director of public prosecutions vs justine kakuru kasusura john laizer 2004 tzhc 25 11 october 2004

IN T H E H I G H C O U R T O F T A N Z A N IA A T D A R E S SA LA A M C R I M I N A L A P P E A L NO.H17 O F 2004 ( O r i g i n a l C r i m i n a l C a s e N o . 15 o f 20 02 R M ’s C o u r t of D ’S a l a a m at K i s u t u ) .D IR EC TO 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 KASUSURA @ JO H N LA1ZER JUDGM ENT MANENTO, J K : This is an appeal by the Republic ap pealing against the decision o f the Principal Re siden t M ag is tra te (Mr. Mtotela) at Kisutu Resident M agis tra tes Court, wh ereby the respondent, together with others, were charged with, a m o n g others, an of fence o f armed robbery. T h e accused persons were released on bail. T h e re sp ondent was not released on bail for reasons I shall explain later on. T h e respondent together with other accused persons were charged before the subordinate court with three counts, namely conspiracy to co mmit an offence c/s 384 o f the Penal Code, A r m ed robbery c/s 285 and 286 o f the Penal C o d e and thirdly, in the alternative to the 2nd count, for all the accused persons, stealing c/s 265 o f the Penal Code. When the other accus ed per sons were released on bail, the respondent was not. The reason for non grant o f bail was for respondents own safety or protection. How ever, on 1 8lh A u g u s t 2004 the respondent applied to the subordinate count for grant o f bail. T h e prosecution objected the grant on the ground that by operation o f Act N o . 4/2004 which amen ded the Penal C o d e by adding section 287A (but mista ke nly nam ed 27 8A) which added a section def ining the offence o f arm ed robbery, then the respondent w as not entitled to the grant o f bail by law. T h e subordinate court ruled that the said A ct N o . 4/2004 could not operate retrospectively and the fact that other accused per sons were already out on bail, then the r e s p o n d e n t ’s application was granted. He was released on bail. The Republic was aggrieved by that ruling, hen ce this appeal. In their m e m o r a n d u m o f appeal, the Rep ublic filed three grou nds namely that:- 1. The Principal Res iden t Magistrate erred in law in granting bail contrary to clear provision o f the law. 2. The Principal R e s ident Magistrate m isj ud ge d the operation and effect o f Act No. 4 o f 2004. 3. The Principal Resident magistrate misdirected h i m s e l f w h en he granted bail basing on ex traneous considerations. In his submissions before this court, Mr. Muloko zi, learned state attorney submitted that A c t No. 12/1988 w h ic h a m e n d e d section 148 (5) o f the Criminal P rocedure Act, 1985 barred the courts from granting bail to accused persons charged o f treason, m urd e r and armed robbery. Therefore , he submitted, the subordin ate court erred in not refusing to grant the r esp onde nt bail, instead, it released him on bail, in his second ground o f appeal, the learned slate attorney submitted that the subordinate court erred in contrav en ing Act N o . 4/2004 by m i s u nderstanding it. H e understood it to mean that it barred the grant o f bail wher eas the provision o f the law specifically created the offence called armed robbery. That section, he submitted r em ove d the m isu n d e r sta n d in g by so me courts that, there was no any offence kno w n as ar m ed robbery in our legislations. l i e went on to submit that even before the enactment o f Act N o .4/2004 which am ended the Penal Code, Cap. 16 by adding section 287A. The new section defined the term armed robbery. H e further rightly submitted that even before Act N o . 4/2004, the Court o f Appeal had recognized the existence o f the offence termed armed robbery. Me cited the decision in the case o f Michael Joseph VR. ( .1995) T L R 278. P eg g in g his submissions m ore in A c t N o . 4/2004, the learned state attorney su bm itted that the. application for bail by the respondent was on 18/8/2004, four months after the c o m i n g into operation o f Act N o . 4/2004. The Act came into operation on 14/4/2004. T h e learned state attorney co nclud ed his submissions —that takin g into consideration the a m e n d m e n t o f the Criminal Procedure Act, 1985, specifically section 14.8 which deals with the gr ant and non grant o f bail to accused persons, and the clear w o r d in g o f the a m e n d m e n t o f the Penal C o d e by Act N o . 4/2004, then this court should allow the appeal, c anceling the release on bail o f the respondent. Mr. M a g a fu , learned advocate for the r es p o n d e n t did not stomach those submissions. H e strongly and forcefully submitted that the appeal by the Rep ub lic is aimed at two things. To delay the pro ce ed ings and secondly to torcher the respondent. T h e learned counsel rightly submitted that the r e spondent is charged with six others w ho w er e all granted bail when they requested for it. The respondent w as refused bail at that time not because the law did not allow' for the grant o f bail, but it w as be cause o f his safety at that time. Th e Republic appealed against that gr ant o f bail in Criminal Appeal No. 129/2003. The appeal was dism issed on the ground that there was no offence in the Penal Code kno w n as armed robbery. That appeal w as heard and determined by L u a n d a , J. Th e Republic, bein g further aggrieved, filed a notice o f appeal to the Court o f Appeal. That notice was later on withdrawn. After a lapse o f time, when the r e s p o n d e n t ’s life wa s not threatened, th en he applied for the grant o f bail to the respondent. The Republic thereafter raised the application o f Act N o . 