CHRISTOPHER MWAKABURA v REPUBLIC 1992 TLR 380 (CA)

CHRISTOPHER MWAKABURA v REPUBLIC 1992 TLR 380 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mnzavas JJA, Mfalila JJA, Mapigano Ag JA

17 December, 1992

Flynote

Statutory interpretation - Offence committed before a new law came into force -

Whether B offence punishable under the new law - S.49 Interpretation of Laws and

General Clauses Act, 1972.

-Headnote

On 14th September 1989 in the District Court of Ilala at Kivukoni, the appellant, C

Christopher Mwakabura was sentenced to 32 years' imprisonment and 6 strokes on a

conviction of robbery with violence c/s 285 and 286 of the Penal Code.

The offence was committed before the Written Laws (Miscellaneous Amendments)

Act, D 1989, Act No. 10 of 1989, came into operation. At the time of the commission

of the offence the minimum sentence for the offence was 7 years' imprisonment as it

used to be provided in the Minimum Sentences Act, 1972. In terms of sentencing the

power of subordinate courts was limited to 8 years' imprisonment in line with section

170(l) of the E Criminal Procedure Act 1985.

On 26th May 1989, Act No. 10 of 1989 came into operation. Among other things, the

Act amended section 5 of the Minimum Sentences Act 1972 by raising the minimum

punishment for armed robbery to 30 years' imprisonment; a punishment which was F

metted on the appellant by the Ilala District Court. The appellant appealed to the

High Court which confirmed his condemnation under Act No. 10 of 1989. On further

appeal;

Held: (i) The appellant was, under section 49 of the Interpretation of Laws and G

General Clauses Act 1972, not liable to the penalty prescribed by Act No. 10 of 1989.

Case Information

Appeal against conviction dismissed, sentence substituted. H

[zJDz]Judgment

Mapigano, Ag. J.A., Mnzavas and Mfalila, JJ.A.: On 14/9/89 in the district court of

Ilala at Kivukoni the appellant Christopher Mwakabura was sentenced to suffer

imprisonment for 32 years and 6 strokes, consequent to his conviction for robbery

with violence contrary to sections 285 and 286 of the Penal Code. The trial magistrate

found I that the appellant and another person

1992 TLR p381

MAPIGANO AG.JA, MNZAVAS JJA, MFALILA JJA

had actually stolen a motor vehicle belonging to the Ministry of Home Affairs on A

19/5/88 and that the vehicle was taken at pistolpoint from the driver. And the

magistrate proceeded to punish him in terms of the Minimum Sentences Act, 1972, as

amended by the Written Laws (Miscellaneous Amendments) Act, 1989, to which we

will refer hereafter as "Act No. 10 of 1989". B

The appellant went to the High Court on appeal challenging the validity of the

conviction and propriety of the sentence. The appeal went before Bahati, J. who

upheld the conviction upon being satisfied that there was enough evidence to support

it. With regard to the sentence, the judge had this to say: C

The appellant was sentenced to 32 years' imprisonment. I am unable to see

where the learned magistrate got the extra 2 years in view of the fact that the district

court has got power to impose a sentence of only 30 years for such offence with or

without corporal D punishment. I therefore find the sentence of 32 years to be

illegal as it contravenes section 5 (bb) of the Minimum Sentences Act as amended by

Act No. 10 of 1989 in that the minimum term of imprisonment for armed robbery is

30 years. The maximum is of course E life imprisonment, but then section 170 of the

Criminal Procedure Act does not give the district court power to pass a sentence

above 30 years. I will reduce the sentence to 30 years imprisonment.

It is evident that Bahati, J. decided the matter on the basis that Act No. 10 of 1989 is

F applicable to the offences specified in that Act, regardless of whether such offences

were committed before or after the Act came into operation, and as we shall have

occasion to see later herein, the learned judge has firmly held to that view.

The appellant has brought a second appeal to us urging five grounds. However there

is G only one ground among them that bears consideration and that is the fifth. The

rest pertain to concurrent factual findings of the courts below and are thus

misconceived as under the law we are, on such second appeal, obliged to confined

ourselves to matters of law. H

The burden of the fifth ground is a technical one. Rephrased, it is this: The District

Court had no power to award a jail sentence in excess of 8 years. That court went into

error when it invoked the jurisdiction vested in it by Act No. 10 of 1989, since the

offence was committed before that Act came into force. The authorities for that

contention are I section 49 of the Interpretation of Laws and

1992 TLR p382

General Clauses Act, 1972, Article 13 (6) (c) of the Constitution of the United A

Republic, and the decision of this Court in Mashaka Shabani v R., Criminal Appeal

No. 85 of 1990 (unreported).

It is true the offence was committed before Act No. 10 of 1989 came into operation. It

is also true that at the time of the commission of the offence the minimum sentence

for the offence was 7 years' imprisonment, vide section 5 (b) of the Minimum

Sentences Act, B 1972, and that the power of a subordinate court in relation thereto

was limited to an award of a term of 8 years, vide section 170 (1) (a) of the Criminal

Procedure Act, 1985.

