Lubuva JJA

CRIMINAL APPEAL 91 OF 1993 B

March 21, 1994

(Appeal from the decision of the High Court of Tanzania at Dar es Salaam, Rubama,

J.) C

Flynote

Criminal Practice and Procedure - Sentencing - Accused sentenced under a law not in

existence when the offence was committed - Sentence illegal. D

-Headnote

The appellant was charged with and convicted of robbery. He was sentenced to thirty

years imprisonment under Act No 10 of 1989 which came into operation 10 days after

the appellant committed the offence. The High Court upheld the trial court's

sentence. Exercising its revisional powers the Court of Appeal considered the

question of sentence imposed on the appellant. E

Held: As Act No.10 of 1989 was not meant to apply ex post facto it was clearly

wrong for the two courts below to sentence the appellant under a law which was not

in existence at the time he committed the offence.

Case Infomation

Order accordingly. F

No case referred to

Miss Munisi, for the respondent

[zJDz]Judgment

Mnzavas, J.A., read the following order of the court: G

The appellant, Abdul Abdallah, was convicted of the offence of robbery with violence

contrary to s 285 of the Penal Code by Kinutu Resident Magistrate's Court and

sentenced to thirty years imprisonment. On appeal to the High Court the decision of

the district court was upheld and the appeal dismissed. H

Still dissatisfied he has come to this Court. Before us Miss Munisi, learned State

Attorney, raised a preliminary objection and argued that the notice of appeal was

lodged out of time and asked us to strike out the appeal as being incompetent. When

the Court asked the learned state attorney whether she had anything to say about I

1995 TLR p2

MNZAVAS JA

A the sentence of thirty years imprisonment she conceded that the sentence was

illegal as the offence was committed before Act No 10 of 1989 came into operation

and asked the Court to use its powers of revision in dealing with the unlawful

sentence.

B With respect we agree with the learned state attorney that the notice of appeal is

hopelessly out of time as it was filed 14 April 1993 over one year after the judgment

of the High Court was delivered on 10 February 1992. Rule 61(1) of the Court of

Appeal Rules required the appellant to file his notice adopted within 14 C days of

the date of the High Court decision. The appeal before us is therefore imcompetent.

However, in exercise of our powers of revision under s 4(2) of the Appellate

Jurisdiction Act, 1979, as amended by Act No 17 of 1993 it is our considered view that

the sentence of 30 years imprisonment imposed by the district court and upheld by

the High Court was clearly illegal. The charge shows D that the offence of robbery

was committed on 11 May 1989. At that time the law applicable was the Minimum

Sentence Act 1972 which provided under s 5(b) a minimum sentence of seven years

imprisonment for robbery. Act No 10 of 1989 under which the appellant was

sentenced to thirty years imprisonment for the offence of robbery came into

operation on 21 May 1989 - ten days after the E appellant committed the offence. As

Act No 10 of 1989 was not meant to apply ex post facto it was clearly wrong for the

two courts below to sentence the appellant under a law which was not in existence at

the time he committed the offence.

F It is our view that there was ample evidence in support of the conviction but as

we have already mentioned, the sentence of thirty years imprisonment was illegal;

and, in the exercise of our revisional powers we set it aside and in substitution

therefore the appellant is sentenced to seven years imprisonment.

1995 TLR p3

A