MASUMBUKO RASHID v THE REPUBLIC 1986 TLR 212 (HC)

MASUMBUKO RASHID v THE REPUBLIC 1986 TLR 212 (HC)

Court High Court of Tanzania - Tabora

Judge Chipeta J

9th September, 1987. D

CRIMINAL APPEAL 72 OF 1986

Flynote

Criminal Practice and Procedure - Contempt of Court - Failure of magistrate to follow

laid down procedures - Accused condemned unheard - Incurable irregularity. E

Administrative law - Natural justice - Principles of - Accused condemned unheard -

Fundamental irregularity.

Criminal Practice and Procedure - Sentencing - Omnibus sentence imposed on two

counts - Whether court imposing such sentence is rendered functus officio with

regard to the same. F

-Headnote

The appellant and three others were jointly charged with robbery with violence and

being in unlawful possession of a firearm. In the course of the proceedings before the

trial court the accused persons exhibited conduct which amounted to contempt of

court whereupon the magistrate peremptorily convicted them of contempt of court G

without following laid down procedure. At the end of the trial all the accused

persons were convicted as charged. The file was then sent to the High Court for

sentencing. To each of the accused the court meted out an H omnibus sentence of ten

years' imprisonment. On appeal the High Court considered the legality of the

procedure adopted by the trial court in relation to the offence of contempt of court.

In addition the Court considered whether it was rendered functus officio with regard

to the question of sentence.

Held (i) When a court takes cognisance of an offence of contempt of court, it is

essential that the court should I frame and record the

1986 TLR p213

CHIPETA J

substance of the charge, read such charge to the accused who should then be called

upon to show cause why he A should not be convicted on the charge; and the accused

should be given a fair opportunity to reply. Besides, the record of the court should

contain an adequate note of the accused person's reply, if any, as well as the court's

decision; B

(ii) the accused persons were condemned unheard; and, that violated the

principle of natural justice that a man should not be condemned unheard;

(iii) failure to follow the procedure amounted to a fundamental, incurable

irregularity; C

(iv) where a court, per incuriam, omits to pass sentence in respect of some

counts on which the accused person is convicted, that court should not be deemed to

be functus officio with regard to passing a sentence or sentences on the remaining

count or counts, particularly where the record suggests that the omnibus sentence D

related to a particular count.

Case Information

Order accordingly

Cases referred to: E

1. Joseph Odhengo s/o Ogongo v R, 21 EACA 302

2. Reg. v Gray [1970]2 Q.B. 36.

3. Abdullah Ibrahim v.R. [1960] E.A. 43

4. Ibrahim Ramadhan v.R. [1969] H.C.D. 218. F

Kwikima, for the appellants.

[zJDz]Judgment

Chipeta, J.: In Kigoma District Court, the appellant, Masumbuko Rashidi (the first

accused at the trial) and G three others, namely, Samson Joseph (2nd accused),

Atanasi Nahimana (3rd accused) and Mjanaheri Shomari (4th accused) were jointly

charged on two counts: robbery with violence and unlawful possession of firearm c/ss

285 and 286 of the Penal Code, and sections 13 (1) and 31 of the Arms and

Ammunition Ordinance, H respectively. They were all convicted as charged and

were committed to this court for sentencing.

In this Court's Miscellaneous Criminal Cause No. 8 of 1986 this Court (Mchome,

P.R.M. - extended jurisdiction) sentenced each of the convicts to ten years

imprisonment. I

In view of the fact that the four accused persons were convicted on both counts, the

sentence of ten years imprisonment appears to

1986 TLR p214

CHIPETA J

be omnibus. Separate sentences ought to have been passed. I will return to this

question later in this judgment. A

Dissatisfied, the appellant now appeals against the convictions and sentence. For ease

of reference, I propose to retain the descriptions of the accused persons as they were

at the trial.

Before I proceed to deal with the appeal in so far as it relates to the two counts, I

propose to deal with one B matter that arose in the course of the proceedings before

the trial court. The four accused persons first appeared before the District Court on

26th December, 1985 and entered pleas of "not guilty". They made no request

whatsoever. C

On 8th January, 1986, the case came up for hearing. It was then that the four accused

persons told the court that they wanted to engage an advocate. The case was then

adjourned to the following day. The accused D persons repeated their request, but

the learned trial magistrate ruled that the case should proceed and that the charge be

read over to them. At that point, the accused persons left the dock in protest.

