Court name
Court of Appeal of Tanzania

Christopher Mwakabura vs Republic () [1992] TZCA 52 (17 December 1992);

Law report citations
1992 TLR 380 (TZCA)
Media neutral citation
[1992] TZCA 52

Mapigano, Ag. J.A., Mnzavas and Mfalila, JJ.A.: On 14/9/89 in the district court of Ilala at Kivukoni the appellant Christopher Mwakabura was sentenced to suffer imprisonment for 32 years and 6 strokes, consequent to his conviction for robbery with violence contrary to sections 285 and 286 of the Penal Code. The trial magistrate found I that the appellant and another person

MAPIGANO AG.JA, MNZAVAS JJA, MFALILA JJA
had actually stolen a motor vehicle belonging to the Ministry of Home Affairs on A 19/5/88 and that the vehicle was taken at pistolpoint from the driver. And the magistrate proceeded to punish him in terms of the Minimum Sentences Act, 1972, as amended by the Written Laws (Miscellaneous Amendments) Act, 1989, to which we will refer hereafter as "Act No. 10 of 1989". B
The appellant went to the High Court on appeal challenging the validity of the conviction and propriety of the sentence. The appeal went before Bahati, J. who upheld the conviction upon being satisfied that there was enough evidence to support it. With regard to the sentence, the judge had this to say: C
The appellant was sentenced to 32 years' imprisonment. I am unable to see where the learned magistrate got the extra 2 years in view of the fact that the district court has got power to impose a sentence of only 30 years for such offence with or without corporal D punishment. I therefore find the sentence of 32 years to be illegal as it contravenes section 5 (bb) of the Minimum Sentences Act as amended by Act No. 10 of 1989 in that the minimum term of imprisonment for armed robbery is 30 years. The maximum is of course E life imprisonment, but then section 170 of the Criminal Procedure Act does not give the district court power to pass a sentence above 30 years. I will reduce the sentence to 30 years imprisonment.
It is evident that Bahati, J. decided the matter on the basis that Act No. 10 of 1989 is F applicable to the offences specified in that Act, regardless of whether such offences were committed before or after the Act came into operation, and as we shall have occasion to see later herein, the learned judge has firmly held to that view.
The appellant has brought a second appeal to us urging five grounds. However there is G only one ground among them that bears consideration and that is the fifth. The rest pertain to concurrent factual findings of the courts below and are thus misconceived as under the law we are, on such second appeal, obliged to confined ourselves to matters of law. H
The burden of the fifth ground is a technical one. Rephrased, it is this: The District Court had no power to award a jail sentence in excess of 8 years. That court went into error when it invoked the jurisdiction vested in it by Act No. 10 of 1989, since the offence was committed before that Act came into force. The authorities for that contention are I section 49 of the Interpretation of Laws and

General Clauses Act, 1972, Article 13 (6) (c) of the Constitution of the United A Republic, and the decision of this Court in Mashaka Shabani v R., Criminal Appeal No. 85 of 1990 (unreported).
It is true the offence was committed before Act No. 10 of 1989 came into operation. It is also true that at the time of the commission of the offence the minimum sentence for the offence was 7 years' imprisonment, vide section 5 (b) of the Minimum Sentences Act, B 1972, and that the power of a subordinate court in relation thereto was limited to an award of a term of 8 years, vide section 170 (1) (a) of the Criminal Procedure Act, 1985.
Act No. 10 of 1989 came into operation on 26/5/89. among other things that Act C amended section 5 of the Minimum Sentences Act, 1972, as well as the First Schedule to that Act. It added a new paragraph to section 5, i.e. (bb), by which the minimum punishment for armed robbery was raised to the long stretch of 30 years; and deleted paragraph 4 of the First Schedule which related to robbery. D
We turn to the authorities that the appellant has cited to us. We have noticed that Mashaka Shabani v R. was similar to the present case in all material particulars. The first appeal in that case also went before Bahati, J. who in his judgment considered the applicability of Act No. 10 of 1989 to armed robbery committed before the E commencement of that Act, in the context of Article 13 (6) (c) of the Constitution. That Constitutional provision reads:
For the purposes of ensuring equality before the law, the state shall make provisions: F
No person shall be punished for any act which before its commission was not defined as such offence, and no penalty imposed for any criminal offence shall be Heavier than the penalty in force at the time the offence was committed. G
The view taken by Bahati, J. was that the sentence of imprisonment for 30 years handed out by the trial court in that case was not offensive to the above provision, inasmuch as long before Act No. 10 of 1989 was enacted a competent court could pass a maximum H sentence of life imprisonment for the offence. The judge went on to observe:
What has changed now after the enactment of Act No. 10 of 1989 is not the sentence which could be passed by a competent court for armed robbery, but that the subordinate court has I

