ERNEST JOSEPH NYATANDO v REPUBLIC 1983 TLR 170 (HC)

ERNEST JOSEPH NYATANDO v REPUBLIC 1983 TLR 170 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mnzavas JK

July 27, 1984

CRIMINAL APPEAL 101 OF 1981 B

Flynote

Evidence - Witness cannot be prosecuted on the basis of incriminating evidence he

gives (s. 141 Evidence Act 1967).

Criminal Law - Punishments - A person detained under the Preventive Detention

Act, 1962, C Cap. 490 - Whether already punished by virtue of s.21 Penal Code,

Cap. 16.

-Headnote

The appellant was convicted of stealing by public servant and being in unlawful

possession of offensive weapons c/s 265 and 270 of the Penal Code and c/s 8 (1) of the

National Security Act, 1970. After conviction the trial court was of the opinion that a

D greater punishment should be inflicted for the offences than the court had power

to inflict and it accordingly committed the appellant to the High Court for sentence.

Dissatisfied by the finding and order of the lower court the appellant appealed to the

high Court. E

Held: (i) Where a witness incriminates himself when giving evidence for the

prosecution he becomes immune by virtue of s. 141 of the Evidence Act, 1967 from

being prosecuted on the basis of the evidence he gives;

(ii) By virtue of section 21 of the Penal Code, it is unlawful for any court to F

punish the appellant twice for the same offence; therefore a person being punished by

being detained under the Preventive Detention Act (Cap. 490), cannot be punished a

second time by a court of law in respect of the same offence. G

Case Information

Order accordingly.

No case referred to:

Ballonzi for the appellant. H

Chiza for the respondent.

[zJDz]Judgment

Mnzavas, J.K.: In Kisutu RM's Court Criminal Case No. 868/1979 the Appellant,

Ernest Joseph Nyatando, was convicted of stealing by Public Servant and being in I

unlawful possession of offensive weapons c/s 265 and 270 of the Penal Code

1983 TLR p171

MNZAVAS JK

and c/s 8(1) National Security Act, 1970. After conviction the trial court was, taking

into A account the nature of the offences, of the opinion that a greater punishment

should be inflicted for the offences than the court had power to inflict and it

accordingly invoked its powers under section 5A of the Criminal Procedure Code and

committed the appellant to this Court for sentence. B

Dissatisfied by the finding and order of the lower court the appellant has appealed to

this Court. Arguing against the finding and order of the lower Court Mr. Ballonzi

learned counsel for the appellant, submitted that the trial court erred in believing the

evidence in support of the prosecution case, which evidence, it was argued, was full of

C contradictions. It was the learned counsel's submission that the lower court erred

in not accepting appellant's defence which, it was argued, was cogent and without

contradictions.

It was also the defence argument that the decision to prosecute the appellant was

contrary to the provisions of section 141 of the Evidence Act, 1967. It was submitted

D that the appellant having been a witness for the prosecution was under section 141

of the Evidence Act immune from prosecution in connection with the same case.

Finally Mr. Ballonzi argued that the appellant is detained under the Preventive

Detention E Act - Cap 490 of the laws for the same offences and that as such it

would, it was argued, be illegal for the Court to punish him again for the same

offence. In support of this argument the Court was referred to section 21 of the Penal

Code.

In rebuttal Mr. Chiza, learned state attorney, argued that the decision of the lower F

court was based on the credibility of the witnesses and the trial court was in a better

position to assess the credibility of the witnesses than this court.

As for the argument that Biron, J. had no power to order that the appellant (who had

given evidence for the prosecution) be charged with the same offences the learned G

state attorney was of the view that the learned Judge had such power. In support of

his argument the Court was referred to section 322 of the Criminal Procedure Code.

The learned state attorney however concurred with the defence argument that under

the provisions of section 21 of the Penal Code, the appellant cannot be punished again

for H the same offence bearing in mind that he has already been punished by being

put in detention. I would first like to deal with the argument that my learned brother

Biron J, had no power to order that the appellant be charged with the same offence in

which he had given evidence as a prosecution witness. I

1983 TLR p172

MNZAVAS JK

The answer to this question is found under section 141 of the Evidence Act, 1967

which A says:

A witness shall not be excused from answering any question as to any matter

relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon

the ground that the B answer to question will incriminate... such witness... Provided

that no such answer, which a witness shall be compelled to give, shall subject him to

any arrest or prosecution, or be proved against him in any subsequent criminal

proceeding except a prosecution for giving false evidence by such answer. C

It is amply clear from the decision of Biron J, that the appellant had incriminated

himself when giving evidence for the prosecution. Having incriminated himself when

giving evidence I tend to agree with the learned defence counsel's argument that the

appellant D was, under the provision of section 141 of the Evidence Act quoted

above, immune from prosecution. But as I have no power to undo the decision of

Biron, J. I leave the matter at that.

Coming to the question of conviction by the lower court it is my view that apart from

the E provisions of section 141 of the Evidence Act, there was ample evidence in

support of the lower court's finding of guilty.

As for the question of sentence it is not all in dispute that the appellant, Ernest Joseph

Nyatando, is in detention (under the Preventive Detention Act) for the same offences.

F

Section 21 of the Penal Code says:

A person shall not be punished twice, either under the provisions of this Code

or under the G provisions of any other law for the same offence.

That being the statutory law I agree with the defence argument that it will be

unlawful for this Court to punish the appellant twice for the same offence.

Apparently, and as I have H already mentioned above, the learned state attorney

concedes that it would be contrary to the law for this Court to impose another

sentence on the accused for the same offence.

I am, under the provisions of s.21 of the Penal Code, unable to impose any other

sentence on the appellant. I

Order accordingly.

1983 TLR p173

A