19951009 TZHC Dar es Salaam

'· ,,. IN THE HIGH COURT OF TANZANIA DAR ES SJil.,,\.AN DISTRICT REGISTRY A1_ DAR ES S1\LAAM ECONOMIC CRIMii~-AL APPEAL NO. 1 OF 1995 AZIZ SALI~U · SHiU'·1'11E. DANSON /DUMA I. (0riginal Kisutu Economic Crime Case No.24 of 1994)· . SALU~,-I ABUBAKAR • • • • • • APPELLMTS W.P..SlJS \· JUDGlViENT: l . ' KXA@O, J.,. The three appella:::.-cs 'Jlere tried on 2.. charge. containing two counts·of being in un:;_a-Jful possession of dangerous drugs and unlawful importation of dan.;r=rous d.ruGs 6ffences in both counts fall under the Dangero~2 Drugs Ordinance, Capo,5 and the 1 "- E~onomic and Crganised Crirr.e Control Act, 1984. At the · -" ·«~nelusion of the trial Kimero PRM, of the Resident Mag·istrate"s C curt, at· Kisutu, Dar es Salaam, convicted all the appellants ,, .. and she then sentenced each Qne of them to-terms of j_mprisonment and a fine of·Sh.s.10,000,000/=. The .appellants were aggrieved by their convictions and sentences and have ·, now brought this appeal to this court challenging them. They are represented, as ·_tr;.2y ·.. ·,;re in :the court below, by Mr. Maira and Miss Korosso, l~,..;.: ,10j ;.:, t::;:ce Attorney, repres.en~f the Republic. Counsel have i'iled ·,, ·.'i tten submissions. On perusal of the re~ord,< after the order for counsel to file written submissions was made, it appeared to me that no p'-eas of the appellants wt.:re taken by ·,.::;i1e trial court. A note was sent therefore to counsel about,this ar..d they ·a:re both agreed that _no pleas were takcin. Th,~y agree with each other too that failu~e to take the ple2s was an incurrable Vfegularity and the trial wr::..s a nullit.I~ .j r ".. . /2 1 - •• ~ . ✓ / I I.: --· / .I 2 ... What happGned,, accorr:".in:_s to the reco:... . d, is that, as it l I' I happened in the cas•~ of Ak~~lih..licil_imoq~i:ned DaQji v ,R. 2 TLR (R) 137, on the first day when the appellants ,·c-..~'"' -v.iere .., brousht before, the trial ma:1istrate, i.e. on 31.8 0 94 1 the char:'.~es were read to them but no pleas were taken and the case was adjourned to another date. The pleas \ ' could not be tak2n then because the offences with which .{ .the appellants were char0 ed were not triciple by a magistrate's· court; they w ?I''. triable by the Eccnorr.ic Crim63 Court, which is a Division of the High Court. Later, however, the ,,Director of Public I ::-osecut:Lons (DPP) issued a Certificate \ of Order for Tri.al cf an Economic Offence in the Subordinate .' Court under Section 12(3) of the Economic and Organised Crime Control Act, 1984, and the subordinante cou:rt then became clothed with jurisdiction to try the caset· Now, in- stead of then re2.diJ.: ... the char,;es to the appellants again and taking their pleas, the court did not do so. It just ;1, I , proceedeq,op. 18.11.,94, to receive evidence from witnesses \ and concluded the trial-without pleas being ever taken. - L J i The questiop. now is wha:t the consequences of the trial cour1•~· ' omissions should be. Al though Mr. Maira agrees that the .trial t was a rr·11lity (he calls it a mistrial in :. his submissions) he submits that I consider the appeal and allow it on the grounds he has submitted on. Miss Korosso, on the other hand subm.i ts that what should be done is to order a r·e-trial, especially in view of the seriouseess of the offence. 'She relies on Daudi v. R (1971} HCD -. ,5? and Stephen Samala .v ,R~~~ _ ·HcD no433 on this., In his su·.Jmiss:~-:ms Mr. l'li.aira has, besides the cases referred to by Miss Korosso,referred to · R, v, Ambali s/o Juraa (1959) E.A. 850 In both Daudi v VB and Samala v t.13 ( supra), ~:'i'R~AL.S "':.'.Sfl: . retrials wr.=re orderedc I think t:1a.t is the right course, particularly for serious offences such the ones charged in this case• To accept I✓:r. 1/iaira ts submission, would mean. considering, by this court, matters in a case in which ·there was no trial as no trial indeed- did take place-as 1;ed/3 : . / \ ( ·--- 3 - was observed in Q_amji v •. R. I d2clare the trial null and void and I quash and set aside the .proceedings and judgment, together with all the orders as he;ld or ·made by Kimaro PR}').. I I order and direct a retrial of the case, before and by a different m~~istrate, And pending their retrial, the appellants are to remain in custody • ... AT DAR ES SALAAM 9th October, 1995. For the appellants in person. For the Republic - Miss Mkwizu State Attorney • . Judgment deli.vered.