4/2004, without a m e n d in g the charge. It is true that to date, the res po nde nt stands charged o f armed robbery c/s 285 and 286 o f the Penal Code, which hon. Luanda, J. ruled that They nev er created the offence termed armed robbery. This Act No.4/2004 which ad d ed section 287A of'the Penal Code, is not applicable in this case. T h e A c t has no retrospective effect. That is because the of fe nce was alleged to have been co m m itted on 2/8/2001 over two years before the com ing into operation o f A ct N o . 4/2004. A r g u in g outside the m e m o r a n d u m o f appeal , the learned advocate submitted that as per Article 13 of the Constitution ol the United Republic o f Tanzania, there should be equal treatment in criminal law to all the people before the court. Thai whereas six other accused per so ns are out on bail, the r espondent is denied the grant o f bail, though cha rg ed in the same case and u n d e r the same law with the six other accused persons. H avin g co nc lu de d that there is no law in the Penal Co de kn o w n as armed robbery, then there is no m a n d a to r y provision to preclude the court from ex ercisin g its discretion in granting bail to the respondent. He cited several cases, to s h o w that the grant or non grant o f bail is a right o f the accused person and it is only refused when the courts are excising their discretions. A m o n g the cited cases are those o f Tito Lyimo V. Rep ublic 919 79) L R T 55; DPP v. Daudi Pete (1993) T L R 22 and Saidi Shabel and 3 others V. Rep ub lic (1976) L R T 4 w her e it was said that in exercising its discretion, the court should strike a balan ce betw ee n the interest o f 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 the respondent. On the strength o f 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? ft is true that the r e s p o n d e n t’s persona] security is not threatened, nor is he a threat to the societies interests, by either interfering with the prosecution investigation or witnesses. Besides that all, the question re m ains whethe r bail is allowed i f a person is charged o f armed robbery. Hon. Luanda J. in an appeal by the Republic. Chal lenging the grant o f bail by the other six accused persons charged tog ethe r w ith the respondent, decided in Criminal appeal 21/2002 that there was no offence in the Penal C o d e k n o w n as armed robbery, so it followed that the restrictions imposed by the Criminal Proce dure Act, 1985 in relation to armed ro bber y is o f no legal effect. He then w ent on to arant bail to the other accused O c -/ persons who are charged with the respondent. That is whe re Mr. Ma ga fu, learned counsel submitted o f equality treat ment in criminal justice. The relevant Acts cited in support o f the non gran t o f bail or the grant o f it were Acts No. 12/1988, Act N o .6/1 994 which am ended section 148(5) (b) o f the Criminal Procedure Act, and the M in im um Sentence Act, 1972. A ct No. 12/98 am en ding the section 148( 1)(5)(a) o f the Criminal Procedure Act, 1985 which prohibited both the police and the court before w h o m a person is brought or appears to admit that person to bail if that person is charged ot murder, treason, armed robbery or defilement. Act N o . 6/94 was and is mainly in regard to the sentence to be im p o se d on a person charged o f arm ed robbery, dangerous or offensive weap on or instrument or by more than one person. Luanda J. w h o s e judgment w as relied upon by the subordinate court in granting the respondent bail, and which was also relied upon by the learned def en ce counsel, conce ded that ar m ed robbery is a specie o f ro bbery with violence, yet it never created an offence under which bail could not be granted mandatorily. Before 1 proceed with the case laws which had been the centre o f the argum en ts by the learned state attorney an d the defence counsel, J w o u ld like to go back in the ye ar 1991. U n d e r Act No.27/1991 the Criminal Procedure Act 1985 was first amended in section 148(5)(a) w here bail for offences o f per so ns charged with murder, treason, armed robbery contrary to sections 285 and 286 o f the Penal C o d e was barred. Here section 285 and 286 o f the Penal Code were specifically mentioned. 'These sections are hereby reproduced for ease o f reference: S.2 8 5 .A n y person who steals anything, and, at or immediately before or immediately after the time o f stealing it, uses o r t h r e a t e n s to use a c t u a l v io len ce to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty o f the felony termed " ro bbe ry 1' (underline supplied). To my und er st an ding o f the phrase ‘uses' or threatens to use actual violence are to be read together with the words in Act N O . 