director of public prosecutions vs justine kakuru kasusura john laizer 2004 tzhc 47 11 october 2004

I IN THIS U K ;!! C O U RT Ol'’ T A N Z A N IA AT DAK ICS .SALAAM. C R IM IN A L A P P E A L (NO.107 O F 2004 (Original Criminal Case No.15 of 2002 R M ’s Conr( of D’Salaam at Kisutu) D IR E C T O R O F P U B L IC P R O S E C U T IO N S VERSUS, JU S T IN E K A K U R U K A SU SU R A ^ J O H N LA 1 Z ER JU D G M E N T MANENTO, J K : This is an appeal by (he Republic appealing against llie decision ofihe Principal Resident Magistrate (Mr. Mtotc4a) at Kisutu Resident Magistrates Court, whereby the respondent, together with others, were charged with, among others, an offence of armed robbery. The accused persons were released on bail. The respondent was not released on bail for reasons I shall explain later on. The respondent together with other accused persons were charged before the subordinate court with three counts, namely conspiracy to commit an offence c/s 384 of the Penal Code, Armed robbery c/s 285 and 286 of the Penal Code and thirdly, in the alternative to the 2n(l count, for all the accused persons, stealing c/s 265 of the Penal Code. When the other accused persons were released on bail, the respondent vyns not. The reason lor min.i'.miil ol bail was lor respondent own salcly or protection. However, on I 8'".August 2004 the respondent applied to the subordinate count for grant of bail. The prosecution objected the grant on the ground that by operation of Act No.4/2004 which amended (he Penal Code by adding section 287A (but mistakenly named 278A) which added a section defining the offence of armed robbery, then the respondent was not entitled to the grant o f bail by law. The subordinate court ruled that the said Act No.4/2004 could not operate retrospectively and the fact that other accused persons were already out on bail, then the respondent’s application was granted. He was released on bail. The Republic was aggrieved by llial ruling, hence this appeal. In their memorandum o f appeal, llv Krpuhlii n-WI thive grounds namely that 1. The Principal Resident Magistrate erred in law in granting bail contrary to clear provision o f the law. 2. The Principal Resident Magistrate misjudged the operation and effect of Act No. 4 of 2004. 3. The Principal Resident magistrate misdirected himself when lie granted bail basing on extraneous considerations. In his submissions before this court, fvir. Muloko/.i, learned stale attorney submitted (hat Act No. 12/! 988 which amended section 148 « (5) of the Criminal Procedure Act, 1985 barred the courts from granting bail to accused persons charged of treason, murder and armed robbery. Therefore, he submilled, the subordinate court erred in not refusing to grant the respondent bail, instead, it released him on bail. In his second ground of appeal, the learned state attorney submitted that the subordinate court erred in contravening Act No.4/2004 by misunderstanding it. He understood it to mean that il ■barred the grant o f bail whereas the provision of the law specifically created the offence called armed robbery. That section, he submitted removed the misunderstanding by some courts that, there was no any offence-known as armed robbery in our legislations. He went on to submit that even before the enactment of Act No.4/2004 which amended the Penal Code, Cap. 16 by adding section.287A. The hew section defined the term armed robbery. He further rightly submitted that even before Act N o.4/2004, the Court of Appeal had recognized the existence of the offence termed armed robbery. Me cited the decision in the case-of Michael Joseph VR. (1995) T L R 278. * lagging his submissions mor’e in Act No.4/2004, (lie learned state attorney submitted that the application for bail by the respondent was on 18/8/2004 , four months after the coming into operation of Act No.4/2004. The Act came,into operation on 14/4/2004. The learned state attorney concluded his submissions - that taking into consideration the amendment of the Criminal Procedure Act I98S 9 ’ ' specifically section 14.8 which deals witlt the grant and non grant of bail to accused persons, and the clear wording o f the amendment of the Penal Code by Act No.4/2004, then this court should allow the appeal, canceling the release on bail of the respondent. Mr. Magalu, learned .advocate for the respondent did not stomach those submissions. He strongly and forcefully submitted that the appeal by the Republic is aimed at two things. To delay the proceedings and secondly to torcher the respondent. The learned counsel rightly submitted that the respondent is charged with six others who were all granted bail when they requested for it. The lespondent was refused bail at that time not because the law did not allow for the grant of bail, but it was because of his safety at that l ime. The Republic appealed again,si llial grant ol bail in Criminal Appeal No. 129/2003. The appeal was dismissed on the ground lhal there was