REPUBLIC v NAFTARI NG'UMBI 1988 TLR 13 (HC)

 

REPUBLIC v NAFTARI NG'UMBI 1988 TLR 13 (HC)

Court High Court of Tanzania - Mbeya

Judge Mroso J

29th January, 1988 C

Flynote

Criminal Practice and Procedure - Jurisdiction - Accused duly convicted and

sentenced to 12 years imprisonment by Court of Resident Magistrate - Whether

s.170(2) of Criminal D Procedure Act, 1985 confers sentencing powers of High Court

on Resident Magistrates.

-Headnote

Accused was prosecuted in the Court of Resident Magistrate for stealing five head of

E cattle valued at shillings 50,000/=. He was duly convicted and sentenced to 12 years

imprisonment by a Senior Resident Magistrate. The case was called on revision and

the issue was whether the import of the saving to s.170(2) of the Criminal Procedure

Act, 1985 is to confer on a Magistrate of or above the rank of Senior Resident

Magistrate F sentencing powers of the High Court.

Held: (i) A subordinate court (unless it has extended jurisdiction under s.173 of the

Criminal Procedure Act, 1985) whether held by District Magistrate or Resident

Magistrate of whatever grade or rank does not enjoy sentencing powers of the High

G Court.

(ii) The word "section" in the proviso to s.170(2) of the Criminal Procedure

Act was a drafting inadvertence. The correct word Intended by the legislature is "Subsection",

the saving, therefore, applies to s.170(2) but not to the whole section. H

Case Information

Sentence quashed.

Cases referred to:

1. Yusuf s/o Issa vR. [1970] HCD n. 275. I

1988 TLR p14

MROSO J

[zJDz]Judgment

A Mroso, J.: The accused was prosecuted in the Court of Resident Magistrate, Iringa

for stealing five head of cattle valued at shillings 50,000/=. That being an economic

crime offence it was made triable by that court upon a certificate of the Principal

State Attorney, under section 12(3) of the Economic and Organized Crime Control

Act, 1984. B The accused was duly convicted and was sentenced to 12 years

imprisonment by Mr. Kajeri, Senior Resident Magistrate. He does not appear to have

filed any appeal. During routine examination of the returns from the Court of

Resident Magistrate, Iringa the record in respect of this case was called for inspection.

Upon inspection it was ordered C that a revision record be opened, to consider

whether the learned Senior Resident Magistrate was competent to award the sentence

of twelve years imprisonment on the accused.

D During the revision proceedings Mr. Lundu, learned state attorney, submitted that

the learned senior resident magistrate was empowered by section 170 of the Criminal

Procedure Act, 1985 to impose that sentence, because it is provided in a saving under

subsection (2) of that section that the section "does not apply in respect of any

sentence E passed by a senior resident magistrate of any grade or rank".

What the learned State Attorney is saying, in other words, is that a resident

magistrate of or above the rank of Senior resident magistrate has the same sentencing

powers as the High Court, and that is the import of the saving in section 170(2) of the

Criminal F Procedure Act, 1985.

Section 166 of the Criminal Procedure Act, 1985 provides for the sentencing powers

of the High Court. It says that the High Court may pass any sentence or make any

order authorised by law, (my underlining for emphasis). Does the saving in section

170(2) of G the Criminal Procedure Act confer on Senior Resident Magistrates the

sentencing powers under section 166 of that Act?

It is true that the saving under section 170(2) says that "this section shall not apply in

respect of any sentence passed by a Senior Resident Magistrate...." A proviso in

section H 7(2) of the Repealed Criminal Procedure Code, Cap. 20 of the laws, which

is the equivalent of the saving in section 170(2) of the Criminal Procedure Act, also

appeared to say that section 7 of the Criminal Procedure Code on the sentencing

powers of a subordinate Court did not apply "in respect of any sentence passed by a

Senior Resident I Magistrate." So, on a superficial reading of the saving already

referred to the learned State Attorney would appear to be right in his submission.

1988 TLR p15

MROSO J

But in fact, with respect, he is wrong. A

The saving cited above appears immediately after the substantive provisions of

subsection (2) of section 170 of the Criminal Procedure Act which stipulates:

(2) Notwithstanding the provisions of subsection (1) - B

(a) a sentence of imprisonment

(i) for a scheduled offence, which exceeds the minimum

terms of imprisonment prescribed in respect of it by the Minimum Sentences Act,

1972;

(ii) for any other offence, which exceeds twelve months; C

(b) a sentence of corporal punishment which exceeds twelve

strokes;

(c) a sentence of a fine or for the payment of money (other than

payment of D compensation under the Minimum Sentences Act, 1972) which

exceeds six thousand shillings; shall not be carried into effect, executed or levied until

the record of the case, or a certified copy of it, has been transmitted to the High Court

and the sentence or order has been confirmed by a Judge. E

Then follows the saving.

It is quite clear, and logically so, that the saving relates to the provisions of subsection

(2), and not to the whole of section 170.

