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 H

-Whether it can be exercised in relation to sentences illegally imposed.

Criminal Practice and Procedure - Sentences - Enhancement of sentence - S.329 of

the I Criminal Procedure Code. Cap. 20 - Order of enhancement not to prejudice

accused.

1983 TLR p216

LUGAKINGIRA J

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 B

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. C

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 D

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. E

No case referred to.

[zJDz]Judgment

Lugakingira, J.: The accused pleaded guilty to a charge of stealing by servant and was

F 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 G 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 H 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

1983 TLR p217

Act No. 1/72", but that alone does not assure me of the status of the village. It seems to

A 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

B 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 D 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. E

Order accordingly.

1983 TLR p217

F