RAMADHANI MASHA v REPUBLIC 1985 TLR 172 (HC)

RAMADHANI MASHA v REPUBLIC 1985 TLR 172 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

June 3, 1980

CRIMINAL APPEAL 15 OF 1980 G

Flynote

Criminal Practice and Procedure - Sentencing - Accused sentenced without first

being convicted - Whether lawful. H

-Headnote

In a criminal trial for a charge of being in possession of property suspected of having

been stolen, the trial court magistrate, after hearing the evidence of both the

prosecution and the defence, proceeded to sentence the appellant to imprisonment for

a term of six months. But he did so without first convicting him . Four months later,

the magistrate I wrote a judgment convicting the appellant as charged.

1985 TLR p173

SISYA J

Held: In a criminal trial, where it is decided that the accused person is guilty, the

basic A elements of the decision of the court are conviction and sentence, with the

former being a prerequisite of the latter; as there was no conviction when the

appellant was sentenced, there was no decision of the court and, the error being

incurable under s. 346 of the B Criminal Procedure Code [now s. 388 of the Criminal

Procedure Act, 1985], the sentence passed in this case was unlawful.

Case Information

Appeal allowed.

No cases referred to. C

W.R. Mramba, for the appellant.

J.S. Mwale, for the respondent.

Judgment

Sisya, J.: The appellant appeared before the District Court at Tanga D and pleaded

not guilty to a charge of being in possession of property suspected to have been stolen

or unlawfully obtained contrary to section 312(1) of the Penal Code as amended by

Act No. 26 of 1971. Trial commenced and proceeded on 3.10.79 before E the

Resident Magistrate (W.N.B. Kapaya Esq.), Tanga. The witnesses testified on the

Prosecution side and then, upon finding that a prima facie case had been made out

sufficient to require him to make a defence to the charge, the appellant too gave

evidence in his defence. However, he had no witness to call and, consequently,

therefore, none gave evidence on his behalf. F

Immediately after the appellant's evidence in defence the learned Resident Magistrate

recorded and I quote from the record of proceedings:-

Pros: The accused is a first offender - but these offences are too

common. I request for a deterrent sentence as an example. G

Mitigation: I have eight children to support and an ageing mother, I look

after them.

These are the usual preliminaries before sentence and indeed, as the record shows, H

thereafter, the learned Resident Magistrate proceeded to sentence the appellant to

imprisonment for a term of six months. He also made an order for forfeiture of six

bundles of beads, Exh Pl, which incidentally, were the offending objects in the

matter. No conviction was entered against the appellant before sentence then.

However, almost I four months later, i.e. on 30/1/80, the learned Resident Magistrate

wrote

1985 TLR p174

SISYA J

a judgment in which he ended up by convicting him, i.e. the appellant, as charged. A

In his petition of appeal which was drawn on his behalf by learned Counsel, Mr.

Mramba, the appellant advances three reasons of appeal namely: B

"1. That the learned trial Magistrate erred in law in sentencing the

appellant before judgment and conviction.

2. That on the evidence adduced there was no sufficient evidence upon

which a conviction could be founded.

3. That the sentence of six months imprisonment was excessive in the

circumstances of C the case."

At the hearing of the appeal Mr. Mramba for the appellant, wisely, withdrew the

second and third grounds of appeal. However, on the first ground of appeal Mr.

Mramba D submitted that in terms of section 210 of the Criminal Procedure Code it

was imperative on the learned Resident Magistrate to enter a conviction prior to

sentence. This implies the writing and/or delivery of a judgment whose mode of

delivery and its contents are laid down in section 170 and 171 of the Criminal

Procedure Code, respectively. Mr. Mramba contended that the learned Resident

Magistrate did not comply with these E provisions of the Code and therefore the

passing of sentence before conviction was unlawful. He, however, left it to the Court

to make the necessary orders.

The learned State Attorney, Mr. Mwale, shared the same views with Mr. Mramba for

the appellant in this matter and, consequently, he followed suit in leaving it to this

Court F to make the necessary orders.

It is convenient at this stage to set out the provisions of Section 210 of the Criminal

Procedure Code. They read:

210. The Court having heard both the complainant and the accused person

and their G witnesses and evidence shall convict the accused and pass sentence upon

or make an order against him according to law, or shall acquit him, or shall dismiss

the charge under section 38 of the Penal Code. H

It sounds clear to me from the above that in a criminal case where the trial Court has

decided that the accused person is guilty there are two basic elements of "the

decision" and these are conviction, and sentence. The former, i.e. conviction, being a

pre-requisite to the latter, i.e. sentence. As aforementioned, the learned Resident

Magistrate, in the I instant matter, did not enter any conviction prior to sentence.

That being so, particularly

1985 TLR p175

because the conviction is a basic element of the decision in the language of section

210 A of the Criminal Procedure Code and a prerequisite to sentence, I do not

hesitate to find, which I do, that at the time the appellant was sentenced there was no

decision of the Court at all. The sentence that was nevertheless, passed was,

therefore, unlawful and it is so declared. The fact that, as aforesaid, the conviction

was entered B approximately four months later is immaterial.

Basic and fundamental as this error is I am of the considered opinion that this is not a

fit case for invoking provisions of the "curative" section, i.e. section 346 of the

Criminal Procedure Code. I may, however, add that the position would, to my mind,

have been C completely different had the learned Resident Magistrate entered a

conviction or words to the following effect, that is to say "Accused is found guilty and

convicted as charged," immediately after the defence case and before the learned

Public Prosecutor's plea for a deterrent and exemplary punishment which, itself, is I

must say with respect, of dubious legal basis. D

The question that now arises is what order is befitting in this case with regard to the

sentence? The answer is simple. In so far as the said sentence has been found and

declared to be unlawful the same cannot be allowed to stand and it is accordingly

quashed and set aside. I have considered the possibility of remitting this record to the

E District Court with directions that the Court now proceeds to pass proper sentence

on the appellant. However, I am of the view that that cannot be done without

prejudicing the appellant who must have, by now, completed serving the sentence

unlawfully passed on him by the trial Court. In the circumstances I am loathe to

make any further orders. F

Appeal allowed

1985 TLR p175

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