IBRAHIM HASSAN AND ANOTHER v REPUBLIC 1991 TLR 106 (HC)

 IBRAHIM HASSAN AND ANOTHER v REPUBLIC 1991 TLR 106 (HC)

Court High Court of Tanzania - Tanga

Judge Mushi J

E 26 August, 1991

Flynote

Criminal Practice and Procedure - Sentencing - Punishment changed by statute between time of commission of offence F and conviction -Which sentence to impose - Minimum Sentences Act, No. 1 of 1972 -Interpretation of Laws and General Clauses Act No. 30 of 1972.

Constitutional law - Sentencing - Statutory provisions providing for sentence conflict with Article of the Constitution - Effect. Criminal Practice and Procedure - Adjournments - Adjournments of a batch of 60 days not allowed unless a certificate by authorized person is produced - No certificate produced - Effect.

-Headnote

The two appellants, convicted of armed robbery and sentenced to thirty years imprisonment each with twelve H strokes of the cane, appealed against both conviction and sentence.

Two issues were looked into by the court. The first was whether an accused person can legally be punished by imposing a heavier sentence than the one provided for at the time of the commission of the offence. The second I issue was whether there is an offence of armed robbery in the Penal Code for which the appellants could be convicted and sentenced to 30 years imprisonment.

Held: 

(i) Where an Act constitutes an offence, and the penalty for such an offence is amended between the time of the commission of such offence and the conviction therefor the offender shall be liable to the penalty prescribed at B the time of commission of such offence;

(ii) the trial magistrate was not legally justified to punish the appellants with the penalty provided under Act No. 10 of 1989;

(iii) since there is no such offence as armed robbery in the Penal Code, the trial magistrate was wrong in C sentencing the appellants under section 5 (ii) (bb) of the Minimum Sentences Act for armed robbery which offence the appellants were not charged with and convicted;

(iv) since there was no certificate filed in court by the prosecution stating the need and grounds for further D adjournments, after the expiration of 60 days, the court ought to have either proceeded to hear the case or discharge the accused persons. Since the case did not proceed to hearing the trial magistrate ought to have discharged the accused persons;

(v) the appellants were tried for a non-existent offence. The trial was, therefore, a nullity.

Case Information

Appeal allowed.

No case referred to.

Mramba, for the appellants

Chingwile, for respondent.

[zJDz]Judgment

Mushi, J.: Ibrahim Hassan - 1st appellant and Abasi Selemani Shemweta - 2nd appellant, whose appeals have G been consolidated, were jointly charged and tried for the offence of robbery with violence (according to the charge sheet) c/s 285 and 286 of the Penal Code. Both appellants were convicted as charged, that is to say under section 286 of the Penal Code. In sentencing the appellant, the learned trial magistrate stated, and I quote:

Robbery, armed robbery is a threat in this country and the Government is aware of this, that is why it has increased the sentence to 30 years for those who will be found guilty as amended by Act No. 10/89. The appellants were then sentenced to 30 years imprisonment each and in addition each appellant was to receive 12 (twelve) strokes of the cane. Both appellants are appealing against both conviction and sentence.

At the hearing of the appeal, two important legal issues came up for consideration. One of the legal issues was B specifically raised by the second appellant in his ground No. 12 of his petition of appeal in which he states, and I quote:

That Your Lordship, the offence was committed on 2/12/88 as alleged by the prosecution side, this being before New, Law Reform (Act No. 10 of 1989 Amended) come into force. The trial learned magistrate contradicted himself when sentencing me appellant without looking the particulars of the offence I am facing. 

Although this ground is not elegantly framed, the meaning is however clear. To my understanding the appellant is raising a question as to whether an accused person can legally be punished by imposing a heavier sentence than the one provided for at the time of the commission of the offence.

The second legal point is obvious from the conviction and sentence. The appellants were convicted under section 286 of the Penal Code but sentenced to 30 years imprisonment under section 5 (ii) (bb) of the Minimum Sentences Act as amended by Act No. 10 of 1989. The legal issue is whether there is an offence of armed robbery in the F Penal Code for which the appellants could be convicted and sentenced to 30 years imprisonment. Because of the importance of these two legal points, they were argued first.

