20121029 TZHC Dar es Salaam

f 1 . 'J IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM Economic Criminal Appeal No 10 of2011 (Originating from Economic Case Number 8 of2oos in the Resident Magistrate Court of Dar · es Salaam at Kisutu-(N. Mwaseba-RM) Nicholaus Modestus @ Dang,ali. ............ 1 st Appellant Patrick Elias @ Mkini. ............................. 2 nd Appellant Vs. Republic ................................. Respondent JUDGMENT Date of last Order: 07-09-2012 Date of Judgment: 29-10-2012 JUMA, J.: The time was 14:00 pm on I 7 October 2008, Nicholaus Modestus @ Dangali and Patrick Elias @ Mkini were at Taringula Bar in Vingunguti area. They were playing "pool-table game." Soon thereaftei; ~group of police officers led by detective tl\° ~{', "'-j v \Ck ~ £ho\".. ~~ -le ~~t- ~ ' sergeant Osia Kibona arrived to arrest tbe~~Nicholaus managed I'-. A~ . . to escape) Patrick Elias was arrested and the officers asked him to Nic4ll\M_,.s accompany them to where Nicholaus lived. They did not find HHH at his home. The neighbours told the police officers that Nicholaus had just left a few moments before they arrived. A ~ 0. * decision was made to visit the house of Patrick Elias at Mtakuja Q~"V---~ . ~ ~ ~ area of Vingunguti. The police found the door to Patrick's house 2 ( closed because his wife who had the key, was not at home. ) Neighbours, who included Nasra d/o Mfaume and Josephine d/o John were summoned at the scene and the police officers explained their intention to carry out a search in that house on the basis of information that Patrick Elias kept illegal firearms in his house. The police broke into the room and carried out the search. Twenty (20) rounds of shotgun ammunition were found. _sw, t-9 ~""' The police officers did not find any ~hort gun. A trap was set by the police whereby Patrick Elias @ Mkini' s phone was used to 7W--- tire Nicholaus Modestus @ Dangali ~c\· to the trap and arrest. Whe Nicholaus Modestus @ Dangali " ,>'~\)"' was searched, he was found with 6 rounds of short gun g,\,,..o tJ u ~ . ammunition (red in colour) and a short gun with serial number 15445. A search ofNicholaus Modestus@ Dangali's home found nothing. During the Preliminary Hearing on 12 th October 2009, Nicholaus Modestus @ Dangali conceded that his residence was searched but nothing was found. Similarly, Patrick Elias @ Mkini conceded at Preliminary Hearing that his residence was also searched. At the Resident Magistrate's Court of Dar es Salaam at Kisutu, Nicholaus Modestus and Patrick Elias faced three counts. In the first count Nicholaus Modestus was charged under section 4 (i) and 34 (1), (2) of the Arms and Ammunition Act, Cap 223 R.E. 2002 with being found in possession firearm, a ~T~ 3 Number 15445 without a licence. In the second count Nicholaus () Modestus was charged under section 4 ( 1) and 34 ( 1 ), ( 2) of the Arms and Ammunition Act with being found in possession of six rounds of ammunition without a licence. In the third count, Patrick Elias was charged with contravening section 4 ( 1) and 34 (1), (2) of the Arms and Ammunition Act after it was alleged ~,JV\ that he -was found in possession of twenty rounds of snorrgttn ammunitions without having licence. The trial magistrate entered a conviction after it found that the prosecution had proved beyond reasonable doubt its case against Nicholaus Modestus and Patrick Elias. The trial court ordered Nicholaus Modestus to serve ten years in prison for each of the two counts, which are to be served concurrently. For the third count, Patrick Elias was ordered to serve ten years in prison. As shown earlier, Nicholaus Modestus was charged with an offence under section 4 (i) and 34 ( 1 ), ( 2) the Penal Code, which states: - 4.-(1) No person shall use, carry, or have in his possession or under his control any jfrearms or ammunition, except in a public or private warehouse, unless he is in possession if an arms licence issued under this Act. 94.-(1) Any person who contravenes any provision of this Act, or any regulation, notice, or order made under 4 () · i~ or the conditions ef any licence or permit, commits an effence under this Act. (fJ) Any person who commits an effence under this Act shall upon conviction except where any other penalty is provided, be liable to imprisonment and any other penal measure provided for under the Economic and Organized Crimes Control Act. At the hearing of this appeal on 7 th September 2012, the two appellants, Nicholaus Modestus and Patrick Elias represented themselves while the respondent Republic was represented by learned Senior State Attorney Mr. Peter Njike. Mr. Njike was assisted by Ms Lucy Digenyik and Ms Mariam Mbano, learned State Attorneys. In his submissions at the date of