MAPIGANO Ag.JA, MAKAME JJA, KISANGA JJA
been given power to pass sentence of 30 years for armed robbery. A
And he regarded that change as of no consequence.
When the matter came to this Court on a second appeal we differed with Bahati, J. and held: (a) that Act No. 10 of 1989 has substantially changed the punishment for armed B robbery, since the minimum has been raised drastically, and "the situation is not that a court may at its discretion impose a sentence of 30 years' imprisonment but that a court must impose a minimum of 30 years" and (b) that there was nothing in the provisions of Act No. 10 of 1989 which indicates that the appellant was not liable to the penalty C prescribed at the time he committed the offence. We accepted the submission that the terms of section 49 of the Interpretation of Laws and General Clauses Act, 1972, debarred a court from applying Act No. 10 of 1989 to offences which were committed D before that Act came into force. The end-result was that we substituted the sentence with one of 8 years.
Section 49 of the Interpretation of Laws and General Clauses Act provides: E
Where an act constitutes an offence, and the penalty for such offence is amended between the time of the commission of such offence and the conviction therefore, the offender shall, unless the contrary intention appears, be liable to the penalty prescribed at the time of the commission of such offence. F
It is plain that this section is couched in qualified terms: the prohibition of retroaction of penalities is conditional to a contrary intention being absent. In relation to this provision we have paid due attention to section 4 of the Minimum Sentences Act, which reads: G
Where any person is, after the date on which this Act comes into operation, convicted by a court of a scheduled offence, whether such offence was committed before or after such H date, the court shall sentence such person to a term of imprisonment which shall not be less than ...
Then the section goes on to lay down the minimum penalties of imprisonment for the scheduled offences. I

MAPIGANO Ag.JA, MAKAME JJA, KISANGA JJA
This section strikes us as probably the most singular feature of the Act. It is hardly A deniable, however, that the section stipulates the sort of "contrary intention" envisaged by section 49 of the Interpretation of Laws and General Clauses Act, and has, therefore, the effect of making the minimum penalty prescribed by any future enactment amending the B Minimum Sentences Act apply retrospectively to any of the offences specified in the three Schedules thereto, regard being had to the rule restated in section 17 of the Interpretation of Laws and General Clauses Act that an amending Act should be construed as one with the amended Act.
Just the same, we are of the considered and firm view that section 4 above does not C make Act No. 10 of 1989 operate retrospectively in relation to robbery. The reason is to be found in Act No. 10 of 1989 itself. As we have already pointed out, this Act amended the First Schedule by deleting the offence of robbery. We think that this deletion provides a distinct basis for attributing to the legilature an intention to display D the provisions of section 4 to the offence, given the meaning attaching to the term "scheduled offence" by section 3 of the Minimum Sentence Act, namely "an offence specified in any of the schedules to the act". The interesting if odd aspect of all this is that robbery is now set apart from the other offences within the ambit of the Act, in the E sense that it is the only unscheduled offence and wherefore the only one that escapes the grim grasp of section 4.
We held, therefore, that the appellant was, under section 49 of the Interpretation of Laws F and General Clauses Act, not liable to the penalty prescribed by Act No. 10 of 1989. With that it becomes unnecessary for us to advert to Article 13 (6) (c) of the Constitution, and this precludes the more serious exercise of looking into the constitutionality of section 4 of the Minimum Sentences Act and our jurisdiction to do so. G
Accordingly, we dismiss the appeal against the conviction and we substitute a sentence of seven years' imprisonment which is to run from the date of the trial judgment.
H Appeal dismissed.

A
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