The first point to be argued was whether, in view of the fact that the alleged offence was committed on 2/12/88 as stated in the charge sheet, the court was legally justified to punish the appellant by imposing the new sentence of 30 years imprisonment provided for by Act No. 10 of 1989 which sentence is much heavier than the one at the time the offence was committed.

I will consider first the contents of Act No. 10 of 1989 and when it came into operation. Act No. 10 of 1989 has amended several laws. Our immediate concern is the amendment to the Minimum Sentences Act with regard to the offence of robbery.

According to this Act No. 10 of 1989 new Minimum Sentence are provided for, inter alia, I as follows:

Section 5 is amended:

(i) by deleting paragraph (b) and substituting for it the following:

(b) where any person is convicted of robbery, the court shall sentence him to imprisonment for a term of not less than B fifteen years;

(ii) by adding immediately after paragraph (b) the following new paragraphs:

(b) where any person is convicted of armed robbery, the court shall sentence him to imprisonment for a term of not less that thirty years; if convicted of attempted armed robbery, a term of not less than fifteen years; and if convicted of assault with intent to steal, a term of not less than five years.

The first thing to determine is when the act came into operation. This Act was enacted by Parliament of the United Republic as The Written Laws (Miscellaneous Amendments) Act 1989, and it was assented to on 21st of May E 1989 as Act No. 10 of 1989. Section 2 of this Act provides as follows:

The Laws set forth in the first and second columns of the schedule to this Act are hereby amended in the manner specified in the third column.

It is not specifically stated in the act as to when it should come into operation. Under such situation, recourse must be directed to the Interpretation of Laws and General Clauses Act which is Act No. 30 of 1972. Section 10 of this G act is the one which is relevant to this point and it reads:

10.-(1) When any Act or part of an Act is expressed as having come, or as coming into, operation on a particular day, it shall be deemed to have come or shall come into operation immediately on the expiration of the day next preceding such day.

(2) Subject to the provision of subsection (1) every Act shall come into operation on the date of its publication in the Gazette or, if it is provided either in such Act or any other written law that it shall come into operation on some other date, on that date.

By the authority of this provision, Act No. 10 of 1989 was published in the Gazette as Act supplement No. 2 on 26th May, 1989, must be taken to have come into operation on the day it was published. With regard to this appeal therefore, the offence complained of was committed before Act No. 10 of 1989 came into operation since the particulars state that the offence was committed on 2nd of December, 1988.

Before the amendment effected by this Act, the Minimum sentence for robbery was seven (7) years imprisonment. The new amendment has increased the minimum sentence to fifteen (15) years imprisonment. It has also provided for a minimum sentence of 30 years imprisonment for what it is termed Armed Robbery. The question which this court must answer is whether the trial court was legally justified to award the new, and, stiffer sentences as provided for in the amended Minimum Sentences Act for an offence which was committed before the amending law came into force. In other words which punishment is applicable where the punishment is changed between the commission of the offence and conviction. Again to this question, the Interpretation of Laws and General Clauses has an answer. Section 49 of this act states as follows:

49. 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.

It is clear, therefore from the above provision, that unless the contrary intention appears, the appellants in this appeal ought to have been punished under the old law because the offence was committed before the amendment even though the conviction as after the new law had come into operation. This is not, very unfortunately, the end of the matter.

I have deliberately underlined, the clause unless the contrary intention appears - because, apparently, the Minimum I Sentences Act - Act No. 1 of 1972 has a contrary intention. Section 4 of this Act says that:

4. Where any person is, after the date on which this Act comes into operation, convicted by a court of a scheduled A offence, whether such offence was committed before or after such date, the court shall sentence such person to a term of imprisonment which shall not be less than.

The Minimum Sentences Act then provided for various offences. The operative clause is:

Whether such offence was committed before or after such date. It sounds rather unfair. This means therefore that the provision of section 49 of the Interpretation and General Clauses Act quoted above, does not apply to offences falling under the Minimum Sentences Act. It means therefore that in this appeal the learned trial magistrate was legally empowered to impose the new penalties provided under Act No. 10 of 1989.