27/1991 “ a i m e d ” in which some w eap o n s o f any kind are used in the co m m iss io n o f the offence. That understanding o f m in e has been the un der st an ding o f the Court o f Appeal in its various decisions. W hen dealing with the question o f sentence for an accused charged o f armed robbery c/s 285 and 286 o f the Penal Code, the Court o f Appeal in the case o f R ay m o n d Francis V. Republic (1994) T L R 100, wher e the issue was wh ethe r the provisions o f Act No. 10/1989 which provided for 30 years im pris on men t as m i n i m u m sentence ior an accused persons charged under section 285 and 286 o f the Pen al Co de was proper. Th e Court o f Appeal had this to say: With respect, this court has held in a num ber o f cases that after the enac tm en t o f Act N o . l 0 o f 1989 the offence o f armed robbery is distinct though cognate to robbery with violence. It should be clearly spelled out in the c h ar ge.” By those words o f the Court o f Appeal, the offence o f armed robbery, though not specifically na m e d in the Penal Co de, c a m e into existence and it found its roots in section 285 o f the Penal Co de, w h e r e and w h en actual violence or threat is used. How ever, the Court o f Appeal stated that for the offence o f armed robbery to subsist, it must be clearly stated in the particulars o f the offence. I f it is so clearly particularized, to give the accused person the ch an ce to k n o w both the relevant law and the particulars o f the charge, then an accused person could be properly charge and convicted o f the offe nc e termed armed robbery. Likew ise in an other criminal appeal M ichael J oseph v. Republic (1995) T L R 276 the Court o f Appeal ruled that under Act No. 10/89 read together with section 286 o f the Penal Code, once it is proved that a dan ge ro us or offensive weapon or instrument w a s used in the co mmiss ion o f the robbery, then such act would be termed armed robbery. The Court went on to hold that under the circumstances oi that case, a knife was a dan ger ous or offensive w e a p o n or instrument. T h e accused w as then properly sentenced to thirty years im pri sonm en t for an offence o f armed robbery c/s 285 and 286 o f the Penal Code. Basing on those Court o f Appeal judgments, the question is whether the particulars o f the offence in this case spells out clearly the use of da ngerous w e a p o n s or instruments for the offence to be t erm e d armed robbery. T h e a n s w e r to that is yes. Second count o f the ch ar ge which the respondent is charged together with others is termed A rm ed robbery c/s 285 and 286 o f the Penal Code. The particulars o f the o ffence s h o w s in the '"stealing im m ed iat el y before such stealing did threaten by p o inting a pistol to one Said M usa Hamisi in order to obtain the stolen m o n e y ” . The re is no doubt therefore that the offence alleged to have been c o m m itte d is nothing but armed robbery. F o r that reas on then, I cannot hesitate to say that the Ruling by this court, Lu a n d a J, was made in ignorance o f the Court o f Appeals decisions wiiich are not only authoritative, but binding upon this court. On the issue o f Act N o . 4/2004,1 agree with the decision o f the subordinate court that it has no retrospective effect, so that, if I had ruled otherwise, then it could not have any effect in this appeal as it did not have in the ruling o f the trial court. In his further su bmissions, Mr. M agafu, learned advocate strongly ar gued that the refusal to grant bail to the res pon den t would a m o u n t to unequality before the law b ec au se other accused per sons are already out on bail on the same offences. 1 wo uld just briefly say that one w r o n g can not be blessed by an other w rong. T h a t was the decision o f the court w h ic h is n o t binding on m e and this is m y decision, which 1 consider to be the correct interpretation o f the law. Lastly, I w o u ld say th at the en actment o f A ct N o . 4 / 2 0 0 4 to add S.287A in the Penal Code, w a s j u s t to bring into the brig ht lights o f those w hos e eyes could not see it that the offence o f armed r obbery w a s covered in section 285 o f the Penal Code. B y do in g so, then these inischiev es would not appear in future. Finally, and for the r ea so ns already stated, no grant o f bail on charges o f armed robbery c/s 285 a n d 286 o f the Penal. T h e bail granted to the respondent is therefore can ce lled and he should be in r e m a n d custod y till the finalization o f the pr oce ed ings and ju d g m e n t at the su bo rdinate court. It is so ordered. A.R. JAJI KiONGOZI, 11/10/2004 Coram: A .R. M an ento, JK For the appellant: T a n g o State Attorney Respondent: P resent in person F o r the Respondent: Absent Cc: Ciaudias Respondent: Mr. M a g a f u told m e that he is coming, but h e has not yet turned up, it is 9.35a.m Order: J u d g m e n t shall be read in the presence o f the accused, th ough in the absence o f his advocate. Court: Mr. M a g a fu , learned counsel came while I w a s reading the judgment. A .R ^ a ^ t c f // // ** V\ {;.yj| !; JAJI KIONGOZI. ’• I // 11/10/2004 // ’tr:■ ■r / /. ________