20041011 TZHC Dar es Salaam

I I / ,,':' ,:: '' , -.,,,-,._' ~ ' ... .. . . ·... ··~•(• . ( IN TM l.1~ fHGIJ COUHT Of!' TANZANIA : il"j ,. I ~ _: .' CRlMINAf, APPEAL N0.107 OF 2004 · (Original Cri111 i11:1l Cnsc No. IS of 2002 RM'·" Co11r( of i) 'Salaam at: Kisu tu) · Ul.Rl~CTOJl·OF PUBL'IC PROSECUTIONS VEHSlJS. JUSTJNi~ J<Al<URU K.ASlJS·lJHA (?r1,JOI-IN LAIZl~R .JUDGMENT MANENTO, JI(:·. . This is ..in appcH I hy ('lk 'Rcpubl ic nppc,1' i ng r1gn ins! I he dcci~:ion or Ilic Principal· Resid~nt }Vlugistnite (Mr. Mrorcfo) ;1t K.isutu Resident Magistrnlcs Court, whereby the res1ionclent; ...together with others, were charged \-Vith, a111011g others, an offence of c1rmed robbery. The a~cuscd persons were. released on bail. The respondent was nol released on bail for reasons I shall CJ:<plain later on. The respondent together with ?lher accused persons ·we.re charged before the ·subordinate cmirt with three counts, namely consjJin-1.cy to commit an offence els 3 84 of the Penal Code, Armed robbery els 285 and 286 of the Penal Code and thirdly, in the altertrnlive to th~ 2 nd count.' for all the accused persons; stcc1 Iing c/s 265 of the Penni Code. ,j :I ''I, H, '/, ' ' j ' ' \ ?. . I When the other accused pcrs6ns w.crc released on ba i I, the respu11dc11t protection. However, on I 8 .Augus_t 2004 llie respondent applied to lhc 111 •. I subordinate cot'1nt for gnmt of bail. The prosecution ob,icct:cd the grant on the ground tlrnt by operation of /\ct No.tl/20()11 which ;,·1111cndccl the Penni Code by adding section 287 A (but mistakenly named 278A) which aclclccl a section defining the offence of arined robbery, then the respondent was not entitled to the grant of bail by law. The subor(:linale cnui·t ruled that lhc st1icl Act No.4/2004 cou-lcl not operate retrospectively and the fact that otlicr r,. accused persons were already out on bail, then the respondent's application was granted. He "~c1s rclcriscd 'o~ai r:~rhc l\cpubl ic w<1s aggrieved by r lrnt ruling, hence this appeal. '! I ' ' , ' namely that:- 1. The Principal Resident Magistr~te erred in law in graiiting bail contrary to clear provision of the lav,,. 2. The Principal Resident Mc1gistrc11.e misjudged the op~ration and effect of Act No. 4 of 2004. . I rt ;f ·, 3. Ths~ Princi1xil R·esiclent nrn.gisl.rntc m'isdircctccl hi;nsc:lf when he granted hail ba~;ing on cxtrnncmr~; . . 'f considerations. In llissulmiis~;iu11s l>l'.1<1h.~ tltis colll"t, K~r. 'Mulnko ✓..i, lenrned s(:ifc attorney submitted ·tlrnt Act No.12/1988 whi~h arnenclcd section 148 I (5) of the Cr'imimil Procedure Act, 1985 barred th·e courts from . . I. ' granting bail to accused persons clrnrgcd of lrcc1son, murder and ' armed robbery. Therefore, he submit!c.d, the subordit)::ite court erred in not refusing to grant the respondent bai I, instead, it released him on bail. In his second ground of appeal, the learned state attorney submitted that tile subordinate court erred in contravening Act I \: ! No.4/2004 by mist.111clcrstanding it. He understood it to 111ean r.hnt ii j, i: . barred the grant of bai I whereas the provision or the law speci ficnlly created th~ offence cnllccl armed rol}bcry. That section, he subrniued removed lhc 111is1111clerslandi11g by some courts tlrn·l, there was no any offence-known as armed robbery in our lcgisl_ations. He went on to submit that even before the enactment or Act No.4/2004 which j / I .I l· amended the Penal Code, Cap.16 by :idding scclion.287 A. The hew i, section defined lhe term armed robbery. He further rightly submillcd that even before Act No.4/2004, the Court of Appeal had recognized the existence of the i:)ffence termed armed robbery. He cited tlH~ decision in the c,1sc.of Michael Joseph VR. ( ! 995) TLf{ 278. . ' ' I Pe_,igi111.~ Iii:_; sul>111issio11:, 1110_1'<.'