In subsection (1) of section 170 it is stated and I quote for ease of reference:- F

170 (1) A subordinate Court may, in the cases in which such sentences are

authorized by law, pass the following sentences - G

(a) imprisonment for a term not exceeding five years; save that where a

court convicts a person for a scheduled offence, it may, if such sentence is authorized

by law, pass a H sentence of imprisonment for such offence for a term not exceeding

eight years;

(b) a fine not exceeding twenty thousand shillings;

(c) subject to the provisions of the Corporal Punishment Ordinance,

corporal punishment. (My underlining for emphasis). I

1988 TLR p16

MROSO J

A What this means is that a subordinate court (unless it has indented jurisdiction

under section 173 of the Criminal Procedure Act) whether held by a District

Magistrate, a resident magistrate, a senior resident magistrate or a Principal Resident

Magistrate, cannot impose a sentence of more than five years imprisonment for a

non-scheduled B offence, or more than eight years imprisonment for a scheduled

offence. However, even though all District Magistrates and all Resident Magistrates

are empowered to impose the sentences cited above, a sentence of imprisonment

which exceeds 12 months, for a non-scheduled offence, and the minimum sentence,

for a scheduled offence, shall need C confirmation by a Judge, unless the sentences

are passed by a resident magistrate who is of or above the rank of Senior Resident

Magistrate. The word "section" in both the proviso to section (7(2) of the Repealed

Criminal Procedure Code and the saving in subsection (2) of Section 170 of the

Criminal Procedure Act, 1985 was a drafting D inadvertence. The correct word

which was intended by the legislature is "Subsection". The legislature could not have

intended to confer on Senior Resident Magistrates and resident magistrates above

such rank High Court sentencing powers so casually.

E I have not been able (from our resources here) to find much discussion on the

sentencing powers of Senior Resident Magistrates. However, I am in a way supported

on the views I have expressed above by a decision of Makame, Ag. J. - as he then was

- in the case of Yusuf s/o Issa v R. [1970] H.C.D. n. 275. The appellant in that case,

who F had been convicted by the subordinate court on two counts of robbery

contrary to sections 285 and 286 of the Penal Code, was sentenced to three years

imprisonment on one count and four years imprisonment on the second count, the

sentences to run concurrently, plus 24 strokes of corporal punishment. He appealed to

the High Court G against sentence only. On appeal Makame, Ag. J. held:

The Criminal Procedure Code (Amendment) Act 1963 notes after the new

Seventh Schedule that the old sections 7, 8 and 9 of the Criminal Procedure Code are

amended so that among H other things, a subordinate court may pass (a sentence of)

up to five years for a scheduled offence, (this must have been before the passing of

Act No. 2 of 1972) but:

"Notwithstanding the provisions of subsection (1) of this section, a sentence of

imprisonment I for a scheduled offence which exceeds the minimum terms of

imprisonment prescribed

1988 TLR p17

MROSO J

in relation to that offence by subsection (2) of section 4 of the Minimum

Sentences Act 1963 by A more than six months ..... etc. (unless it is awarded by a

senior resident magistrate) shall not be carried into effect ... etc. unless the sentence

or order has been confirmed by the High Court".

The trial magistrate in this case was not a senior resident magistrate .... The

maximum term B the trial magistrate could impose without confirmation, therefore,

was .... (My underlining).

What is being said by Makame, Ag. J. (as he then was) is that the proviso to section

7(2) C of the repealed Criminal Procedure Code on what does not apply to a senior

resident magistrate is the requirement for confirmation of certain sentences passed by

the subordinate court, not that the whole of section 7 of the Criminal Procedure Code

did D not apply to senior resident magistrates.

Another comment on the sentencing powers of a subordinate court can be found in A

Handbook on Sentencing by Brian Slattery, published by the Faculty of Law of the

University of Dar es Salaam, Tanzania in 1970. At page 1 of the book Slattery said: E

the power of District and Primary Courts to impose particular sentences is

sharply restricted by contrast with the High Court, which alone has jurisdiction to

sentence up to the full limits specified above (a list had been drawn by the author of

different offences and their maximum F sentences) (Underlining is mine for

emphasis).

So, it has always been the correct view that all District Magistrates and all Resident

Magistrates of whatever grade or rank have no power or jurisdiction to impose G

sentences which are higher than as provided in subsection (1) of Section 170 of the

Criminal Procedure Act, 1985 and that the saving in subsection (2) of Section 170

relates only to the stipulations contained in that subsection (2).

From the above discussion it follows that the learned Senior Resident Magistrate had

no H power or jurisdiction to impose on the accused the sentence of twelve years

imprisonment. At the time of hearing the revision proceedings three days ago I

quashed that sentence and set it aside. I substituted thereof a sentence of 8 years

imprisonment, which is the highest sentence a subordinate court could impose in the

offence of cattle I theft, even if it were still

1988 TLR p18

A considered a scheduled offence (which is doubtful, in view of the fact that it has

now been listed as an economic offence under Act 13 of 1984).

B Order accordingly.

1988 TLR p18

C