Without further ado, the learned magistrate peremptorily convicted them of

contempt of court and sentenced each of them to six months imprisonment. The case

was then adjourned to 23rd January. E

On that day Mr. Kwikima, learned advocate, appeared for the four accused persons

and requested for an adjournment to enable him to take instructions. The case was

then adjourned to 21st February, 1986 and later F to 20th March, 1986. On that day

Mr. Kwikima did not appear. The accused persons, again said that they wanted their

advocate, but Mr. Kwikima, who happened to be within the court premises, had no

instructions. When the charges were read over to them, the 4th accused walked out

of the dock, and the trial magistrate, peremptorily convicted him of contempt of court

c/s 114 (1) of the Penal Code and sentenced him to twelve G months imprisonment.

It has repeatedly been held by superior courts that when a court takes cognisance of

an offence of contempt of court, it is essential that the court should frame and record

the substance of a charge, read such charge to the H accused who should then be

called upon to show cause why he should not be convicted on the charge; and the

accused should be given a fair opportunity to reply. Besides, the record of the court

should contain an adequate note of the accused person's reply, if any, as well as the

court's decision. (See Joseph Odhengo s/o Ogongo v R., 21 E.A.C.A. 302.) I

1986 TLR p215

CHIPETA J

In the present case, that procedure was totally disregarded; no charge was drawn up,

let alone read over to the A accused persons, and the accused persons were given no

opportunity at all to say anything in reply. They were condemned unheard. It may

well be that their conduct did amount to contempt of court in that their conduct can

B be said to have been calculated to obstruct or interfere with the due course of

justice or the lawful process of the court. (See Reg. v Gray, [1970] 2 Q.B. 36, at page

40). But where the basic principle of natural justice C that a man must not be

condemned unheard has been violated following such breach of procedure ought not

be sustained, for such irregularity is fundamental and, therefore incurable.

For these reasons, all the convictions for contempt of court are hereby quashed and

all the sentences in relation thereto set aside. D

I now turn to the appeal against convictions for the offences of robbery with violence

and unlawful possession of a firearm. The prosecution's evidence is to the effect that

during the night of 21st December, 1985, at about E 2.30 a.m.. at Mwamgongo village

in Kigoma District, while the complainant (P.W.3) was away on safari, his wife, one

Zainabu Issa (P.W.1) was aroused from sleep by loud bang on her door. When she

peeped through the window, she saw four bandits roaming around her premises. The

bandits then forced the door open and rained bullets on the walls of the house using a

machine gun. The bandits then entered the house and started F ransacking it. They

stole therefrom cash and numerous valuables which included radios, a shot gun,

lamps and clothes all valued at shs.257,180/=.

Apart from noting that the bandits numbered about four, P.W.1 and her children

were too terrified to be able to identify any of the bandits and she did not dare raise

an alarm. G

After the bandits left with their booty, P.W.1 gathered courage and raised an alarm.

Many neighbours responded to the alarm. Among the first people to arrive at the

scene was one Amri Swalehe (P.W.3), who is a brother of P.W.2. H

The people who responded to the alarm decided to hunt for the culprits and at the

same time send a report to police. They split into two groups: one group was to go

and report the incident to police, and the second, in I which P.W.3 was, to try and

locate the culprits. The latter group set out on their mission following a path in the

hills as they believed, correctly that was the route the bandits had taken.

1986 TLR p216

CHIPETA J

Meanwhile a militia man of Mwamgongo village, one Mohamed Said (P.W.4) was

walking along the same path A towards Mwamgongo village. On the way, he met

two people who turned out later to be the second and third accused persons, P.W.4

noticed that the two people were carrying a bag and a box like container which was B

covered with a black coat. As he had no reason to suspect the two men, P.W.4

walked on.

On arrival at Bubango village, P.W.4 met P.W.3's group, P.W.3 then told P.W.4 that

P.W.2's house had been broken into by armed bandits and that P.W.3 and his group

were looking for the bandits. P.W.4 then recalled C having met the second and third

accused persons earlier. So he decided to join P.W.3's team so as to find the two men.

On arrival at the home of one Shabani Gwango, a lorry came and the team boarded it.

After travelling for about five minutes, they saw the two men. P.W.4 then told the

driver to stop and the second and third accused D persons unsuspectingly boarded it.

P.W.4 immediately started interrogating the two men as to what they were carrying.

The second accused's luggage was found to contain a radio, and that of the third

accused had a radio and a lamp, P.W.3 easily E identified these articles to be the

property of P.W.2. P.W.4 then arrested the two men, and the lorry moved on.