. i11 Act No.4/2004, the lcnrncd slate allorney sublnillcd that the :i'pplicntion for bail by the rcspo11dcnr was on 18/8/2004, four 'months a.fler the corning into operation or Act t No.4/20()11. The Act cn111c. into opcrnlion 011 14/4/200 11. Tl1e Icarried ,· j 1, . ' slate attomey concluded his submissions -· that taking into fl·_.· fI ! consideration the ·amendment of the Criminal Procedure Act, 198.5. ii spcci fically scctio11 I 1I -~ which den ls wit.h the grnnt and non grnnl of' bail to accused persons, and the clear wording of the amet)dment or the Penal Code by Act No.4/2004, then·tl,is court should allm-v fhc ' ~: appeal, canceling the release on bai I of the respon~lent. Mr. Magaft.r, learned advocate for the respondent did not. stomach those submissions. He strongly nnd forcefully submil.ted tlrnr. the appeal by the R.cpublic is aimed at two things.' To delay the proceedings and secondly to torcher t.hc respondent. The ,. lenrncd counsel rightly submitted that the respondent is ch~rged with six others who were all granted bail when they requested for it'. The respondent was refused bail at that time not: because the law did not allow for the grnnt of bail, but it was becm,se of his safety al. that rirnc. I i \ ', .. The l{cpirhlic ;1ppcnled ngnins1 lilnl grant of hnil in Crirnin;rl Appeul No. I 2<)/200J. Tile uppenl 'w,1s dismiss6d,hi1 the grou11d 1'1;11 there wn~ no offence in the Penal Code known ns armed robbery. That appeal was heard anc.! uelen11i11ed liy Luanda, .J. The Rcpuhl ic . . being rurthcr nggricvcd, filed n nolicc or appeal to the Court or Appeal. That notice wa·s later on withclraw·n. " After a lapse of time, when the respondent's Ii fc was not threatened, then he applied for the grant of bail to the respondent. The Republic .thcrcnflcr r::1isccl the c1pplic<1tio11 of Act No.4/~004, without· amending the charge. It is true that t9 date, the respondent stands charged of armed robbery els 285 and 286 of lhc Penal Code, which hon. Luanda, J. ruled that They never created 1:he offence termed • ~. \ '(' ~ armed robbery. ·This Act No.4/2004 which added section 287 A of the Penal Code: is not applicable in this case. The (\ct has no r I retrospective effect. That is because the offence was al-lcged to lrnvc I . . , . ' . been committed on 2/8/200 I over two years bcfor·e the coming into operation of Act No.4/2004. .. Arguing outside the m·e111ornnd,u111 of'appeal, the learned ndvocate suhmitled tlrnt ns per Article I 1 of tlw Constitution of the United Republic of Tanzania, there should be equal treatment in ';: (, cl'iminnl l:1w lo nl/ llrc people bcl'orc the <.:<..>t,irt. That whereas 8ix of lier accused persons me oul 011 bail, Ilic respondent is denied the grnnl or . . . bail, though charged in the same case and u,,.der the same law wit.h !he Having c<.111cluclcd lhat there is no law in the Penal Code known as armed robbery, then there is no mandatory provision to preclude the couri from exercising its discretion in granting bail to the respondent. He cite_d several cases, to show that the grant or non grn111. I 'I of bail is a •right of the accused person and it is only refused when the ·, ! courts are excising their discretions. Among the cited cases are those of Tito Lyimo V. Republic 91979) LRT 55; T)PP v. Daudi Pete ( 1991) TLR 22 and Saidi Shabel and 3 others V. Republic ( 1976) LRT 4 :lI.. 1 where it was said that in exercising its clisc·retion, the court should l' f· ' strike a balance between !he intcrcsl nf,111 individual nnd the :;ncictv i'n which an accused lives. There arc no threats on the part of the. accused nor is t.here any interference in rhc proscc11ti0n c11st: h:•1 the respondent. On the strength of th8t decided cc1sc._ the respoJ1dP11f w;1s , . f ' ' . and is• to be granted bail. The learned counsel ended his submissions. · But is that all a bout th is case? .I . I '' i I : • i I l. l t·/ ', It is true that the ·re$Jjo11dcnl 's pe·rsonal security is not .. threatened, nor is hc. ~1 I lire.it lo the societies inl<..:rest0, by either I inlcrfori11g with !lie prosec11tio11 invc.•:tip,:1tion or wit11cssc1;. lk:,id~:.