19810131 TZHC Dar es Salaam

IN THE HIGH COURT OF T.ANZANifl. ...----- AT .DAR..... ES SALil.t\N .......... - REVISIOl~\L JURISDICTION ___,..,..,.._ - n ( • e::»::::e: .. CRIMINAL REVISION NO •. 10 OF 1980 C/F APPF.ALS NO. 121,. 141, .142/80 . ORIGmt~L CRIMINAL CASE NO. 42 OF 1980 OF THE DISTRICT COURT OF KISAR.Al':/E AT KISAR.'1.WE BEFORE E. K. KWil#I.BYLI.., :Esq., DISTRICT MAGISTR.'I.TE • IBlliiliIM Tu\NIEL SHAYO •••••••••••••••••••••••••••••••••••••••-APPLICANT .: . ; . . Versus THE REPUBLIC •••••••••••••••••~•••••••••••••••••••••••••••·Rl!EPONDENT ........ C'".tffi:RGE: kt Count~ Robbery with violence cont~ry to section 286 of t~e · Criminal Procedure Code Cap. 16 Vol_ •.1 of the Le.ws •.. ,?pd, Coaji.t: Unlawful possession of offefisive weapon contrary to section 8(1) of the National Security ii.ct•. 1970•. MAPIGANO, 1 J. - The three appellants, MOR.'lMEDI SELEN!\NI, . Hi\.MISI MOHAMED!. and- FRANK EMM/UllUEL, were. convicted of two counts by the district ma(,-1.strate at Kisa.rawe •. The first: count had charged. ' robbery with violence contrary to sections 285 and 286 of the Peria.1 Code and the second count unlawful possession of offensive weapon. contrary to section 8(1) of the National -security Act., 1970~ J3oth offences were said to have been committed by the appella.ita jointly and, together on May 19, 1980, at Luka.nga. village in the'Kisara.we district •. Each one of them wn,s sentenced to

imprisonment for twelve years in respect of the first count and for one year in respect of the saeond count, to run concurrently. The magistrate also made orders for. compensation and for forfeiture of the vehicle which had been used in the commission of the robbery. In the lower court the appellants were , ( ·- . . -"(-::' ~,·;. ,,.,,;aii&liiilf~ -..ii :±:·· ri .. 2 • . . generally called the first, second and third accused, respectively,: and I think it is convenient to adopt that terminology. ./ Henceforth herein, therefore, I will call them SO'• No doubt that a frightful robbery was perpetrated at the shop of one Sultani Mohamedi Kiru.ke at that place on that day. It was a dayli 0ht r.aid a.nd one of the bandits wielded a lethal weapon, a gun. He fired off the weapon in facilitation of the· stealing of prdperty'from the shop. The party made off with a radio valued at Shs. 1,870/= and cash Shs. 9,500/=. The bandits had descended on th!3 shop in a car·, a peugeot. 404.saloon, bearing registration number TDS 985, in the afternoon. The car was being driven by the third accused and there were three other persons in it. It was said that one of the three was a soldier in civvies. The car was what they call a "taxi bubu" i.e. an unlicenced ta.xi. Its owner was Shituka. who had bought it fron1 another pers~n a. few months back. We now lmow that Shituka. is the alias of

Ibrahim Daniel Sha.yo, a taxi-driver who resides at·Kinondoni in Dar es Salaam and who was at Moshi when this incident occurred. The car was driven ' off from the scene at a speed. But as fate would have it, it broke~ down on the way to Dar· es Salc:.am.. It was later in the day found Kilitna.hewa. Whe.t'. happened at • abandoned atfr.ho scene was narrated by PW4 Amiri, the son of Sultani l1ohamedi KiruJ.ca, the proprietor of the shop which was plundered. Amiri told the court that he was in the shop when the car pulled up at about 2 p.m. There was no passenger inside and the driver, the third accused, deba.:i'ked and then proceeded to open the bonnet and to check the fuelo· After that the third accused got into the car and drove off, and a short while later he .Amiri saw two persons, whom he identified to be the first and second accused, coming from the direction from which the car had emerged.· Another person was following them behind and all the three persons were strangers to him. · The three passed by the shop and followed the car. · In another moment the car ca.me back and stopped in front of the shop. It was still-, being driven by the third accused and the three persons were inside.·· The other person who was said to be at large alighted and, •• /3 lI - 3 . came to buy some cigarettes. Then the first accused also came out, gun drawn. He opened fire and he .Amiri

