Republic vs Ndayizeye s/o Jamari and Another (HC Criminal Revision No. 3 of 2000) [2000] TZHC 544 (22 November 2000)

MASANCifr; J • IN THE HIGH COURT OF TANZANIA AT TABORA APPELLANTE JURISDICTION · ( Tabora Registry) (Rb CRIMINAL REVISION NO. 3 .'-,OF 2000 .;.i, I_ IRIGINAL CRIMINAL CASE NO. 20 OF 2000 OF THE DISTRICT ·coURT OF-- KIBONDO DISTRICT AT·KIBONDO · REPUBLIC o •• .- ••• • •• , •••••••••••• o .APPELLANT VERSUS ) (1) NDAYIZEYE S/0 JAYiARI ••••• RESPONDENTS. (2) HUTUNGIMANA S/,- GILBERT ) RULING The two persons, Ndayizeye s/o Jamali, aged 14 yrs and Hatungimana s/• Gilbert, aged 18 yrs, were convi•ted of unlawful possession of Government trophy c/s 67 (1) and 2 (o) (III) of the Wildlife Conservation Act No. 12 of 1974 as amended by Act No. 10/89. They both pleaded guilty to the offen~e and were sentenced peremptorily. The person of ·tender years ( Ndayizeye) was sentenced to ten strokes of the cane. The one aged 18 years was sentenced to ten (10) years imprisonmento I had felt 10 yrs imprisonment meted out to Hatungimana was excessive. Mr. Mwampoma Senior State Attorney who represented the Republi1; in these revisional proceedings advises me that, that is the minimum sentence the subordinate court could impose. He also drew my attention to.the fact that-the buffalo meat that the second accused was found with was substantial. There were 25 kilograms of the carcass meat. (Buffalo), valued at Shs. 692,200/=• There was • • • • • • • o/2 • .

• 2 - al.so 15 kilograms of \•!arthog meat. I have checked the provisions of the law ( Act No, 12/74, and Act No. 10/e9}: The sentence of 10,years imprisonment was t}).e . . " minimum the subordinate Court .coul,9- impqse. I would state "obiter - r • I ....... that where the Subordinate Court.·felt_ that a higher sentence was•.," necessary, then in terms of S, 79· .. (1) (b) of the Wildlife Conservafion - -..;- -- Act No. 12/74,' it would forward the same to the High Court for sentence. The situation of the first accused presented a difficult: · I agree with Mr. Mwampoma that the Act (No. 12/74) does ri.ot provide for the sentence of s..tzokes. That, however, would not mean that the Court would be imp,otent in the sentencing process. For, .it is the law that where the draftsman forgets to provide for a sentence in a statute, then the sentencing court must fall back to the common law. The common 19-w has it that when there is no sentence provided for in a statute, then the Court ca1_1 sentence. such a·· per':'on to a fine or imprisonment, at its discretion, provided, of course, the s.ntence does not become' in ordinate• ( see Ro Ve Morris ( 1949 - 1,50) 34 Cr. App R, 210, t:'195§' 2 All E, R. 965 - the cose 1 is quoted with approval by Samatta J ( as he then was )in R • V • Emmanuel Timot,1: Revision Case No 0 8/80 ( Mbeya High Court Registry). Incidentally, the decision in Morri's case was aiso followed in RV Higgins 35 Cr. App N. 130 and in Verrier v. Dir;ctor of Public Prosecuti6hs t:J.966J 3 All So, the magistrate was O'?rrect in awarding twelve strokes of the cane, The trial Court ,,.,as boun to impose strokes as the first. accused was, in the eyes of the law, a juvenile • •••••• .... • •• • /3.

.. - 3 After sa.ying all that, in these proceedings before me, I revise nothing. AT TABORA 22nd November, 2000 Mr. Ndunguru SSA for Republic Convicts: Absent.. .,.,,,...,- .... (j: E. C. MASANCHE, .JUDGEo