{; that all, the qucsticm rc1nai11:3 whet.her bnil is allowed if a pcr~on is charged or arincd 1'ohbcry. Hon. Lw111dn J. in an8ppcal by the Republic. Challenging the grant or bail by the other six accused f ;.1•. L . persons charged together witl1 the respond.ent, decided in Crimin,tl · appeal 2 I /2002 that there was no offence in the Penal Code known ns I l ·arined robbery, so it followed that th? restridions impo~ed by the \! I I i Criminal Procedure Act, 1985 in relc1tio11 lo armed robbery is of no legal effect. He then went on lo grant bail to the other accused ' . persons who are charged with the respondent. That is where Mr. Magafu, learned counsel submitted or equality treatment in criminal :.1 justice. \ II ,, Acts cited in support of the non grant of ba i I or lhc The· relevant grant of it were Acts No. l 2/I 988, Act No.6/ 1994 which amended section 148(5) (b) of the Criminal Procedure Act, and the Minimum Sentence Act, 1972. Act No.12/98 amending the section 148( I )(5)(,1) .of the Criminal Procedure Act, 198:5 which prohibited both the police' and the court before whom a person is l?ro,ught or appears t:o admit. '! , ' I ' that person lo bc1il if that person is clrnrged of murder. lrnaso11, nrrned robbery 01; clcfilcrnent. Act No.6/94 wns and i~ mainly' in regard to the sentence to be imposed on a person charged of armed robbe1·y, -l clai1gerous or offensive weapon or instrument or by more than one person. \ I Luc1nda .J. v, 1 l10se judgment was relied upon by the subordirrnlc 1 t . 1' ·1 court in granpng the respondent trnil, t1ncl which was also relied 11po11 • I by the lc,1r11cd defence cot111scl, conccclecl lhat armed robbery is ;1 I • I: ' 1 specie of robbery willi violc11ce, ycl it never created an offence under I; 1' ,! I ,, which bnil could not be granted niandatorily. ,,., I Before I proceed ·,vith the case laws which had been the centre of the arguments by tile learned state attorney and the defence counsel., I would like to gQ back in the year 1991. Under Act· No.27/1991 the Criminal Procedure Act .198.'i was'first amended in section I 48(5)(a) ,,vhere bail for,offenccs of pcrson_s . .~ 1 . chargcxl with. murder, treason, c1rr11cd robbery.contrary lo sec(ions 285 nnd 28(, of the Penal Code wns barred. Herc section 285 ..ind 286 of the Penni Code were speci ficnl ly mentioned. These sections are he_reby I i"eproduced for ease of reference: .. . , . l I S.285.Any person who slc~tls ,~nylhi11g, and, ,ll or immedi:,tcly I) l J i. 1 property _in order to obtnin or rctnin the thing stolen or to I . prcv~nt or overcome rcsisl:111cc, Io it.s being ~tolcn nr 'I rct,1i11ccl. is guilty of Ilic (cln11y tcrrncd "robbery'' I :i . ,I (under! inc .suppl iecl) . . -i . ;•' :: i t . ·. To my understanding or the phrase 'uses' or thrccllens lo w;c actual violence " I l are t'o be read together. with the words in /\ct N0.27/1991 "aimed" in which \· I some weapons of any kind nrc used in the cnrn111is.sio11 of the offence. Thal understanding of mine lrns been the unclerstancling of the Court of AppcGI in its various decisions. When clcalir~g with the quest.ion of sentence for nn accused charged of rtrmcd robbery c/s 285 c111cl 28(i of.the Pc11c1I Code, tlw Court of Appc,il in the c,1sc or l{c1ymoncl Ft:mcis V. Rcpubl ic ( 1994) TU<. I 00, where the issue was ,vhcthcr the provisions of A_ctJ,Jo. I 0/ 1989 which provided for 30 ycrtrs imprisonment ns minimum sentence ror c1n accused persons charged under section 285 and 28(, of.the Penal Code wns proper. The Court of Appcc1I lwd this to say: " With respect, this court has held in c1 11umhcr of c·::1.~cs th;i'f I. after the ei1actmc11t of Act No. IO of I 9R9 the offence of ;;1r111(.'d II. I ·' I '·' . . ' ' , I robbery is ·c1isti11ct though cog11ut.c t<..i robbery with violence. 