20000612 TZCA Dar es Salaam

;t IN THE COURT OF APPEAL OF TANZANIA AT MWANZA· (~:!= ~-~!_i!_oAo 1 . KISANGP~~~- z 1!.~d- L£GA]<_1_!:JGI~\t.. ~.A•) CRIMINAL APPEAL NO. 209 OF 1994 BE'.l\vEEN RAf/JADHANI ABDALLAH APPELLANT AND THE REPUBLIC o~e4oocoocoooeo•o•ooooc,oo RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Mwanza) (Mas,.1:E_~~~) dated the 6th May, 1994 in JUDGJ<~MENT The appellant RAMADHANI ABDALIAH was found Guilty of robbery, convicted and sentenced to a term of fifteen years in prison, consequent upon his trial in the District Court of Musoma. He appealed to the High Court, Mwanza, where Masan.che, J. dismissed the appeal. Mr. Rutaisire, learned State Attorney then, did not on that first appeal seek to support the decision of the trial court. Before us.Mr. Magongo, learned advocate, decided to drop one of the two grounds he had filed and assailed the High Court decision on only the other ground - that when the original charge of House- breaking c>..nd Stealing was substituted with th.~t of robbery the appellant was not informed about his right to have recalled the prosecution witnesses who had up to that stage already testified so as he might further cross-eXamine them in the light of the new allegation, or even demand that they give evidence afresh. oc••/2 2 - Mr. Kabonde, learned Senior State Attorney who appeared on behalf of the respondent Republic, ·declined to support the High Court decision. He agreed with Mr. Magongo that the relevant provision in section 234 of the Criminal.Procedure Act 1985 had been offended-and that, as such, the conduct of the case after the alteration of the charge prejudiced the appellant and caused him injustice. After the appellant was charged with the offence of Housebreaking and stealing and four Prosecution witnesses had testified, a charge of robbery was substituted. The appellant was quite properly asked to plead to the new charge and he pleaded Not Guilty. Thereafter, without ado, another witness, the fifth and last, Det Cpl BENSON, gave evidence. The appellant elected to remain silent. He was found Guilty of Robbery as aforesaid, and got imprisoned for fifteen years. We think it is a pity that Mr. Magongo, learned advocate who represented the appellant in the first appeal, failed to raise the issue rel~ting to section 234 (2) of the Criminal Procedure Act, which is loud and clear that · Subject to subsection (1), where a charge is altered as aforesaid - (a) the court, shall thereupon call. upon the accused persons to plead to the altered charge; and (b) the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accuse.d or his advocate· and, in such last mentioned ~vent, the prosecution shall have the right to re-examine any such witness on matters arising out of sueh further cross-examination. It is unfortunate that this provision escaped the attention of the learned High Court judge. The appellant, who did not have the guidance of counsel at his trial, should have been told of his rights •• 0 ./3 ~:f,~.l?IIIXIJll£..4141!.)'¢Jl21!1i.•ll"'tlll'-~,.HJIPl!II.- 11 1 1 , - ,..,- • •- - ··-. • ., . - 3 - under the said section 231+. He was not, and we agree with both. learned counsel that the conviction for robbery cannot be sustained. We wish to say that the rationale for section 234 (2) is easy to discern. A new charge is introduced after some witnesses have already testifiedo The new offence charged may, as was the case here, consist of new ingredients and or·may attract different consequences, as was also the position in this case. In such a situati•n it is only fair and just that an accused person should be given the_ said right and opportunity. In the instant case, if the evidence before the substitution is ignored, the.re would remain only the testi.111ony of the police investigator, ,which would not have grouncl.~d the convictiono To the extent explained, the.trial was improperly conducted, and so the decisions of the two courts cannot be sustained. \:Je quash the conviction and set aside the sentence imposed. We svrnpathise with Mr. Magongo' s request that a retr:ial. shouP not be ordered as the appellant has been incarcerated for over seven years now. We shall not order a retriaL If the appellant is not otherwise lawfully held he should forthwith be set freeo DATED at DAR-ES-SALAAM this 12th day of June, 2000. -'- 1 o M. MAKAME JUSTICE O:F APPEAL R.H. KISANGA JUSTICE OF APPEAL K~S.K. LUGAKINGIRA JUSTICE OF APPEAL I certify that this is a true copy, •f the original. . ,. I !1j.\' J ( AoG• Hi,iRIJA ) DEPUTY REGISTRAR