slipped - out of the shop ·.-in.fright ... and went to take ·refuge in another house. He Amiri came ~ when.,'hhe b?,ndits had left by the car, only to find that a :r,adio. an4, a:,:}um o~r, Shs, 9,500/= had also disappeared. Five days late:r;.he pointed out all the three. accused at the Kisarawe police station. That was confirmed by Inspector Ngondo, PW5, who had conducted the identification, yara.de. Another wi tne ss t Juma 1'1ohamedi Kiruke·, the uncle of Amir~, told , the court that he was around when the car came to the shop. He confirmed that it was being driven by the third accused, He said he also s~w the third accused coihing ciut and then opening the bonnet to che'ck the fuel, ; "·' He said at that stage' he left the place and went to his'house and did; not witness the raid. He also came to the parade where he pointed out thQ third accused • . Two other witnesses deposed as to what took place· a.f.ter the raid.·' The first ' . \ras PWl Constable Asajile .of the Kisarawe Police Station. . ' :· .~ He said that on information he received about the robbery he start~d inye ... stiga.tions immediately. Two other constables assisted him.. He came across the car at Kiiimahewa. He inspected the car and found, among other things, the driving licence of the third accused, He seized the car and caused it to be taken to the police station, He thenwent to a pliff called Kipa.rang 1

anda and blocked the road to Dar es· Salaam. In time a bus ca.me from Kimaziohana and stopped at the road~block. · It was after nightfall, at about 8,10 p.m. He searched. the p~sengers in that bus and the exercise proved quite worthwhile. He found the gun which had been used in t.he robbery, the radio which had been stolen from the shop and the 1eni,t1on key of the car which he had ea.lier seized, He said he found the gun in the hands of the first accused, the radio in the hands of the second accused and the car--key on the person of the third accused. He said that apart from those things he also discovel,'dd sixteen bb.llets in the pocket of the first accused's trousers. He said the gun was hidden in a folded mat, •• /4 --·- 4 - The other.r1itness, PW2 0mari Hemedi, a militiaman, who happened to.be a passenger in the bus, confirmed all that Constable Asajile deposed relating to the,search. He added that he had boarded the bus at K:ima- zichana and. that he had seen the three accused coming and climbing into the bus when it stopped aj; J3igwa. He said he saw, then, the first accused. holding the folded mat and the second accused.carrying the radio in his l1and. The accused persons made extrajudicial statements to a· Justice of the Peace on39tb May, 1980. These were tendered in court and marked exhibits P.J, P.19:8.I;ld P.11 •. The prosecution a.a well as the learned trial

magistrate called them confessions, which was wrong. That of the first ~ccu.sect, P.9, was evidentially completely valu~less. In his statement P.10, the second accused sought to exculpate himself and to inculpate the first.accused and the other:man who was at large. That statement purported to show that he had just been asked by the two men to accompany them to the scene and that throughout he was an innocent spectator. It appears that the learned magistrate discarded that statement from his consideration of the case against the first accused. That was .right as at law a statement which does not amount to a confession is, at the highest, only evidence against the maker. That of the third accused was also exculpatory and·was in material particulars parallel to his evidence that he adduced in court in his defence, which I will come to presently. The first and second accused opted to offen·no evidence when they were put to their defence. As for the third accused, he gave·' a sworn statement. It was a fairly long statement. According to that statement, he was at the material time a taxi driver and on that day he was driving the car TDS 985 which, as pointed out, belonged to Ibrahim Daniel Shayo alias Shituka. He Shituka had left it with him when he Shituka left for Moshi. At about 10 a.m. the second accused, whom he knew only by sight, approached him at the Kinondoni Bus Stand. The

