Yusuf Masudi v Republic 1983 Tlr 128 (Hc)

YUSUF MASUDI v REPUBLIC 1983 TLR 128 (HC)

Court High Court of Tanzania - Tabora

Judge Chipeta J

June 9, 1983

CRIMINAL APPEAL 38 OF 1982 F

Flynote

Criminal Practice and Procedure-Sentence passed by a subordinate court illegal (Minimum Sentences Act, 1972) - Duty of appellate court.

-Headnote

On 6th January, 1983 the High Court dismissed the appellants' appeal against conviction. On the question of sentence the High Court held that the sentence of four years passed in respect of the appellants was illegal in that it was contrary to the provisions of the Minimum Sentences Act, 1972; the court, however, ordered the appellant to be called upon to show cause why their sentences should not be enhanced. The appellants submitted that to enhance the sentences would be unjust to them for they were not aware that the offences were scheduled under the Minimum Sentences Act, 1972.

Held: Where a sentence passed by a lower court is illegal, a superior court is bound in law to rectify such a sentence, even if the result of such a course being taken is to cause hardship to the convict.

Case Information

Order accordingly.

Case referred to:

DPP v Bunyinyiga Kasiri and Another [1978] LRT n.1

Ntabaye for the appellants.

[zJDz]Judgment

Chipeta, J.: On 6th January, 1983, I dismissed the appeal against conviction by Yusuf Masudi, hereinafter referred to as the first appellant. On the question of sentence, held that the sentence of four years' imprisonment passed in respect of the 1st appellant, and sentences of fines passed in respect of the original 4th and 5th accused persons, hereinafter referred to as the second and third appellants, were illegal in that they were contrary to the provisions of the Minimum Sentences Act, 1972. I accordingly ordered that the appellants be called upon to show cause why their sentences should not be enhanced.

Mr. Ntabaye, for the appellants, submitted that to enhance the sentences would be unjust to the appellants who had not been aware that the offences were scheduled under the Minimum Sentences Act, 1972. For my part, I see no reason to change my view that the sentences were illegal. As for the undesirable consequences that are likely to flow from the enhancement of the sentences, I only wish to say that where a sentence passed by lower court is illegal a superior court is bound in law to rectify such a sentence, even if the result of such a course being taken is to cause hardship to the convict.

I am fortified in this by the decision of the Court of appeal for East Africa in the case of D.P.P. v Bunyinyiga Kasiri and Ano., [1978] LRT n. 1. In that case illegal sentences were imposed on the respondents and by the time the Court heard the appeal by the D.P.P., the respondents had since been released. In allowing the appeal, the Court held that where an appeal court declares a sentence of a lower court illegal, e.g., because it offends the Minimum Sentences act, it had no power to prevent the due process of the law being carried out and must impose the correct sentence even if this leads to undesirable consequences.

That being so, and in view of my earlier finding, the sentences imposed on each of the appellants are hereby set aside and substituted therefor is a sentence of five years' imprisonment in respect of each appellant. The fines imposed on each of the 2nd and 3rd appellants, if paid, shall forthwith be refunded to them.

Order accordingly.

1983 TLR p130

C