JOHN JOSEPH ONENGE AND JULIUS SENENE v REPUBLIC 1993 TLR 131 (CA)

 

JOHN JOSEPH ONENGE AND JULIUS SENENE v REPUBLIC 1993 TLR 131 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Mnzavas JJA and Mfalila JJA

CRIMINAL APPEAL NO. 24 OF 1993 B

21 May, 1993

(From the conviction of the High Court of Tanzania at Arusha, Munuo, J.) C

Flynote

Criminal Practice and Procedure - Adjournment of cases - Statutory control of

adjournments and remand of accused in custody - Need for a certificate from specified

officers stating the need and grounds should further D orders of adjournments and of

remand custody of the accused be necessary - section 225(1) and (4) of the Criminal

Procedure Act, 1985 - Consequences of breach of such mandatory statutory

provisions.

-Headnote

The appellants were convicted of armed robbery by the District Court. During trial

the learned E magistrate adjourned the case from time to time and remanded the

accused in custody for an aggregate exceeding sixty days without a certificate by

specified officers stating the need and grounds for such further orders of adjournment

and of remand custody of the accused. The Court of Appeal considered this issue and

the consequences of failure to comply with the mandatory statutory F provisions of s

225(1) and (4) of the Criminal Procedure Act, 1985.

Held: (i) The Trial Court breached the mandatory provisions of s 225(1) and (4)

by making orders of adjournment and of remanding the appellants in custody for an

aggregate of more than 60 days without any certificate of a specified officer stating

the need and grounds for such further orders; G

(ii) Such breach of a mandatory statutory provision, which breach does not

affect the substance of the trial does not render the trial a nullity.

Case Information

Appeal dismissed.

No case referred to. H

C.J. Maruma, for the appellant.

Mrs. M. Lyimo, for the respondent.

[zJDz]Judgment

Kisanga, J.A., delivered the following considered judgment of the court: I

1993 TLR p132

KISANGA JA

A Both appellants were convicted by the District Court for the offence of armed

robbery contrary to ss 285 and 286 of the Penal Code and were each sentenced to

thirty years' imprisonment. They appealed unsuccessfully to the High Court hence

this second appeal. In this Court both appellants B were advocated for by Mr C J

Maruma Advocate; the respondent Republic was represented by Mrs M Lyimo, Senior

State Attorney.

Both Courts below found that the house of the complainant (PW2) was broken into

in broad daylight and a number of items of property were stolen from there. The

appellants were seen and identified at C the scene but they managed to run way and

could not be arrested. Subsequently, however, the appellant Julius Senene was found

in possession of a radio which was one of the items stolen from the broken house of

PW2.

Mr Maruma filed and argued a total of nine grounds of appeal seeking to raise a

number of points of D law. He strongly criticised the High Court for not holding

that the charge was defective. The charge as laid read as follows:

`Offence section and law: Armed robbery c/s 285 and 286 of the Penal Code

cap 16 vol 1 of the Particulars of E Offence: John s/o Joseph Onenge and Julius s/o

Senene Mosha are charged on 25th day of February 1991 at about 12:30 hrs at Ismalia

Road within the Municipality and District of Moshi, Kilimanjaro Region did steal one

pistol make Browning No 5201 and 14 bullets valued at Shs 150,000/= one Normade

radio band 6 valued at Shs 60,000/=, one F wrist watch Oris valued at Shs 16,000/=,

one golden necklace valued at Shs 25,000/= and cash Shs 32,000/=, all total valued at

Shs 281,000/= the property of Seby s/o George Anjaria and immediately before the

time of such stealing did threaten one Victus s/o Joseph by firing one bullet into the

air in order to obtain or retain the things G stolen.'

The learned counsel vigorously contended that armed robbery as an offence does not

exist under the Penal Code. To use his own words `That offence is yet to be created

by the Legislature'. In his view H the only offence which exists under the Penal

Code is that of robbery as created by s 285 and punishable under s 286 of the Code.