second accused wanted to hire the car for a trip to Kisarawe. He agreed to take him to that place. The second accused t.hen told him to proceed.. first to Mwananyamala to take his friends. He drove with the second accused to that place and stopped at ... /5 . ... 5 a certain house. He saw the first accused and another man coning out of the house. They got into the car. The first accused was carrying a folded mat and it ~id not occur to him that it was necessary to investigate what was inside that mat. Both the first accused and the other nan were complete strangers to him. The other man gave him a SUD of Shs. 200/= for buying petrol and after filing in the petrol he drove off towards Kisaraive, He did not lmow the purpose of the journey and it did not occur to hir1 that it was necessary for him.to be curious about it. When they reached Lukan1:;c1 he was told to stop. The first and second accused together uith the other man disembarked and asked him to turn round and pa1:k •the cc1r in front of the shop~ He did so and then saw his passengers coning tovfards the shop. He saw the second accused and the other nan going to the shop where they proceeded to buy cigarettes. As for the first accused, he came into the car still carrying his folded mat .. In e.nother raora~nt, 1 the second accused and the other man ca..rae to the car and he heard the first accused telling theu: tuwavae -

which I take to oea.n 11 lets charge into their 1.1idst" • Thence- forward, he s~id, he was a man under conmand. He was threatened with shooting if he dared drive away. l1hc first accused sp;r;,cad the rJ.at 01xm to 1 expose the gun. He then &,'Ot out of the car and fired in the air and all the people who happened to be around ran away in fright. He the third accused was dumbstruck and conpletely tra.~sfixed. The second accused and the other man stormed into the shop. They came out with the radio and a bag of r.ioney. li.11 clirabed into the car and the f.irst accused told hio to · drive off very fast:' He did as bidden. But after a distance the road provec~ treacherous and one of the wheels got loose. The car lurched to a halt and the first and second accused got out of the car Laving the other man. 'rhey forcibly took him with them into the forest. Continuing, the third accused told the court that they hid ther.:i- • selves in the forest for quite a while. When it ·was dark they cane out and went to stand by the road. In tine a bus Cfil,10 and stopped. He and the first an'. second accused got inb the bus which th~ ·.1 resur.1ed its journey towards Dar es Salarun. The bus stopped when it reached the •.J6 road-block at Kiparang'anda and what happened there is the story which was recounted by Constable Asajile. 1 In short, the.third accusedwanted the court to accept the

assertions that he was not a party, to the robbery, that he had been just been hired by the three men to take 'tnem to Lukanga, that he clid not lmow that they were '?n a robbery expeditio:n,that soon after reaching Lulr...anga he was not a free man and that at not- time did he coun- tenance their nefarious acts. r111ie learned rnagistrate did not find it difficult to reach the conclusion ' that the first and second accused had fully perticipated in the commission of the offences. He found that t}J.erei was abundant and compelling evidence whic.h established.their guilt. As regards the third accused, the magistrate paused to consider the point whether or not he was an accomplice. He re~ vie:wed the evidena.e as to what happened after the raid and he was satisfied that the third accused was r,.and in glove with the bandits. These were his actu.a.1 words: "Now, a co-cabs bus arrived and it.stopped. The third accused saw the first accused,and the second accused entered the bus and he followed them in• This act of the third accused shows.clearly of the familiarity with his co-accu~ed,. Had.it not been the case, he could have shown hostility to them, or reac"17:ed otherwise:. . He nevertheless kept ~te into the.bus after the danger to him had already passed as he was not placed under the f:irst accused's control but he was a free man. Let it be as it may,. be that in the buf:l he