no olTence in (he Penal Code known as armed robbeiy. I'hat appeal was heard and de(ermined by Luanda, J. The Republic, being further aggrieved, filed a nolice of appeal to the Court ol Appeal. That notice was later on withdrawn. After a lapse of time, when the respondent’s li fe was not threatened, then he applied for the grant of bail to the respondent. The Republic thereafter raised the application of Act N o.4/2004, without amending the charge. It is true that to date, the respondent stands * charged o f armed robbery c/s 285 and 286 of the Penal Code, which hon. Luanda, J. ruled that They never created the offence termed armed robbery. This Act No.4/2004 which added section 287A of the Penal Code', is not applicable in this case. The Act has no retrospective effect. That is because the offence was al-leged to have been committed on 2/8/2001 over two years before the coming into operation o f A ct No.4/2004. Arguing outside the memorandum of appeal, the learned advocate submitted that as per Article I 3 of the Constitution ol the United Republic o f Tanzania, there should be equal treatment in accused persons tire out on bail, the respondent is denied the grant of ( bail, though charged in the same case and under the same law with Ihc six other accused persons. Having concluded that there is 110 law in the Penal Code known as armed robbery, then there is no mandatory provision to preclude the court from exercising its discretion in granting bail to the respondent. He cited several cases, to show that the grant or non grant * of bail is a right o f the accused person and it is only refused when (lie courts are excising their discretions. Among the cited cases are those ofTito Lyim o V. Republic 91979) L R T 55; D PP v. Daudi Pete (1993) T L R 22 and Saidi Shabel and 3 others V. Republic (1976) L R T 4 where it was said that in exercising its discretion, the court should strike a balance between (he interest of an individual and the .society in which an accused lives. There are no threats on the part o f the accused nor is there any interference in the prosecution case by rhe respondent. On the strength of that decided case, the respondent was and is to be granted bail. The learned counsel ended his submissions. But is that all a bout this case? ♦ It is true that the respondent's personal security is not threatened, nor is he a threat to tin* .societies interests, by either interfering with the. prosecution investigation or witnesses, ncsidcs that all, the c|iiestion remains whether bail is allowed if a person is chaiged of aimed robbery, Hon. Luanda .1. in an appeal by the Republic. Challenging the grant of bail by the other six accused persons charged together with the respondent, decided in Criminal appeal 21/2002 that there was no offence in the Penal Code known as ^ aimed lobbeiy, so it followed that the restrictions imposed by the Ciiminal I locedtne. Act, 1985 in relation to armed robbery is of no legal effect. He then went on to grant bail to the other accused persons who are charged with the respondent. That is where Mr. Magafu, learned counsel submitted of equality treatment in criminal justice. The lelevanl Acts cited in support o f the non grant o f bail or the grant o f it were Acts No. 12/1988, Act No.6/1994 which amended section 148(5) (b) o f the Criminal Procedure Act, and the Minimum Sentence Act, 1972. Act N‘o. 12/98 amending the section 1480X5)61) of the Criminal Procedure Act, 1985 which prohibited both the police and the court before whom a person is brought or appears to admit that person lo bn11 il (hat person is charged o f murdej-, treason, arniccl robbery or defilement. Act No.6/94 was and is mainly in regard to the sentence to be imposed on a person charged o f armed robbery, dangerous or offensive weapon or instrument or by more than one person. Luanda J. whose judgment was relied upon by (he subordinate court in granting the respondent bail, and which was also relied upon by the learned defence counsel, conceded that armed robbery is a specie o f robbery with violence, yet il never created an offence under which bail could not be granted mandatorily. Before I proceed with the case laws which had been the centre of the arguments by (he learned state attorney and the defence counsel, I would like (o go back in the year 1991. Under Act No.27/1991 the Criminal Procedure Act.1985 was'first amended in section I48(5)(a) where bail for offences o f persons charged with murder, treason, armed robbery contrary (o sections 285 and 286 of the Penal Code was barred. Mere section 285 and 286 o f the Penal Code were specifically mentioned. These sections are hereby reproduced for ease o f reference: S .285. A ny person who slenls anything, and, at-or immediately bclore or immediately nfU-r the time ofstealiiig it, h .s t .s; me a c (..:i]_violc.,ce to any person or property m order to obtain or retain the thing stolen or (o prevent or overcome resistance to its being stolen