Referring to a passage in the judgment of the High Court in which the learned Judge

had stated that the appellants were properly sentenced under Act 10 of 1989, Mr

Maruma submitted that that was completely wrong because the said Act 10 of 1989

did not create the offence of armed robbery. In his I view that Act only makes

1993 TLR p133

KISANGA JA

penalty provisions which prescribe inter alia a minimum of 30 years' imprisonment

for armed robbery A an offence which is non-existent. He strongly emphasized the

point that the provision under Act 10 of 1989 prescribing a minimum of 30 years'

imprisonment for armed robbery is meaningless unless and until Parliament enacts a

law creating the offence of armed robbery. B

We have considered these arguments very carefully. Mr Maruma is quite right in

submitting that Act 10 of 1989 does not create the offence of armed robbery. It only

makes provisions for the punishment of different types of robbery. But we think that

it is wrong to say that the offence of armed robbery does not exist under our law. Our

view is that on a true construction of s 285 and 286 of the C Penal Code read

together with s 5(b) and (bb) of the Minimum Sentences Act as amended by Act 10 of

1989, the offence of armed robbery does exist. The provisions of these sections are set

out hereinbelow: Section 285 of the Penal Code provides that: D

`285. Any person who steals anything and, at or immediately before or

immediately after the time of stealing it, uses or threatens to use actual violence to

any person or property in order to obtain or retain the thing stolen or to prevent or

overcome resistance to its being stolen or retained is guilty of the felony termed

"robbery".' E

Section 286 of the Code provides that:

`286. Any person who commits the felony of robbery is liable to

imprisonment for twenty years. If the offender is F armed with any dangerous or

offensive weapon or instrument or is in company with one or more other person or

persons, or if at or immediately before or immediately after the time of the robbery,

he wounds, beats, strikes or uses any other personal violence to any person, he is

liable to imprisonment for life, with or without corporal punishment.' G

And s 5(b) and (bb) of the Minimum Sentences Act as amended by Act 10 of 1989

provides inter alia that:

`5(b) where a person is convicted of robbery, the Court shall sentence him to

imprisonment for a term of not less than fifteen years; H

(bb)‚ where any person is convicted of armed robbery, the Court shall

sentence him to imprisonment for a term of not less than thirty years; . . .'

Upon reading the three provisions together it is discernible that I

1993 TLR p134

KISANGA JA

A s 285 of the Penal Code creates the genus of the offence of robbery by defining

that offence and spelling out the ingredients which constitute it. Section 286 of the

Code prescribes punishment for ordinary robbery and for aggravated types or species

of robbery. Thus the section prescribes the B punishment of twenty years'

imprisonment for ordinary robbery and life imprisonment with or without corporal

punishment as a general punishment for various types or species of aggravated

robbery, including armed robbery. And s 5(b) and (bb) of the Minimum Sentences

Act as amended by Act 10 of 1989 prescribes a minimum of fifteen and thirty years'

imprisonment for ordinary robbery and C armed robbery respectively.

Upon this construction, therefore, the appellants who were found to have been armed

with a pistol at the time of committing the offence, were properly charged with and

convicted of the aggravated species of armed robbery under s 285 and 286 of the

Penal Code. Likewise they were properly D sentenced to a minimum of thirty years'

imprisonment under s 5(bb) of the Minimum Sentence Act as amended by Act 10 of

1989.

The view was also expressed that the charge as laid ought to have cited in the

statement of offence Act 10 of 1989 as the penalty provision on which the charge was

based, and that failure to do so did E prejudice the appellants. We think, however,

that this was not necessary. The statement of offence did cite s 285 and 286 of the

Penal Code as the provisions on which the charge was based. Furthermore the

statement of offence alleged armed robbery and the particulars of the offence alleged

that the appellants used a pistol in committing the offence. That in our view

sufficiently F informed the appellants as to what type of aggravated robbery they

were being charged with, so that they could prepare their defences accordingly. We,

therefore, can find no justification in Mr Maruma's criticism that the charge was

defective.

G Closely connected with this was the allegation that the District Court had acted

in excess of its jurisdiction when sentencing the appellants to thirty years' jail. Mr

Maruma contended that in terms of s 170 of the Criminal Procedure Act the

sentencing power of the District Court is limited to a H maximum of only eight

years' imprisonment, and therefore that court had no authority to impose thirty years

on the appellants. It seems to us, however, that the learned Counsel has

misapprehended the meaning of s 170 of the Criminal Procedure Act. The relevant

provisions of that section state that:

I `170(1) A subordinate Court may, in cases in which such sentences are

authorised by law, pass the following sentences -

1993 TLR p135

KISANGA JA

(a) imprisonment for a term not exceeding five years; save that where a

Court convicts a person for a scheduled A offence it may, if such sentence is

authorised by law, pass a sentence of imprisonment for such offence for a term not

exceeding eight years;'

This is no doubt the provision on which Mr Maruma relied for his submission.

However, the learned B Counsel failed to grasp the import of ss (2) which qualified

the provisions of ss 91) above. The relevant provisions of ss (2) read as follows:

`(2) Notwithstanding the provisions of ss (1) - C

(a) a sentence of imprisonment -

(i) for a scheduled offence which exceeds the minimum term of

imprisonment prescribed in respect of it by the Minimum Sentences Act 1972; D

(ii) . . . .