feared lest he be shoti, why then did he not fear entering the same bus he had seen his greatest enemies entering. It is this circumstance which brings him closely to, the fullest knowledge, and not only that he was hired, but also that he took part as an active member in the commission of the offence •. And I have no reason to doubt the prosecution evidence adducedbefore 'li'"'r~,~.,., >•--·-·~ - 7 ne. r.rhe third accused is the greatest liar, and his defence does not at all create any reasonable doubt in o.y r,1ind,. 11 '11he learned nagistrate then went on to convict all the accused persons on the two counts they stood ch~rgcd ir:i:1t4~ The ground of app~al wtich is cor.mon to ltll the o,ccused is a complaint about the identification parc::.cle w~ch v1~s conducted by the police i:lt Kisar2.we Police Station. The accused contend that it was not properly.arranged in that the two identifying wi tnesrrns l).acl the opportunity of seeini'.s then before they were taken to the parade line. Let mo dispose of this particular aatter right now. Th0rc .is, in ny opinion, no substance in that com:llaint. 1 rhe police officer who conducted the parade co.Bo to court n.rid gave e:vidence and fron the record no question at all was put to hin by the accused-. In .,_, . any ·event, as Hr. Nynng--arika counsel for the l1epublic hG.s obsi:=:rved on l,11lS appeal, tho result.of tho.t parade

hr,rdly influer:i.ced the decision of the learned nagistrate. The first and second accused have put forth the argu.~~nt that the L?arned r.mgistrate was wrong in accord.ing d:redence to iihe cvid:eaQe gf P1.+1 to the eviclence of PWJ. Constable Aso.jile, P\:/2 Ot1ari IIenedi, PW4 Aniri Sult3.ni Kiruke and P\'16 Juna Hoho.nedi Kiruko. As for the third accused, he contended.that the the learned nagistrato.erred in disraissing his defence anc1 in finding that he tho third accused was a conscious and active r.1e,1ber of the raiding party. He said he is a non who is endowed with soue prudence. If he had been a pc,rty to tho rob1Jery~ so he said-, it was unlikely that he would not have taken sone 11recautions before he set out to the scene, like attaching a false nunber onto the ca.r~ Mr-. Nyangarika supported the conviction on the first co~t in respect I of all the accused.. He said there ·was sufficient evidence to sustain the conviction and he referred to the testiL10ny of Constable Asaj ile, P\-J2 Onnri Hoaedi Goboka the mili tiamo.n o,nt HI4 Aniri Sultani Kin.l.ko. Ho pointed 01:,t that in the case of the first and second accused there was also the evide:-::ce of the third accused which incrininated 7Joth of then. With regard to the third accused, the learned counsel was at one with the trial DG.gistrate tho.t /o • •I u J r - ! 41 - 8 the deneanour of the third accused;

subseguent to the robbery, dispelled_ any doubt~about his coD.plicity in the cxine. By keeping the other two accused cor.1pany and by his failure to expose thera to the other passengers in the bus, when the fear for his life had subsided, he revealedr s6 the counsel argued, a conplete identity of purpose with thera. With regard to the conviction on the second count, the learned cou.x1sel felt bound to concede straightaway that it was bac. as a matter of law; the reason being that no consent of the Director of Public Prosecutions had been sought, let alone obtained, for the trial of the accused persons., Dealing first with the conviction on the secondi; I ar.1 compelled to agree with the obs0rvation of Mr. Nyangarika that the conviction was illegal. A trial on a charge of possession of offensive weapons or o.aterials without lawful authority or excuse,, cannot proceed without the consent of the Director of Public, Prosecutions. Indeed, it is the sar.ie with any charge under the National Security Act. Thd is what the law says. It is se0tion 16 of the Act;· wh~ch reads that: 11 Where any person is brought before a court on a_charge under this Act no further proceedings in respec.t thereof shall be taken against h:u:1 without the consent in writing of the Director of Public Prosecutions, save such as uay be necessary by renand.to secure the due appearance off the: person