Act No. 10 of 1989 came into operation on 26/5/89. among other things that Act C

amended section 5 of the Minimum Sentences Act, 1972, as well as the First Schedule

to that Act. It added a new paragraph to section 5, i.e. (bb), by which the minimum

punishment for armed robbery was raised to the long stretch of 30 years; and deleted

paragraph 4 of the First Schedule which related to robbery. D

We turn to the authorities that the appellant has cited to us. We have noticed that

Mashaka Shabani v R. was similar to the present case in all material particulars. The

first appeal in that case also went before Bahati, J. who in his judgment considered the

applicability of Act No. 10 of 1989 to armed robbery committed before the E

commencement of that Act, in the context of Article 13 (6) (c) of the Constitution.

That Constitutional provision reads:

For the purposes of ensuring equality before the law, the state shall make provisions:

F

No person shall be punished for any act which before its commission was not

defined as such offence, and no penalty imposed for any criminal offence shall be

Heavier than the penalty in force at the time the offence was committed. G

The view taken by Bahati, J. was that the sentence of imprisonment for 30 years

handed out by the trial court in that case was not offensive to the above provision,

inasmuch as long before Act No. 10 of 1989 was enacted a competent court could pass

a maximum H sentence of life imprisonment for the offence. The judge went on to

observe:

What has changed now after the enactment of Act No. 10 of 1989 is not the

sentence which could be passed by a competent court for armed robbery, but that the

subordinate court has I

1992 TLR p383

MAPIGANO Ag.JA, MAKAME JJA, KISANGA JJA

been given power to pass sentence of 30 years for armed robbery. A

And he regarded that change as of no consequence.

When the matter came to this Court on a second appeal we differed with Bahati, J.

and held: (a) that Act No. 10 of 1989 has substantially changed the punishment for

armed B robbery, since the minimum has been raised drastically, and "the situation

is not that a court may at its discretion impose a sentence of 30 years' imprisonment

but that a court must impose a minimum of 30 years" and (b) that there was nothing

in the provisions of Act No. 10 of 1989 which indicates that the appellant was not

liable to the penalty C prescribed at the time he committed the offence. We accepted

the submission that the terms of section 49 of the Interpretation of Laws and General

Clauses Act, 1972, debarred a court from applying Act No. 10 of 1989 to offences

which were committed D before that Act came into force. The end-result was that

we substituted the sentence with one of 8 years.

Section 49 of the Interpretation of Laws and General Clauses Act provides: E

Where an act constitutes an offence, and the penalty for such offence is

amended between the time of the commission of such offence and the conviction

therefore, the offender shall, unless the contrary intention appears, be liable to the

penalty prescribed at the time of the commission of such offence. F

It is plain that this section is couched in qualified terms: the prohibition of retroaction

of penalities is conditional to a contrary intention being absent. In relation to this

provision we have paid due attention to section 4 of the Minimum Sentences Act,

which reads: G

Where any person is, after the date on which this Act comes into operation,

convicted by a court of a scheduled offence, whether such offence was committed

before or after such H date, the court shall sentence such person to a term of

imprisonment which shall not be less than ...

Then the section goes on to lay down the minimum penalties of imprisonment for the

scheduled offences. I

1992 TLR p384

MAPIGANO Ag.JA, MAKAME JJA, KISANGA JJA

This section strikes us as probably the most singular feature of the Act. It is hardly A

deniable, however, that the section stipulates the sort of "contrary intention"

envisaged by section 49 of the Interpretation of Laws and General Clauses Act, and

has, therefore, the effect of making the minimum penalty prescribed by any future

enactment amending the B Minimum Sentences Act apply retrospectively to any of

the offences specified in the three Schedules thereto, regard being had to the rule

restated in section 17 of the Interpretation of Laws and General Clauses Act that an

amending Act should be construed as one with the amended Act.

Just the same, we are of the considered and firm view that section 4 above does not C

make Act No. 10 of 1989 operate retrospectively in relation to robbery. The reason is

to be found in Act No. 10 of 1989 itself. As we have already pointed out, this Act

amended the First Schedule by deleting the offence of robbery. We think that this

deletion provides a distinct basis for attributing to the legilature an intention to

display D the provisions of section 4 to the offence, given the meaning attaching to

the term "scheduled offence" by section 3 of the Minimum Sentence Act, namely "an

offence specified in any of the schedules to the act". The interesting if odd aspect of

all this is that robbery is now set apart from the other offences within the ambit of

the Act, in the E sense that it is the only unscheduled offence and wherefore the

only one that escapes the grim grasp of section 4.

We held, therefore, that the appellant was, under section 49 of the Interpretation of

Laws F and General Clauses Act, not liable to the penalty prescribed by Act No. 10

of 1989. With that it becomes unnecessary for us to advert to Article 13 (6) (c) of the

Constitution, and this precludes the more serious exercise of looking into the

constitutionality of section 4 of the Minimum Sentences Act and our jurisdiction to

do so. G

Accordingly, we dismiss the appeal against the conviction and we substitute a

sentence of seven years' imprisonment which is to run from the date of the trial

judgment.

H Appeal dismissed.

1992 TLR p385

A