(b) . . . .

(c) shall not be carried into effect, executed or levied until the record of

the case, or a certified copy of it, has been transmitted to the High Court and the

sentence or order has been confirmed by a Judge.' E

The combined effect of these provisions as reproduced is that a Dubordinate Court

first, is enjoined to impose on the offender the minimum prison term prescribed for

the offence by the Minimum Sentences Act; in other words the Court has no

discretion in the matter to pass any lesser sentence. F And secondly, in a deserving

case, the Court may in its discretion sentence the offender to a prison term which is

longer than the minimum prescribed for the offence but where this is done, it is

required that such longer prison term has to be confirmed by a judge of the High

Court before it is G carried into effect, executed or levied.

In the present case, the prison term of thirty years imposed by the District Court was,

as was shown earlier, the barest minimum prescribed for the offence by the Minimum

Sentences Act as amended by Act 10 of 1989. In terms of ss (2) as reproduced above,

that sentence was clearly within the H sentencing powers of that Court. Indeed, not

only was the District Court obliged to pass that sentence, but it could also in its

discretion if the circumstances called for a stiffer penalty, have meted out a longer

prison term subject, however, to confirmation by the High Court. I

In yet another ground Mr Maruma criticised the High Court for

1993 TLR p136

KISANGA JA

A failing to hold that the trial by the District Court was a nullity under s 225(1) and

(4) of the Criminal Procedure Act. The two subsections of s 225 above cited in effect

make in unlawful for a court in the trial of a case such as this one to adjourn the case

from time to time and to remand the accused in B custody for an aggregate

exceeding sixty days, except upon certificate by specified officers stating the need and

grounds for such further orders of adjournment and of remand custody of the

accused.

Admittedly there was a breach of the mandatory statutory provisions of s 225(1) and

(4) of the C Criminal Procedure Act. The Trial Court made orders of adjournment

and of remanding the appellants in custody for an aggregate of more than sixty days

without any certificate of a specified officer stating the need and grounds for such

further orders. Now the question is whether such D breach rendered the trial a

nullity as urged by Mr Maruma. We think it did not. The mandatory provision under

s 225(1) and (4) mentioned above is one of a procedural nature. It is a provision which

seeks mainly to safeguard the liberty of an accused person. It was not alleged nor is it

apparent from the record, that the breach of that provision has affected the

appellants' trial or prejudiced them in any way, say by making it impossible to find or

to communicate with Counsel. In E our view such breach of a mandatory statutory

provision which breach does not affect the substance of the trial does not render the

trial a nullity. He accordingly rejects this ground. We should add, however, that the

Trial Courts should be more vigilant in the application of s 225(1) and (4) of F the

Criminal Procedure Act above cited in order to make the provisions which seek to

safeguard the rights of the accused meaningful.

Again it was alleged that the Trial Magistrate had failed to call essential evidence.

This was in relation G to the first appellant John Onenge who in his defence of alibi

had claimed that at the time of the commission of the offence he was in police

custody apparently in connection with some other offence. In answer to crossexamination

he is recorded as saying that he did not know the importance of calling

the officer in charge of the police station in question to produce the lock up H

register in support of the alibi. Mr Maruma, therefore, submitted that in those

circumstances the Trial Court erred in failing to call for the said lock up register

which would have provided the necessary evidence to determine whether or not the

appellant could have been at the scene of crime on 25 February 1991 as alleged.

I We can find no merit in this complaint. The appellant was seen

1993 TLR p137

KISANGA JA

and identified at the scene of crime by PW1 and PW3 on 25 February 1991. His coaccused,

Julius A Senene, in his cautioned statement to the police (exh P5) stated

that the appellant called on him on 25 February 1991. And PW9 testified that he and

other members of `Sungu Sungu' arrested the appellant in the dead of the night on

26/27 February 1991 on suspicion when the appellant and B another person tried to

run away with some luggage in their possession upon seeing the `Sungu Sungu'

following them. Thus there was abundant evidence before the Trial Magistrate

showing that on 25 February 1991 the appellant was not at police lock up as he

claimed. He was free and he could C have been at the scene of crime on 25 February

1991, the day of commission of the offence. Thus the lock up register was really not

necessary for the purpose of determining whether or not the appellant was at the

scene at the time of the commission of the offence, and hence the Trial Magistrate

was not obliged to call for it. D

Criticism was also leveled against the procedure of tendering exhibits in evidence.