charged". As the trial on the charge was evidently conducted withoutthe consent of the Director of Public Prosecutions, I an bound to declare that the proceedings were, to that extent, null an.cl void. I will therefore set aside the convi- ction and the sentence. I now come to the conviction on the first count. As remarked in para. 2 of this judgment, there was no dispute a.tall, and :i,t·was firoly established that the arned robbery actually took place. Tha only guestion before the court was whether the accused persons were the ,Feople who comr1itted it. I i: -~- ~--~ ._,,. . - 9 - In my consideredlopinion, the first and second accused cannot succeed' to deny that the;y-were fully involved in that crime. I share the view that the evidence led against them was stinging and irresistible. There was first ~he testmony of PW4 Amiri Sultani Kiruke, the teen-aeer who was attending•to the custor:iers at the shop. He said he identified the accused persol1S and bearing in raind that the incident took place in the broad light of day, there was no good basis for faulting his identification. It is important to note that his testimony and that of the third accused, relating to what took place at the sc.ene, coa:;robora.ted each other in'almost all material particulars~ Next therewas the evidence of FWl Constable Asajile and PW2 Omari Hemedi Go'llroka. That evidence shows that on the same

day in the evening the two ~ccused boarded a bus bound for Dar es Salaam.and that one of the two had a cun and' .the other the· radio which ho.cl be-em sto1~:h fron .the .soene •. '.It1. . t1ay pe observecl that both accused did not cross-examine the Gol1Stable at all. In my view, the learned ii.1agist_rate was entitled, if not constrained, to accept and act upon the evidence of the two witnesses. Then there was ,, the testimony of the third accused which, as we have·seen, tied them to · the robbery .. and which, as just pointed out, accorded with the circumstances of the robbery as related PW4 1\rari Sultani Kiruke.. I understood the· two accused to argue that it was wrong for the magistrate to take the eviclence of the third accused into consideration. They have cited the decision of this Court in JYJAsale v. Re,PJ.!,blio (1970) HCD, No.

247. I an afraid that case does not help them much. As judicial precedents show, where an accused gives evidence on oath in a joint trt'tl implicating another accused, it may be used against that other accused, whether or not he implicates himself, because that evidence is on the sane footing as 'that of any other witness, though as a matter of prudence it must be approached warily. As Biron J. nicely put it in Qm_arj JE:P~f.i).an:il;_e__,and. Fo1:!,_r O_tji~~r.l3_, Dar es Salaar:i High Court Crir.1inal Appeal No. 224/75 i •• /10 - 10 - "vJhen at a trial an accused opts to give evidence on oath and in such evidence he incriminates a fellow accused, such evidence is ac1tlissible against the other, though it cannot be treated otherwise th&.'1 as evidence by an accom1Jlic0 and thei·efore requiring corroboration in practice though not in law, vide Section 142 of the Evidence Act." Aliter if the evidence of the co-accused is not given on &Q.:J;h, unless the maker of that unsworn statenent also implicates himself in which case the / st~tenent can be treated as . a confession and may be taken into considera.tion against his fellow accused. I now turn to the third .accusecl' s appeal. The accused, as already pointed out, gave a lone sworn statenent and explained.1-).ow he car:ie to be present at the scene and how he cat1e to abandon the car. He contended. in that account that

thrpughout he acted in all innocence. and that fron the point the other accused started torud the shop he was under duress. The learned state attorney, like, the·learned trial·magistra.t~ was apparently of the opinion that there'· was nothing unusual, much less incrir.1inating, .,.. . at firs.t blush, about the third a.ccused having driven thE! other accused to Lukanga. I entirely agree. The car was a~, albeit,libubu", and perhaps such a trip might be the yearning of many a taxi-driver. He said he never bothered to ask then about,.the purpose of their journey, or to inquire about the folded nat. I ,think that that was in character. I think many people will agree that it is typical of ts.xi-drivers in this country to behave like the the accused said he behaved. And in normal cirCUDstances, there is hardly anything curious about a passenger who carries a folded Dat. The learned magistrc1te, likewise the learned state attorney, fou..'1d that the demeanour of the third accused after the robbery was gravely suspicious and that it pointed only in the direction of his guilt. It is argued that ha.dthe third accused been the innocent person he dipicted himself, he would not, at least, haye failed to alert the other-passengers in the bus, sinao at ~./11 11. - that tin1e he could hardly have apprehended any danger to his life from the other accused~ . That, at first glo..nce, ·is a strong