11 should he clc:irly spelled out i11 !lie clrnrgc." By those words of the Courl of' /\ppe,.11, tile hfTcncc of a,:mccl robbery, ' '. i though not speci(ienlly· 11;1111ed i11 Ille l'e~i";1,I Code, c:.11111.! into exi~tencc ,;11<1 it found its roots in section 28~ urthc ' ' Penal Code, where and when actual . \ I violence or threat is used. However, the Court of Appeal stated that for !h.c '1 offence of armed robbci·y to subsist, it must he clearly stritcd in tile partictilars of the offence. _Ir it is so clearly parliculc1rizccl, to give the • I ,, accused person the clrnncc lo know both the rclcvrn,t lawancl the particul[1rs of the clrnrgc, then .111 ,1ccuscd person could he properly charge and convicted of the offence termed ,irmed robbery. Likewise in another criminal ·appeal. Micl1;1t.:'.I .Joseph_ v. Republic ( I 995) TLR 276 the Court of Appeal ruled that t111.der Act No. I 0/89 rend together with section 286 of the Penal Code, once it is proved that a ·dangerous or offensive wc::1po11 or instrument was used in the co111missi01·1 nf' the robbery, then such ~1ct wo.uld be termed armed robber)'. The Court went onto hold that under the circu111stc111ces of that case, a knife was c1 dangerous · • o r offensive weapon or instrument. The accused wn~ then properly . tT sent~nced to thirty years impriso11mc.11t for rn, offence of <1r111ccl rc1bbcry c/s . l 185 nnci 2R6 nf the P1·1rn I C'nd,". ,, 11 ' -/i Basing ~,n lh~)SC Court of Appeal jL1dg111cnts, Ilic question is wlic!licr i ' "..., r:· ' I . t l .,, the partiqilms of' the offence in this ec1sc spcl Is out .clearly the use or ' j ·iI dangerou~ weapons or. inslrumcnls for the offence to be termed armed· 'rcsponclenl i.s charged logctlicr with others is tcrn1cd /\rmcd robbery c/s '.J.8~) and 286 of the Pcn~il Code. The pnrlic1Jlnrs c, r Ilie ofk,11(c shows in Ilie "stealing immediately before. such stealing did thrcat¢n by pointing a 1~istol. to one Said Musa Hamisi in order to obtain the s~olen money".• There is no doubt therefore. that the offence alleged to 1.rnvc been commillcd is nothing but armed robbery. For tlrnt reason then, I cannot hcsilale lo say th[ll the RuHng by this court. Lw11Hfo .I. was nrnclc in ig11ontnc:(;;~1f the Courr or I\ l,, ·. Appenls decisions which c:1re not only authoritative, but binding upon this j, 1;~ court. On the issue of Act No.4/2004, I c.1grce with the clecisio_n of the subordin_ate court thnl it lws no retrospective effect, so that, if I Imel ruled olhcrwise, lhen it could not have any effect in this appeal as it did not lwvc in the ruling of the trial court. In his further submissions, Mr. Magnfu. t l' ,l learn~d advocate strongly c1rgued that the relusal to grant bai I to the lj rcspo11dc11l would :111101111! lo u11cqu:ility before the 1~1w because other accused persons arc already out on bail i111 the ~.1111c offences. r V/Otild j1,~:1 !' t 'f I ,, (1 LL. I ' l- ',. lhp dccisio11 or the cour( ,,vhic:his nol binding 011 me u11d this is my dccisio11, 0 which I consider- to be lhc correct intcrprc li1!ic>1i ~/' lhc law,. Lastly, I would say that the enactment or Act No.4/200tl to add s.287 A in the Pcnril Code, W,lS just to bring into the bright lights of th'osC : . . section 285 0f the Pcm1I Code.· By doing so, then lhc~c mi~chicv_cs would·. not appear in future. Finally, and for the r·casons already staled, 11() grant of bzril on clwrgcs or nnned robbery els 285 and 286 ofthePenril_. The bail granted to th~ . c' ·1i11ulization of the proceedings ~nd j11dg11~e11f :it th<.· .subordinate ~;;);;f-1.•· ii;<',· JAJI KIONGOZJ. 1J/10/2.004 J j, · Coram: A.R. Mancnto, JK - T£1.nq,n SIFtte At!orr1C'-',, . 'l{esrondcnl: Present 111 pcrc;1_)f 1 For lhc RcspondcrJt: Absc11t Clirnclias · ·.. , Rcsponcicnl: Mr. M;l/1,ilf'tt lold me; th',it lie is coming, hu! 1;,.e hl.l!i l~Ol . ; . . ' . . ·. : '.·~ \ .. _ .;_ . ; .. ,;,Jt _iu;:/1;·ci' . •-.... ·- ltp, it is <),]5t1.ll1 Order: --·r·•· J uclgmcnt sha 11 be read in the presence. of the. accus~cl, 'thougli. 111 ." •, i . . Court: Mr. Magafu, learned counsel came while I ,-vas i·et1di11g the, )uclgmcnt. · • I .. _,,_ -~~ .· , .~