R. v. Timoteo Crim. Rev. 72-M-72; 7/1/72; Kisanga, Ag. J.

 

R. v. Timoteo Crim. Rev. 72-M-72; 7/1/72; Kisanga, Ag. J.

The accused was convicted of failing to comply with a removal order c/s 3(b) of the Townships (Removal of Undesirable Persons) Ordinance. The punishment for such an offence is a fine not exceeding Shs. 200/= or imprisonment not exceeding three months or both such fine and imprisonment. In the instant case, the accused was sentenced to six months conditional discharge under section 38(1) of the Penal Code and ordered to proceed to his home district by the earliest means available and pending such departure, the accused was to remain in police custody. The question then was whether or not the sentence of conditional discharge and the repatriation order were lawful.

            Held: (1)”In the present case since the accused was being sentenced under section 38(1) of the Penal Code it would appear that the maximum prison term of three months specified under section 6(2) of the Ordinance [cap. 104] cannot have any relevance at the time of passing this sentence because the two sentences are quite independent of each other. It seems that the sentence would be improper only if it exceeded the maximum of twelve months as laid down under section 38 (1) of the Penal Code. I think that the maximum sentence of three months’ imprisonment under section 6(2) of the Ordinance[Cap. 104] would be relevant only where the accused is called upon for sentencing after he is shown to have committed any offence during the period of conditional discharge, so that at the time of sentencing the accused after he commits an offence during such period of conditional discharge, the court is in fact sentencing him for the offence under the Ordinance and not under section 38(1) of the Penal Code; and it is only then that it would be valid to contend that the sentence so passed must not exceed the maximum of three months imprisonment as provided under section 6(2) of the Ordinance. I therefore think that the learned trial magistrate was entitled to order six months conditional discharge under section 38(1) of the Penal Code even though this period was longer than the maximum prison term provided under section 6(2) of the Ordinance [Cap. 104]. (2) “I now turn to consider the order of repatriation. In the case of R. v. Paulo Hamisi, (1970) H.C.D. 41, it was held by this Court that the court has no authority to make such an order of repatriation. The power to make such an order is vested only in the Area Commissioner under section 3 of the Ordinance, while the district court is empowered under section 5 of the same Ordinance only to hear appeals against such orders and to try persons accused for violating orders. On that authority, therefore, the order for repatriation in the instant case was ultra vires and is accordingly set aside. It also follows that the related order requiring the accused to be in police custody pending repatriation to Bukoba was ultra vires and is also set aside.”