point. J3ut the record is silent on whether there was sufficient time for him to do so a.~d for all we know the arrest may have been effected by PWJ.. Constable Asajile almost :. inr1ediately after the acquscd persons had, boarded the bus,~· The third accused has made the point that had he been a partner in the robbery he would not have failed to take some precautions. Specifically, he saic1,.he would have arranged to have a false number affixed on the car. The point is taken, but the pospible answe:rr· to that is that there are in·· -- many incidents; of crime a r.1arked element of risk-takirig and want of fore- thought and, indeed, it is often due_to their naivety or a false sense of security that cr:µ:iinals are detected. 'l1he learned ma~istrate was cer~ain that the third accused was an active !~1ember in the commission of the offence and he dismissea his defence as that of a greatest liar. Onmy part, I am not so sure. I think, in my assessnent, that. there ~ possnly some truth in the account of the third accused. In that regard it is, I think, important to note that the second accused's extrajudicial statement did not implicate hm. I strongly. £eel that the evidence as a whole left room for a reasonaJle "doubt and that the third accused should have been given the beriefi t thereof and cleared of the charge. I wilt, therefo.re~ allow his appeal. Then I pas~ to the

sentbncewhich was imposed b;y the district Iilagistrate on each accused. The point has been raised that it was far too heavy. For myself, I think the question of severity of the sentence is of secondary importance. The :primary point is whether the magistrate had jurisdiction to pass it and the answer is simply no. The basis for that answer is. the ,. provision of section 7 of the Criminal P-.cocedure Code as a.L'lended by section 5 of the Minimun S8 ntences(Consequential and Incidental Provisions) , Act, 1972. Sub-section (l)(a) of that section provides that: ,. "A subordinate· court 11ay, in cases, in which suoh sentencres are authorised by law, pass the following sentences - imprisonment for a term not exceeding; •• /12 - 12 - five years: . Provided that where a court convicts a person for a. scheduled offence, it may, if such sentence is authorised by law, pass a sentence of imprisonment for such offence for a tern not exceeding eieht years 11 • Certainly, the offence of robbery is a scheduled one and a person who commits the :ffiuony is liable to imprisonment for iiwenty years; or, if it is~ aggravated robbery, for life. But as the above provision dea:r:ly shows. a subordinate courtts sentencing power is limited to the extent indicated. Of course that liraitation is not 'meant to avaii a robber who would otherwise deserve a ~onger term of any favour. A subordinate. court

has power, under su-section (1) of section 5A of the Criminal Procedure Code, to commit such a robber to the High Court, which may, tinder sub-:-Section (2) of the same section,.pass a longer sentence. If therefore, the magistrage in thi:;; case thought that. the accused persons deserved.sentences which exceeded eieht years. he could and. should have committed then to the High Court for sentence. For what I have stated,, the sentences will be set aside:. Finally I pass to the order for forfeiture.of the car. This has ( be~n the subject of some heated debate between l'Ir. Nyangarika .and Mr. Mbuya who represented the owner of the car ... Shituka. The learned magistratErpurported to apply section 621\. of the Road Traffic,Act, 1973 as amended' by Act 15/so •. -.. The marginal note of that section reads thus t "Use of vehicle in the commission of an offenceu. The section runs as follows: 11 (1) No person shall knowingly or wilfully, cause to be used; or permit the use of, his vehicle in the commission of any offence:against any law for the time being 1n force in the United Republic. - . -----~--- -,..____ - --- .,;, - -.,i ,' - - ,.,.,_,, ~'C. ~ ,' II •. 13 !"" • (2) Where any person (a) uses a vehicle, or (b) knowinely or wilfully causes to be used, or peroits the use of, his vehicle~ in or in con_11ection with• tfie commission of an of~ence, shall be guilty of an offence,arid