After travelling a short distance, P.W.4 saw three men ahead. As fate would have it,

the three men, who turned out to be the appellant, the 4th accused and third person

who later skipped, the three men signalled the lorry to F stop. The lorry stopped and

the three men boarded it with their luggage. P.W.4 tried to question them, but the

three men were uncooperative and hostile. Remembering that P.W.3 had said that

the bandits had been armed, P.W.4 decided to play it cool. He then whispered to the

driver to drive straight to Mwandiga police station. G

On arrival at Mwandiga Police Station, the appellant and another suspect jumped off

the lorry and took to their heels. They were chased and the appellant was

apprehended, but his colleague could not be apprehended. He is still at large. H

At the police station, the appellant was found in possession of clothes and a lamp

which P.W.3 and P.W.2 later easily identified to be some of the property stolen from

P.W.2's house. the appellant and his three co-accused persons were then re-arrested

and charged accordingly.

In his defence, the appellant simply described the events leading up to his arrest. He

said that on the day of his I arrest he was

1986 TLR p217

CHIPETA J

on his way to Gungu village and on the way he boarded a lorry up to Mwandiga. He

then disembarked and A started for a bus stand but he was stopped and arrested by

police officers.

After evaluating the evidence before him, the learned magistrate believed the

prosecution witnesses to be truthful B and rejected the appellants' bare denial. He

accordingly found as a fact that some of the articles stolen from P.W.2's house were

found on the person of the appellant, and that the appellant's protestations of

innocence were hollow. Applying the doctrine of recent possession he convicted all

the four accused persons as charged.

It is a settled principle of law that the possessor of goods recently stolen may fairly be

regarded as being the C actual thief or else a guilty receiver. His possession raises

also, albeit less strongly, a presumption of his guilty connection with any further

crime that accompanied the theft, such as burglary, robbery or murder. (See Abdullah

Ibrahim v R., [1960] E.A. 43). To put it differently, possession by an accused person

of property proved to have been very recently stolen can support a presumption that

the possessor was involved in the commission of the offence which accompanied the

theft. (See Ibrahim Ramadhani v R. [1969] H.C.D. No. E 218).

In the present case, the articles found in possession of the appellant were clearly

identified to be part of the articles stolen from P.W.2's house in the course of a

robbery only a few hours earlier. The doctrine of recent F possession, therefore, was

correctly applied by the trial court. That the appellant could not have been

innocently in possession of those articles is further demonstrated by the fact that

immediately on arrival at Mwandiga police Station, the appellant took to his heels.

In sum, the prosecution's evidence fully justified the appellant's convictions. The

convictions, therefore, were inevitable.

I now turn to the question of sentence. As pointed out earlier, Mr. Mchome, P.R.M.

(extended jurisdiction) G passed a single sentence instead of two separate sentences.

The question that arises, then, is whether this court is functus officio with regard to

that question of sentence.

I am not aware of any direct authority on this point, but I humbly take the view that

where a court, per incuriam, H omits to pass sentence in respect of some counts on

which an accused person is convicted, that court should not be deemed to be functus

officio with regard to passing a sentence or sentences on the remaining count or I

counts, particularly where the record suggests that the omnibus sentence related to a

particular count. I am fortified in

1986 TLR p218

this view by the fact that this court has often held that where a trial court omits to

comply with statutory A provisions such as those in section 27 of the Road Traffic

Act, 1973, such court is not functus officio in that regard.

In the present case, the record of this court in the sentencing proceedings show that

Mr. Mchome had in mind the first count, for he repeatedly refers to "the offence of

robbery". B

On the basis of the foregoing, I am of the view that it is quite proper for me to pass

sentences in respect of the second count.

The question that next arises is whether it would be proper for me to pass sentences

on the accused persons C without offering them an opportunity of being heard. I do

not think that their presence is necessary. I say so because they were given that

opportunity at the time the sentence of ten years imprisonment was passed, and they

addressed the court in mitigation. I propose to use those pleas. Besides, I think it

would be superfluous to D cause them to appear in view of the sentences and orders I

propose to impose. Having considered the seriousness of the offence and the accused

persons' pleas in mitigation, I hereby sentence the appellant and his three co-accused

persons to five (5) years imprisonment in respect of the second count to run

concurrently with E the sentence of ten years imprisonment earlier passed. In fine,

this appeal is dismissed in its entirely.

Appeal dismissed.

1986 TLR p218