or retained, is guilty o f (he felony termed “ robbery” (underline supplied). To my understanding o f the phrase ‘uses’ or threatens lo use actual violence are to be read together with the words in Act NO.27/1991 “ aimed” in which some weapons o f any kind are used in (he commission o f the offence. That understanding o f mine has been the understanding ofthe Court o f Appeal in Us various decisions. When dealing with the question o f sentence for an accused charged o f armed robbery c/s 285 and 286 ofthe Penal Code, thr Court o f Appeal in the case o f Raymond IVancis V. Republic (1994) Tf.k 100, where the issue was whether the provisions o f Act No. 10/1989 which provided for 30 years imprisonment as minimum sentence for an accused persons charged under section 285 and 286 o f the Penal Code was proper. The Courl of Appeal had (his to say: “ With resP cct- tllis court has held in » number o f eases that after the enactment o f Act No. 10 o f 1989 the offence o f armed robbery is distinct though cognate to robbery will, violence. should he clc-ni ly spelled out in the charge.” . B y lhOSe W° ^ » r ' he C “ " ‘ “ '’Appeal. Ihc offence ofarm ed robber H im # not specifically name,I i„ Ihc Pcna.I ( 'ode, came into existence s„.<l i found its roots in section 285 „|;,h c Penal Code, where and when actual violence or threat is used. However, the Court o f Appeal staled that for lire offence o f armed robbery to subsist, it must be d early slated in the particulars o f the offence. I f i, ,s so c |carly particularised, to give the accused person the chance to know both the relevant law and the particulars o f the charge, then an accused person could be properly charge and convicted o f the offence termed armed robbery. Likewise in another criminal'appeal Michael Joseph v. Republic (1995) 1 L R 276 the Court of Appeal ruled that under A cl No. 10/89 read together with section 286 o f the Penal Code, once it is proved that a dangerous or offensive weapon or instrument was used in Ihe commission of the robbery, then such tict would be termed armed robbery. The Court went on to hold that under the circumstances of.hat case, a knife was a dangerous or offensive weapon or instrument. The accused was then properly sentenced to thirty years imprisonment for an offence o f armed robbery c/s 285 mid 2.86 o f the Penal Code Basing on those Court o f Appeal judgments, the question is whether the paiticulais ol the ollence in this case spells out.clearly the use of dangeious weapons 01 instruments for the offence to be termed armed robbery. The answer lo Ilia! is.yes. Second count o f the charge which.(he icspondcnt is charged together with others is termed Armed robbery c/s 28.S and 286 o f the Penal Code. J he particulars ol the oflcnce shows in the stealing immediately before such stealing did threaten by pointing a pistol. to one Said Musa I-Iamisi in order to obtain the stolen money” . -There is no doubt therefore that the offence alleged to have been committed is nolhinp but aimed jobbery. I*or that reason then, I cannot hesitate to say that the Ruling by this court, Luanda J, was made in ignorance o f the Court of Appeals decisions which are not only authoritative, but binding upon this court, On the issue o f Act No.4/2004, I agree with the decision of the subordinate court that it has no retrospective effect, so that, if I had ruled i • otherwise, then it could not have any effect in this appeal as it did not have* in the luling o f the trial court. In his further submissions, M r. Magafu, 4 learned advocate strongly argued that the refusal to grant bail to the respondent would amount lo (inequality before (lie law because other accused persons are already out on bail on the same offences, f would just t bncllv sav .ha. one w, o,», can no. be blessed by another wrong. Th......as i M c c i s k ) n ( , th^ which I co n sid e r .o be the correct interpretation o f .he law. Lastly, I w o u ld say .h a l .lie enactm ent o f A ct N o .4 /2 0 0 , U, add s 287A in the Penal Code, was just to bring into .he bii^ht lit whose eyes ct.... section 285 ofthe Penal Code. B y doing so, .hen these mischtcvcs ,.o«l<l not appear in future. Finally, and for the reasons already stated, no gran, o f bail on charges of armed robbery c/s 285 and 286 of Ihc Penal. ,.cspolK|eW is (Herefore canceled and he should be in remand custod, tdl .he finalization o fth e proceedings and judi’meni .... - o n , , - so orderccl. A .R . tvl;uH.rnf() ■TA.TI K IO N G O Z J. 11/10/2004 A .R. Manento, JK. Coram: Tango Slate Attorney , i;or tllC appellant: Present in person Respondent: For die Respondent: Absent Cc: Claudins Respondent: Mr. Maj'afu (old mo lliat he is coming, bill he has not yet Itnnrd up, il is 9.35a.m Order; Judgment shall be read in the presence o f the accused, though in « the absence of his advocate. Court: Mr. Magalu, learned counsel came while I was reading the judgment. A .R . M anentcf' J A J I K IO N G O Z I. I 1/10/2004