19771003 TZHC Mwanza

IN THE 1-!IGH C ,;URT OF TAJ\!Zi,1\'IJ\

AT MJANZA

APPELLATE JURIJDICTION HIGH CuURT CRHUNAL A;,1?1:.;AL NO. 197 OF 1977. (Original Crimi~al Case No. 160 of 1977 of the District C6urt of Ngudu District at Ngudu - Before J. s. Kagine, Esq.; District Magistrate) · oEusot:i)IT IL:uViBA •• o. .•............• ~ o • • • • • ~ • • • • • • • • • • • • • • • APPELLAl'-fT versus THE REPU BI1IC O O O O O C, 0 0 0 0 0 0 0 0 Ct O On~ 0 a O O O O O O O O O O O O O O O O O O 0 0 0 0 a O 0 0 RE3POND:::~1,J'l 1 JU:JGEtJENT LUGAKII~·~IRA 7 J. ~ This is an appeal against convictio~~s and sentences. The appellant was chargf,d 1i th eleven counts invol vi?:1g forgery ii:ivol ving forgery and 1 stealing by public servant ~nd was convicted on ten of them. He was variously sentenced, the sentences aggregating to 3 years' imprisonment. The determination of this app~al turns on the procedure adopted by the trial court. The record indicates that the appellant was f:Ln;t charged on 23 July, 1975. On 15 August, 1975, before any evidence was adduced, the charges were withdrawn and fresh charges were substituted. The hearing then commenced and six witnesses were called by the prosecution. On 3 January, 1977; however, the new charges were similG.rly withdrawn and fresh charges were substituted. The app~llant was invited to plead,thereto and hearing continu~d with the 7th to 11th witnesses wh~n the prosecution closed its case. There is no indication of any

kind that the appellant was advised of his right to recall the witness ,,s who testifi·,d for further cro.ss - exa·'•ination or, if h2 \Jas, that h~ elcct~d not to exercise that right. This procedure violat~d the provisio,-!S of s.209 (1) of the Criminal Procedure Corle and I am not certain thc1t the appellant was not prejuoided thereby. My uncertainty is accentuated by the fact that the charg~ s;10et which was withdrawn on 3 January, 1977 cannot be traced on th~ r~cord. As I have indicated there should have been three charg~ sheets: the one which was withdrawn on 15 AucJust, 1975; the one which was withdrai1n on 3 January 1977; a,:.d the one which was substituted on th0. lattE,r date. I have traced the first and th2 last but not the second. It is therefore difficult for this court to know whether the charges withdrawn on 3 January, 1977 were defective in substance or form as to ,··,ak:G tlv:ir substitution necessary 0 Characteristically, the trial did not comD~:t on this aspect but mer~ly accepted th•.:; n,~w charges as if h0 was bour1d to do so. Section 209 ( 1) makes it cl ·.a.r that it must appear t,.) the court that a charge is d,.d.'ecti ve in substa.1c,: or form b,~fore it can order an alt ,ration. It is not bound to acceot any alteration, and may refuse to entertain one, if it is not so satisfied. By rc2ason of these irregulari tL,s it is impossibl~ to tell

tl.e exte:·.t tJ wh:·.-::h the appellant was prejudiced and I hold that the triul was a null.i.tyo I theref'ore allow this app,':al, quash the convictions and set aside th2 se-:tences imposed. I have given serious c:onsidc,r.0tion to the qu2stion of retrial as suggested by the l,~arn~d State Attorney but I hava been unable to resolve the battle in my conscience. The appellant is a victim of recurrent mental disorders. There is correspo~dc~cG on the file from doctors and officials of the Ministry of National Edu :~tion, his former employers, ~,ich speak loudly on this issueo I do ?:1ot consider such a person fit to undergo another ord~al in th,.~ c ,-1.rts but I consider that law should be temp,cred with humanity,. The appellant should therefore be set free unL::ss further lawfully held. A,1rn,o,,;£: -·· ~ '1 ,,,J.:,'V\,•.. .' MWANZA. =KO s7:~ :·tw:ii\ .IN RA 3/10/77 0 JUDGE.