This is not the end of the matter. There is a constitutional provision touching on this particular point. Section 13 (6)(c) of the Constitution of the United Republic of Tanzania reads:

13(6)- For the purposes of ensuring equality before the law the state shall make provisions:

(c) no person shall be punished for any act which before its commission was not defined as such offence, and no F penalty imposed for any criminal offence shall be heavier than the penalty in force at the time the offence was committed;

This provision is clear and mandatory. However, according to the above provision the State is required to make provisions to the effect that no law contravenes the provision of section 13 (6)(c) as set out - above. It appears to me that under this provision what the State is required to do is to remove from the statute book any law that is contrary to the Constitutional provision. Having regard to what I have stated above with regard to section 4 of the Minimum Sentences Act and section 49 of the Interpretation and General Clauses Act, the State has not acted to make the laws conform with the Constitutional requirement. The question which poses itself now is whether the I inactivity on the part of the state makes the provision of this Constitution not enforceable? I am of settled mind that as of now the constitutional provision is enforceable and any provision of the law which is not in conformity with it must be regarded as having no legal effect. This, is in accordance with section 5 (2) of the Constitution (Consequential, Transitional and Temporary provisions) Act, 1984 - (Act No. 16 of 1984), which made the Fundamental Rights and Duties provided in the constitution enforceable as from March 1988. Before the State Acts to bring all the laws into conformity with the Constitution, the Courts are to construe the existing laws with such modifications, adaptations, qualifications and C exception as may be necessary to bring it into conformity with the provisions of the constitution. This is provided for under section

5 (1) of the Constitution (Consequential, Transitional and Temporary Provision) Act 1984 which states:

3. -(1) Without prejudice to the repeal, revocation or amendment of any existing law, with effect from the commencement of this Act, the existing law shall continue to be the law of Tanzania after the commencement of the Act except in so far as it is amended, modified, repealed or revoked by competent authority or any provision of it expires after the E commencement of the Act. However, the existing law shall be construed with such modifications, adaptations, qualifications and conception as may be necessary to bring it into conformity with the provisions of the Act or as are provided in this Act; and for the avoidance of doubts it is hereby declared that, subject to the modifications, F adaptations, qualifications and exceptions with which the existing law shall be construed and subject also to the other provisions of this Act, the operation of the existing law after the commencement of the Act shall not be affected by the G amendment of the Constitution.

This means therefore that the Minimum Sentences Act and the Interpretation and General Clauses Act must be read H with such modification and adaptation to bring them into conformity with Section 13 (6) (c) of the Constitution. This means therefore that the Clause:

Whether such offence was committed before or after such date.

Appearing in section 4 of the Minimum Sentence Act - 1972, and the clause: "Unless the Contrary intention A appears" appearing in section 49 of the Interpretation and general Clauses Act, must be regarded as having no effect in the face of the constitutional provision quoted above. The result is therefore that 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 as it is the appeal before this court, the offender shall be liable to the penalty prescribed at the time of the commission of such offence. The learned trial magistrate was therefore not legally justified to punish the appellants with the penalty provided under Act No. 10 of 1989.

The other legal point is whether there is an offence of armed robbery in the Penal Code for which an accused person can he convicted and sentenced to thirty years imprisonment as provided for under Act No. 10 of 1989 which amended the Minimum Sentences Act as already set out above. The Minimum Sentences Act does not create offences. It prescribes minimum sentences for already existing laws in various statutes such as the Penal Code. Section 5 (ii) (bb) of the Minimum Sentences Act refer to three district offences namely:

1. Armed Robbery

2. Attempted armed robbery, and

3. Assault with intent to steal.

The Act clearly states that where a person is convicted of any of the three offences, such person shall be liable to the F Minimum Sentence in respect of each. For armed robbery it is 30 years imprisonment. For attempted robbery it is 15 years imprisonment. And assault with intent to steal it is five years. Reading the provisions of the Penal Code and the provisions of the Minimum Sentences Act as amended by Act No. 10 of 1989, apart from the offence of assault with intent to steal provided for under section 288 of the Penal Code which was repealed and replaced under amendments affected under Act No. 10 of 1989, there are no corresponding provisions of Armed Robbery and Attempted Armed Robbery in the Penal Code.

As stated above, the two appellants in this appeal were charged with the offence of robbery with violence c/s 285 and 286 of the Penal Code. The offence of robbery is created by section 286 of the Penal Code. The offence of I robbery is defined by section 285 of the Penal Code as follows:

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.

