19731109 TZHC Dodoma

I

IN THE HIGH COURT OF TANZANIA

AT DODOMA

APPELLATE JURISDICTION HIGH COURT CRIMfNAL APPEAL NO. 43 OF 1973 ORIGINAL CRIMINAL CASE NO. 122 OF 1973

THE REPUBLIC

VERSUS

MOHANLAL BABOOL WALJI Charge: Failing to comply with lawful requirement of the Principal Immigration Officer to leave Tanzania c/s 26 subsection1(J) and subsection 2 of the Immigration Act No. 8 of 1972.

J U D G M S N T S . MAPIGANO AG. J. The accused was charged before the distrit court at Dodoma with failing to comply with lawful requirement of the Principal Immigration Officer to leave Tanzania c/s 26(1)(J), .(2) of the Immigrati- on Act, 1972. He pleaded guilty to this charge and was sentenced to a fine shs, .1,OOO/= in default three months imprisonment. He now appeals against conviction and sentence. The facts tendered by the prosecution were that the accused being a British subject, was on 13/1/73, served with a Notice to Prohibited Immigrant (no.6656) to leave Tanzania within thirty days.. He failed to leave the country within the given time and he was there- f ore arrested and charged with this offence. The appeal against the conviction is on the technical ground namely that: "The learned Resident Magistrate erred in convicting the appellant because the Notice to Prohibited Immigrant (No. 6656) was not signed by the Principal Immigration Officer but by a local immigration officer. The said Notice was never tendered as an exhibit." The Notice was not available for my examina.içn. However assuming for a moment that the said Notice was issued and signed by a "local imnigration officer" and not by the Principal Immigration Officei it would appear that the Notice was invalid. As pointed out, the offeriee with whieh the accused stood charged, was under subsections '(1) (J)

and (2) of the Immigration Act. Subsection (1) (J) provides that "Any person who being a prohibited immigrant, fails to comply with a lawful requirement of the Principal Imm.gration Officer to leave Tanzania; shall be guilty of an offence." Subsection (2) provides the penaltyfor the offence 0 It appears that the accused was staying in Tanzania without any valid permit or pass and therefore by sections 6 (h) and 10 41), he was a prohibited immigrant to whom a Notice could be issued. However it would appear from the provision of sections 5 and 26 (1) (J) and regulation 1.6 of the immigration Regulations (G N 92 of 1972), that the powers to issue the Notice can only be exercised by the Principal immigration Officer and not by any other immigration-officer. These powers could perhaps be delegated to any immigration officer under section 4, but the only person who could direct the delegation is the .... ... 0/2 . too 00 00. Minister, under subsection (1) or by a "public officer" other.than the the Principal Immigration Officer, under subsection (2), and this has to be in writing. As I am able to construe the provisions of the Act, it seems that an ordinary immigration officer has no powers, ordinarily, to issue the Notice. In the instant case however, the accused pleaded guilty to the charge and prima facihe agreed that he had not complied with the lawful reqfirement of the

Principal Immigration Officer 0 Accused had the legal expertise available to him in his counsel, the very one who argued this appeal on his behalf, and heUever raised this objection during the trial when presumably he had perused the Notice which had been served on his client and was conversant with the provisions of the Act s . The discrepancies, if any, could not in my judienthakre occasioned a f allure of justice 0 The appeal against the conviction is tJerefore without any substance and it is dismissed 0 With regard to the sentence, it was submitted with some force s that it was based on a wrong principle in that the learned. Resident Magistrate gave the impression that he was impc.si1ag a heavy fine rather 'vicariously' i 0 e. with an intention to punish the accused's father.. The following.observation by the learned Resident Magistrate which tends to confirm that was drawn to my attention; "Upon his option the accused has decided to be a British national for reasons he knows better. Looking at the accused I do find that he is a young person. So I do form an opinion that his father or somebody else advised him to be a British subject. Therefore it is very immaterial to say that since he is staying with his father he should be leniently dealt with because by dealing with him heavily the sufferer is his father 0 In such circumstances I wish there were such a sentence that the

father would suffer for his son y because I see in this case is behind the accused claiming British Nationality." The Republic associGiates with the submission that this was contrary to established principles and I respectifully agree. Secondly, it was submitted that the sentence was excessive in any event 0 The accused had just left school and was depend- ing on his father. He had applied to the British High Commissioner at Dar es Salaam f or a voucher but for reasons beyond his control he had not been granted one 0 I am inclined to agree. For a man like, the accused the sentence was manifestly stiff 0 The sentence therefore calls f or interference and I. do hereby reduce it to one of shs. 500/=. If the whole fine has been paid, the accused will be entitled to the necessary refund 0 D.P.MAPIGANOI -

AG JUDGE Judgment pronounced Mangat: for Appellant Mwipopo for Respondent D.P. MAPIGANO AG, JUDGE 9/11/73