the .,. court shall upon conviction order. that , ,;.. (i) he be disg_ualified:from driving for a period of ten years; ond (ii) the vehicle be for:ffeited to the United Republic. Provided that this section shall not apply to traffic offences." It should be clear, upon careful reading of this provision, that a conv.iction under the section is a prerequisite for an order of forfeiture. ' ' Secondly, I refuse to accept the proposition that Parliat."lent envisaged the forfeiture of a vehicle which has been So used by a person other than the owner even where the owner has not knowingly or wilfully caused it to be so used, or where he has not perr.1itted the use of it for that pu:rpose - though . . one Tiay be tempted to put such construction on sub-section . (2)(a) . (ii). It would be obviously absurd and unjust. I may illustrate.: Ali retires for the night, ieaving his ca:::- outside his house. In the ddad. of.' the night, when he is fast asleep, J33kari, a strane;er to h:un~ comes and , steals the car and proceeds to use it in the commission of another offence. But J3a.kar:i. is nabbed and eventually convicted', ip.ter alia of the offence of using a vehicle in the comr::iission of an offence under the section. Take another case: Mapunda gi~es Nondo his car and instructs him to go ancl. fetch his Bible from the church, But instead of proceeding to the chltt'ch straight- away and

unbeknown to Mapunda, Nondo Dakes a detour and uses the vehicle in the commission of an offence. He is apprehended, -'Brought to court: and convicted of the offence. Surely in each insfo.nce it would be mariifestly ~-/14 L - 14 .;. • unfair to arraign the o-wner of the vehicle, Ali and Mapunda, and to order the forfeiture of the vehicle. 1 Reverting to the present case, there was no doub.t-that the owncr of the car was Shi-i:;uka. The prosecution, by all indications, knew that ,right frorn the ver-J start. Shi tuka was away when the incident took placm and there was hardly ·any evidence which implicated hira in the crime. What is more, he was not·charged with the offence "tlllder section 2 A of the Road.Tra,ffic Act. He was,, as it were,. convicted. and penalised unheard. That; :'to put it mildly, was a violation of fu.nda.i.-nental principles of jusUce, law and procedure. If only for the benefit of the trial magistrate, I will restate sor.ie ~ ' . . of the rules which should guide him when he exercises his powers in th2,t regard.. First, there is no general permission for a Court to order property forfeited to the Republic. Before•the o:mler_ is valid it must be e_:x,:pressly authorised by the law governing the offence in question. Secondly, it must always be borne in mind that the makirig of such_ order is a judicial act and, therefore, the person who would be affected ' . by

the order must be accorded reasonabl'e opportunity to oppos~ tl+e making of it. Where the article soucht to be forfeited belongs to sone person other than the accusedi that person r:mst be called before the c.ourt and be given the opportunity to show cause why an order of forfeiture shoulQ not be made. All this proceeds from the fundanental principle. that ,no person should be condemned to any p<:mal ty unheard. 'J;he ordl willh lie set • aside. It all comes down to this:(a) the conviction on the second count and the sentence thereof are set aside. That is in respe-ct of all the three accused persons. (b) The appeal of the third accused Frank Illi-ama.nuel against the conviction and the sentence on the first count is allowed. The convi- ction is quashed and the sentence set aside.. He is, therefore, to be set; free forthwith unless he is detained, lawfully, on another ground. (c_) The appeals of the other two e,ccused against_ the conviction on first count are dismissed. I will exercise my power and sentenc~r each to i:xprisonment •• /15 _,_ )J.J. · x:, r: for ten years. In doing so I have been impelled by the consideration that the offence was serious and that the incidence of robbery has reached a frightful high. (d) The order for compensation is re:c.tified. ~,{~.:~~~ ' > ·r' • The first and second accused will each repay the complainants a sum of . . .. · . Shs. 4,065/=. (e) The SULl of Shs. 500/= which was Seized:from the third accused is to be released to him. (f) Ibrahim Daniel Shayo alias Shituka will have hfa car TDS 985 restored to h;ir.1 as it ."18,8 porveroely :f'brfei tcd,:: to the Republic. f Pronounce.a. in Court. All concerned.present. y,,~Qrt~· _,.-4 31st~January, 1981 (~. P. }lapigano)

JUDGE ~~ . . , '. . :-·-➔• . ·~- ' ~::~:: . .... i,., '. ,T,,,:" .•, . t ;;.~ ,J·~ -:,'~- j -~- •. •t'4,,.; '.'' ·/n. _;~>,i.