Republic v Abdallah Selemani 1983 TLR 215 (HC)

REPUBLIC v ABDALLAH SELEMANI 1983 TLR 215 (HC)

Court High Court of Tanzania - Dodoma

Judge Lugakingira J

August 12, 1983

CRIMINAL REVISION 21 OF 1983

Flynote

Criminal Practice and Procedure - Sentences - Power of confirmation of sentence -Whether it can be exercised in relation to sentences illegally imposed. Criminal Practice and Procedure - Sentences - Enhancement of sentence - S.329 of the Criminal Procedure Code. Cap. 20 - Order of enhancement not to prejudice accused.

Criminal Law - Minimum Sentences Act - Whether offence against unregistered Ujamaa A Village could be brought within the Minimum Sentences Act. 1972.

-Headnote

The accused pleaded guilty to a charge of stealing by servant and was on conviction sentenced to six years' imprisonment. He stole Shs. 43,921/05 the property of an Ujamaa village of which he was an accountant. The record was forwarded to the High Court for confirmation of sentence. The matter also attracted revision which was accordingly directed.

Held: 

(i) Where there is no indication whether an Ujamaa village was registered, offence against the same cannot fall within the ambit of the Minimum Sentences Act, 1972:

(ii) the court's power of confirmation of sentences can only be exercised in relation to sentences legally passed; an illegality cannot be confirmed;

(iii) enhancement of sentence should not be made to the prejudice of the accused person, for example, where he cannot be given an opportunity to be heard.

Case Information

Order accordingly.

No case referred to.

[zJDz]Judgment

Lugakingira, J.: The accused pleaded guilty to a charge of stealing by servant and was on conviction sentenced to six (6) years imprisonment. He stole Shs. 43,921/05 the property of an ujamaa village of which he was an accountant. After sentencing, the trial Senior District Magistrate forwarded the record here for confirmation of sentence. I thought the matter attracted revision and directed accordingly.

Under s.7(1) (a) of the Criminal Procedure Code the maximum sentence which may be imposed by a subordinate court is imprisonment for five years, unless otherwise stated. However, where a court convicts a person for a scheduled offence, it may, if such sentence is authorised by law, pass a sentence of imprisonment for such offence for a term not exceeding eight years. In the instant case there was no indication in the facts adduced or in the sentencing remarks whether the ujamaa village was registered so as to I bring the offence within the ambit of the Minimum Sentences Act. It is only on the file cover that I see the entry "Under the Minimum Sentences Act No. 1/72", but that alone does not assure me of the status of the village. It seems to me, therefore, that the trial magistrate's powers in this case were limited to five years.

I feel, quite perfectly, that the sentence imposed in this case was merited even if in excess of the trial magistrate's power of sentencing. The question is whether it can be confirmed. It appears to me, rather regrettably, that the answer must be in the negative. I think I am correct in saying that this court's power of confirmation can only be exercised in relation to sentences legally passed. An illegality can not be confirmed. I have also turned to the provisions of s. 329(1) (a) of the Criminal Procedure Code and considered C whether, in the alternative, the sentence may be sustained by way of enhancement. But this provision has to be read with subsection

(2) which stipulates that no order may be made to the prejudice of an accused person unless he has had an opportunity of being heard. Enhancement is certainly to the prejudice of an accused and in this case it has not been possible to give the accused the opportunity to be heard. All in all, I cannot find my way to sustain the sentence.

For these reasons I will, albeit reluctantly, reduce the sentence to five (5) years' imprisonment. It is so ordered.

Order accordingly.

1983 TLR p217

F