This is the only definition there is in the Penal Code for the offence as created under section 286. The appellants were convicted as charged, that is under section 286 of the Penal Code. According to the Act No. 10 of 1989, the new minimum sentence for the offence of robbery is 15 years imprisonment. The learned trial magistrate was wrong in sentencing the appellants under section 5 (ii) (bb) of the Minimum Sentences Act for armed robbery which offence the appellants were not charged with and convicted. In any event, as already stated, there is no such an offence of armed robbery in the Penal Code.

There is one small observation which I wish to make. The appellants were charged with robbery with violence c/s 285 and 286 of the Penal Code. According to the definition of robbery under section 285 as set out above, E violence is an ingredient of the offence of robbery. It seems to me that for an offence under section 286 of the Penal Code to charge an accused with robbery with violence, the use of the word violence is superfluous.

Coming back to the appeal before the court, Mr Mramba - learned advocate for the first appellant has complained in his first ground of appeal, and I quote:

1. That the adjournment of the case by the Trial Court for an aggregate exceeding sixty days and the trial of the case thereafter without certificates by the Regional Crimes Officer, State Attorney or Director of Public Prosecutions being filed was in contravention to the provisions of section 225 (4) of the Criminal Procedure Act 1985 and therefore unlawful. The trial ought to be nullified.

Before we proceed further let us see what subsections 4 and 5 of section 225 of

Criminal Procedure Act say.

4. Except for cases involving offences under sections 39, 40, 41, 42, 43, 45, 48(a) and 59, of the Penal Code or offences I involving fraud, conspiracy to defraud or forgery, it shall not be lawful for a court to adjourn a case, in respect of offences specified in the First Schedule to this Act, A under the provisions of subsection (1) of this section for an aggregate exceeding sixty days except under the following circumstances:

(a) Whenever a certificate by a Regional Crimes Officer is filed in court stating the need and grounds for adjourning B the case, the court may adjourn the case for a further period not exceeding an aggregate of sixty days in respect of offences stated in the First Schedule to this Act.

(b) Whenever a certificate is filed in court by the State Attorney stating the need and grounds for soaking a further adjournment beyond the adjournment made under paragraph (a), the court shall adjourn the case for a further period not exceeding in aggregate of sixty days.

(c) Whenever a certificate is filed in court by the Director of Public Prosecutions or a person authorized by him in that behalf stating the need for the grounds for a further adjournment beyond the adjournment made under paragraph

(b), the court shall not adjourn such case for a period exceeding an aggregate of twenty four months since the date of the first adjournment given under paragraph

(a).

5. Where no certificate is filed under the provisions of sub-section (4) the Court shall proceed to hear the case of discharge the accused in the court where the prosecution is unable to proceed with the hearing save that any discharge under this section shall not operate as a bar to a subsequent charge being brought against the accused for the same offence.

Learned counsel argued that the appellants were first charged in court on 9th June, 1989. According to the above provisions, the court is empowered to adjourn the case for an aggregate of 60 days without any condition. Any I further adjournment, these must be a certificate from Regional Crimes Officer; State Attorney or the Director of Public Persecutions. In each case the certificate must state the need and grounds of adjourning the case. Learned counsel stated that the first batch of 60 days expired on 8th of August 1989. Learned counsel stated that the court adjourned the case without any certificate from the Regional Crimes Officer. Mr Mramba stated that the learned trial magistrate acted illegally in adjourning the case without such certificate. According to the counsel the magistrate ought to have refused an adjournment and either proceed to hear the case or discharge the accused. Learned counsel said further that the other batch of 60 days elapsed on 8th October, 1989 and the trial magistrate adjourned the case without a certificate from the State Attorney filed in court stating the need and grounds for further adjournment. The learned counsel submitted that there were two unlawful adjournments which clearly violated the mandatory provisions of section 225 (4) and (5) of Criminal Procedure Act. In that respect the counsel submitted that the trial was a nullity and the court had no power to hear the case which had violated the mandatory provisions of the law.

The provisions under section 225 (4) and (5) are, unlike many others, so clear that there is no possibility of E misunderstanding its meaning. Subsection (4) states that: It shall not be lawful for a court to adjourn a case, in respect of offences specified in the First Schedule to this Act, under the F provisions of section (1) of section for an aggregate exceeding sixty days except under the following circumstances.

There are three circumstances under which the court may adjourn the case in excess of sixty days. These are certificates from the Regional Crimes Officer, State Attorney sand the Director of Public Prosecutions. In case no certificate is filed, subsection 5 provides an answer and it emphatically states:

(5) Where no certificate is filed under the provisions of sub-section (4) the court shall proceed to hear the case or H discharge the accused in the court where the prosecution is unable to proceed with the hearing.

