19810309 TZHC Tabora

ccy IN THE HIGH CCtJRT CF TPNZANL4. " AT TAF3ORA APPELLATE JtJtISDICTICN p (j'abora Registry) CRIrINAL APEANO. 178 OF f79 CRIGINAL CRDXNAL CASE NC. 161 OF 1978 OF T DISTRICT COLIRT OF URP?130DISTRICT•AT • urwmo Befoe E. J. Nyamasagara, Esq.,fl/Nagistrate. HA'I1 tJSELA 1 I APPELLANT 'Versus THE REPUBLIC •. • . . • 1* & bØ•a4o•4 . . . RESPCNDEN CHARGE. Store breaking and stealing c/s 296(1) and 25 of'. the ?enal Code. .: .. \ . 2zldcté Neglect of offjèjal duty c/s 121 of "p. Penal Code. JUP,GiENT/ASCNS EOR ODR '• ..cHxPETp j. . • . . S On 4th 1'arc 1 1981,.I quhed the appellant's' conviction, set' aside the sentence and order of compensa- tion., and ordered tha the fine, which the appellant jaid, be refunded to hm fo-thwith. I ieserved my reasons for doingo, and the same are 4ontained in this judgments S P-ppbllant was chred oh two counts, which were preferred in the a.lternative* He. was iharged, in eouitt one 1 with store-b±'eaking and stealing and in count twd, with neglect of official duty, c/ssa 26 (i) afd 265. f and 121 of the ena1 Code1 respetively lie was convicted' : . • I in respóct of the second cou,t, and the learned trial. magistrate, Nr. Nyamasaara 1 correctly made no finding on the alternativ'e couPt ozoo . When 1. Nyamasagara, then atotioned at Tab.ora, completed the trial, he prep$'ed hio jgment and forwarded it to rambo Djstr*4t Coutt so that it could be

delivered there and sSope pasØed accordingly. One Ir. G. N. Nussa, ben Di$'trict: i'a,istrate, Urambo, delivered the jud,grnent ad øentoflced the appella- nt'tó pay a fine of Shs.1,000 or 4welvo months - p -2- imprisonment in default of payment. The appellant coul not raise the fine, and so he was committed to prison. However, he was released the next day after his relative had paid the fine, As it turned out, Ir.G. . hussa had been a '.itness at the trial* indeed, he was the principal witness and could loosely be described as the complainant in that ho was the person rosponsjblo for all the property in Urartbo District Court- One of the grounds of appeal is that it was improor for hr. IUs8a to deliver judgment and pass sentence in the àaso, for. in doihg 80 he beome a judge inhis own cause. With respect, I entirely agree with tht complainant. One of the cazdinal principles of natural justice is that a ran must not be a judge in his own cause. Another cardinal principe is that justice must not only be dofle but must be seen to. &ve been done. Justice must be rooted in confidence, and so nothing hould be done which creates oven a suspici.n tIt' there has been bias or breach of the principles àf iatürol justice. In delivering th Juginen and passihg sentence, hr. Mussa was engagedi 'ftt in p*r41.yadfiinstrative duties, • but vas actually engagd in and exocutin

judicial.... functicns. A he was in the psiti,on of a person with an intcret inthe n?ater, he wasiting as a judge in to his owfll'C3USOo ne ought not, horefore,/have done So. I now turn to the merits of the appeal. The only evid4ncgins tu appeilnt was that having reportod on duty, the appellant hio go back to his home to collect a torch which hçbad. forgotten, and. while he 'a. 'z..was. away on tbat mission, some culprit broke into the court's exhibit store and i6to1e articles worth over Shs.2,000/=. • I q faF,trecm peruaded thrtLevldenco establishes beyond reasonable doubt t1tt the appoilqnt k'rijV_ nelectod qperfom his lif iczcs] duty. L It right have been different had thg eVjdcnc' shown that he .4elihorately and without good cau6e stnVd away from h.s place of work. I am, for th' I-eason, not prepared to sustain the conviction. . . • 0 Before I leave the.. .4eXihould make one observaticn rtga'din$ the s4i ence, if only for the benefit of the sntening ristrte. This court has, -3- '3 times out of number, pointed out that where a court decides to give an accused person the option of a fine, such option must be real and not illusory. In other words, fines must bear some reasonable relation to the accused's ability to pay the fine. If a fine is dispropo- tionate to the accused's financial ability, the chances are that he would be committed to prison, thus rendering the option

illusory. As Saidi, C. J. (as he then was) pointed out in the case of Samwel lvlwendawano V. R., (1967) H.C.D. n. 451: "The idea of imposing a fine is to keep the accused person out of prison, where he might worsen his character by making contacts with hardened criminals who are always in jail. There is therefore no good ground for a court to impose a fine which an accused person cannot pay and in consequence has to go to jail in default. of payment". It is for this reason that a sentencing. court which is inclined to impose a sentence of fine as an option to imprisonment must inquire into the means of the accused person to pay the fine. In the instant case, the sentencing magistrate made no inquiry into the means of the accused to py the fi. Going by the record, the appellant must have been a man of a- small means for he was no more than a watchman in the Judiciary. Clearly, therefore, he could•not have been expected to raise such an exorbitant sum. It isf therefore, F not surprisifig that he failed to Pay the fine And had to go to prison where he was, happily, rescued by his relativeS. It was for the foregoing reasons that I quashed the appellant's conviction, set aside th.e,sentence and order of compensation, and ordered that the line paid be refunded to him forthwith. Tabora, B. CHI ETA, 9th March, 1981 JUDGE. or