The radio which was stolen in the course of committing the offence charged in this

case was tendered in evidence as exh P2 by its owner (PW2). Criticising this Mr

Maruma submitted that the radio ought to have been E tendered by the police

officer who was keeping custody of it. However, we can find no substance in this

complaint. PW2 testified that exh P2 was stolen from his home during the

commission of the offence charged and the appellant Julius Senene confirmed that

exh P2 was the same radio which the police had seized from him. Thus so long as the

identify of exh P2 was not in dispute, we could F see no valid reason why its owner

could not properly produce it in evidence.

It should be borne in mind that the object of the rule that an exhibit should be

produced by the person who had custody of it is to ascertain the identity of the said

exhibit as the very one which it is claimed connects the accused with the offence

charged. In the instant case both the prosecution and the G defence are agreed that

exh P2 the radio stolen during the commission of the offence charged is the very one

found in possession of the appellant, thereby implicating him with the offence

charged. In such circumstances it is pointless to insist on the production of the radio

by the police who had kept H custody of it.

And lastly Mr Maruma criticised the High Court for failing to find that the Trial

Magistrate had written the judgment before hearing the defence case. Advancing this

complaint particularly in relation to the I second appellant Julius Senene, the

learned Counsel

1993 TLR p138

KISANGA JA

A contended that the irregularity meant that the Magistrate did not consider the

defence case. This, he want on, necessarily prejudiced the defence thereby vitiating

the whole judgment.

There is no doubt that this is a serious allegation, and we must make it plain that if it

were founded, it B would have far reaching consequences. However, upon a careful

scrutiny of the record, we are of the opinion that the allegation is not substantiated.

The judgment of the Trial Magistrate is about four and a half typed pages. The record

shows that the Magistrate delivered that judgment on the same day at the same sitting

after concluding the defence case and without any adjournment during which C to

compose the judgment. Counsel submitted that such a long judgment must have been

written before the proceedings were concluded and in particular before the defence

was heard. Deferring to an endorsement on the record which shows that the defence

case was adjourned to 4 September 1991 for continuation while the judgment is dated

3 September 1991. Mr Maruma stated that this D confirmed his claim that the

judgment must have been written before the defence was heard.

As intimated earlier, however, we are not satisfied that this allegation has been

substantiated. The second appellant, Julius Senene, was the last to give evidence in

which he mentioned one Jambii as E the person who had brought a radio to him,

and indeed this was the backbone of his defence. That fact is clearly reflected and

duly considered in the judgment of the Trial Magistrate. But a far as we could

ascertain, that fact is not reflected in the evidence of any other witness. Then the

question is: If the Magistrate had written his judgment before hearing the defence

case where did he get this fact F from? We specifically put this question to Mr

Maruma but he could give no answer to it.

Mr Maruma had informed us from the bar that according to his instructions, during

the morning of the G day the judgment was given the Magistrate had recorded the

whole of the defence for the first appellant and the examination-in-chief of the

second appellant Julius Senene. He then adjourned the case for cross-examination of

the appellant Julius which, according to the record, was a brief H covering only

about six lines. After that judgment was delivered very late in the afternoon at about

5 pm. Therefore, it may be that during the long adjournment after the morning

session the Magistrate started to compose his judgment basing it on the bulk of the

prosecution and the defence evidence already recorded and then rounded it off in

Court after the brief cross-examination of the appellant I Julius during the afternoon

session.

1993 TLR p139

On the issue that the defence case was adjourned on 4 September 1991 for

continuation while the A judgment is dated 3 September 1991, we are satisfied that

this was only a mix up by the Magistrate in the recording of dates. The true position is

that the judgment was dated and delivered on 4 September 1991 and not 3 September

1991 as the record purports to show. For Mr Maruma B conceded that the defence of

the second appellant Julius was recorded on 4 September 1991, the day the judgment

was delivered. Yet the endorsement on the record shows that it was recorded on 3

September 1991. It was therefore a slip for the magistrate to endorse that the defence

of the appellant Julius was recorded on 3 September 1991 when in fact it was

recorded on 4 September C 1991. It was equally a slip that he endorsed on the record

that the judgment was dated and delivered on 3 September 1991 when in fact it was

dated and delivered on 4 September 1991.

After a careful examination of the record, we are satisfied that the criticisms leveled

against the D decision of the High Court are unfounded and the appeal is without

merit. The High Court rightly upheld the appellants' convictions and the sentences

imposed on them. The appeal, therefore fails and is accordingly dismissed in its

entirety. E

1993 TLR p139

F