This means that at any stage after the expiration of sixty days, if no certificate is filed to justify more adjournment, the I court can only do one of the two things. The court must proceed to hear the case. If the prosecution is not ready to proceed then the court must discharge the accused person. Under the A circumstances, for the trial magistrate to act otherwise such as adjourning the case, such act is declared to be unlawful.

In the appeal before me, since there was no certificate filed in court by the prosecution stating the need and the grounds for further adjournment, after the expiration of 60 days, the court ought to have either proceeded to hear the case or discharge the accused persons. Since the case did not proceed to hearing, then the trial magistrate ought to have discharged the accused persons.

The Act of the trial magistrate to adjourn the case was an unlawful act. Since the provisions under section 225 (4) C & (5) are mandatory, it means that the continual holding of the accused persons in remand amounted to unlawful detention because legally there was no charge properly before the court for which they could be remanded and subsequently tried. The accused persons, now the appellants, were therefore tried for non existent offence. The trial was therefore a nullity. The proceedings loading to the trial and conviction of the appellants are hereby declared a nullity and the same are accordingly quashed.

The above finding is enough to dispute appeal. But just in case I am wrong, let me consider whether or not there E was sufficient evidence upon which the conviction could properly he based.

The first appellant, Ibrahim Hassan, lived about 250 paces from the shop of the complainant which was broken F during the night. According to the evidence it was alleged that the first appellant was identified among the group of several people who broke and stole from the complainant. Among the witnesses who claimed to have identified the first appellant was PW 3 - Athumani Amiri. This PW 3 - who was 16 years old, told the court that he was sleeping G in the verandah whom he was awakened by the noise of falling articles which had been placed against the door. PW 3 said that when he woke up he lit a candle which the first appellant kicked and it went off. PW 3 said he identified the first appellant with the aid of the candle light.

Again PW 2 - Mwanaisha Amiri told the court that she heard PW 3 shouting that he was dying. When PW 2 came out she saw many people. PW 2 said that one of the robbers flashed torch light with which she was able to identify the first appellant.

The first appellant was found in his house sleeping after the incident. According to the evidence, it appears that there was a lot of commotion at the scene because PW 2 and PW 3 said that they were beaten. It was a dark night. There is no doubt at all that the circumstances were not easy for identification. Candle light which was put off and kicked as described by PW 2 cannot be held to be reliable means under the circumstances of this case, for unmistaken identify of a person. The violence of identification was not water light. The evidence left some doubts as to the identify of the first appellant at the scene.

The second appellant was charged because he was found with a Singer Sewing machine which was allegedly to be among the articles which were stolen from the complainant shop. The second appellant admitted to have been found with the sewing machine. The second appellant told the court that the sewing machine was his property and produced a receipt. The learned trial magistrate found that the receipt produced by the second appellant was not a genuine one and thus rejected it.

The question still remains as to whether the sewing machine was conclusively identified as the one stolen from the complainant shop. There was no documentary evidence such as a receipt from the complainant to prove that the sewing machine was his property. It is recorded that the complainant, who gave evidence as PW 1 - Amiri Kavuki, mentioned the number of the machine as LK 252827 but there is no indication that he stated the number from his memory which is most unlikely.

The same number was mentioned by the 2nd appellant. PW 1 stated that the sewing machine was welded at the bottom and some other visual marks. There is evidence that the complainant was shown the machine when it was recovered from the second appellant's premises. There was no statement to the Police before the article was found describing the same. It is therefore not certain whether or not the description given by the complainant was after he had seen the machine or that he had known of such marks before. Since both parties, i.e. the complainant and the 2nd appellant claimed ownership of the same article, a much higher degree of identification is required before the court can confidently find the article belongs to one of the claimants. In this case the evidence adduced by the complainant with regard the identity of the sewing machine was not enough for the court to conclusively find that it was one of the stolen articles from the shop on the H day the shop was broken into. There is nothing more to connect the second appellant with the case.

For the reasons which I have given above, the appeal for both 1st appellant and 2nd appellant is allowed. The I conviction is quashed and the sentence is set aside. The appellants are to be set free unless they are lawfully otherwise held.

Appeal allowed.

1991 TLR p119

A