hearing, Nicholaus . ,~ Modestus raised an additional ground contending that their trial, conviction and sentence were a nullity because trial magistrate /'- did not take down their pleas to remind them of the charge facing them. Having scrutinized the grounds in the Petition of Appeal and submissions, this appeal in essence raises three issues calling for my determination. These are:- 1. Whether the substance of the charges were stated to the two appellants by the trial court and the appellants asked whether they admit or deny the truth of the charges facing them. 5 2. Whether prosecution was able to prove that Nicholaus Modestus was found in possession firearm· and rounds of ammunition without a licence. S. Whether prosecution was able to prove that Patrick Elias Mkini was found in possession of twenty rounds of shortgun ammunitions without having licence. I propose to deal, first, with the jurisdictional question whether pleas were taken and the effect of the failure to take pleas. Expounding on his additional ground, Nicholaus Modestus Al~j~ ~ c. I~ contends that the law impose legal duty on trial magistrate<i to , ~" ,.._ f-... r i,J take ,_pleas aH4 the learned trial magistrate did not comply with:~~ 1 .th.Ht duty. The Senior State Attorney, who appeared for the Republic, did not in his submission address himself on the failure of the trial magistrate to take the appellant's plea before allowing the prosecution to o ~en its case. w e ££8.-(1) The substance· of the charge shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth cif the charge. ££9.-(1) lfthe accused person does not admit the truth cif the charge, the prosecutor shall open the case against the . 6 () accused person and shall call witnesses and adduce evidence in support ef the charge s 4 i~i-j The wording of section 228 (1) of the CPA are clearly o_t.W~l(L.;lV M ~~s coJM_d "'~ty ~~ couched in mandatory terms,obliging the taking of pleas1\ My l~ vv7*~ ,w glance at page 8 of the typed record of proceedings~ bears out ~v,..IW?j@-• the contention of the Nicholous Modestus that their pleas were not taken before the learned trial magistrate (Mwaseba-RM) allowed the prosecution case to begin. \\-.&ourt of Appeal of Tanzania 1n the case of Thuway Akonaay vs. Republic 1987 TLR 92 was faced with an appeal where Thuway Akonaay was originally charged with threatening violence but that charge was withdrawn and a new charge alleging arson was substituted thereof The appellant was not called upon to plead to the new charge at all. The Court of Appeal had this to say: ...... It is mandatory far a plea to a new or altered charge to be taken from an accused person, as otherwise the trial becomes a nullit:y. We would refer to an old case which had dealt with this matter and which is still good law. The case is Cr. Appeal 220156 Akbarali Damji v R. reported in 2 T.L.R. 13 7. The head note reads: The arraignment ef an accused is not complete until he has pleaded. Where no plea is taken the trial 7 is a nullity. The omission is not an irregularity which can be cured by section 346 ef the Criminal Procedure Code. \c tb-P--- °'--~~ Vd-b-~ In view of my finding that the learned trial magistrate failed A. ~~ , ~ b.t\'l~~+wV\ ~ q \~ Cs~/ to take the two appellants' plea at thecomman-cement of their trial, the whole subsequent proceedings, conviction and sentences \,)QX\.. ll.\\ against the appellants w-as- null and voidi it is not necessary for. to ~ ""'-clL ~ . me to go into the other issues I framed fur determination of this ,-.. appeal. I should also emphasize that the decision of the Court of Appeal in Thuway Akonaay vs. Republic (supra) is an authority to the legal proposition that where no plea is taken before the commencement of a criminal trial, the whole subsequent proceedings, conviction and sentence against the appellants cannot be cured by section 388 of the Criminal Procedure Act, Cap. 20. Circumstances of this case do not warrant an order of a retrial. After studying the records of the subordinate court I noted that appellants have been custody since 17 October 2008 when they were first arrested. At one occasion, Nicholaus Modestus informed the trial magistrate that the case facing the appellants was not new before the presiding magistrate because they had also faced Criminal Case Number 1144/2008 which was withdrawn before a new case was preferred. 8 -_Finally, I shall allow this appeal. Conviction of the two - --.-..- appellanfs -is q-usished and the sentenceJ'which-the-trial magistrate __ - . ~ ,~ Nl> "tr-¼~"'h. ~ - - imposed l-6' consequently set aside. The two appellants shall be set /\. free unless they are lawfully detained for any other offence. DATED at DAR ES SALAAM.tis 29 th day of October, 2012 I.H. Juma JUDGE