dpp vs daniel gaspary haule 2007 tzhc 321 6 august 2007

IN THE HIGH COURT OF TANZANIA I AT SONGEA CRIMINAL APPEAL NO.2 OF 2007 (Original Criminal Case No. 435 of 2006 of the District Court of Songea District at Songea) THE D.P.P...................................................... APPELLANT Versus DANIEL GASPARY HAULE.................... RESPONDENT Hearing Concluded: 4/7/2007 Judgment Delivered: 6/8/2007 JUDGMENT UZIA, J In the District of Songea, Z.A. Maruma, Resident Magistrate acquitted the accused person, one Daniel Gaspary Haule who was charged with the offence of Criminal trespass c/s 299 (a) of the Penal Code. As a matter of clarity, the learned Resident Magistrate couched her order in the following words: Court: “It seems the same case was withdrawn under section 922 of C.P.A of 1985 and accused was acquitted.” Order: “Accuseu shall oe free unless otherwise charged”. Following this order, the appellant, Director of public prosecutions represented by the State Attorney filed an appeal against the order. Only one ground was filed in this court that the trial court erred in law and fact on not finding that there was no proof of the plea of a n tre fo i' acquit to the Respondent. l The State Attorney, prayed to this court to allow the appeal and quash the dismissal order and order a trial de novo. When hearing the appeal, Mr. Ismail Manjoti, learned State Attorney, attacked that order, that the learned magistrate erred in law in acquitting the s^.o accused person as there was no proof of the defence of antrefoio acquit. He submitted, that since there was nothing to suggest .hat the appellant was charged and acquitted on the same offence, ;, iu learned magistrate strayed into a serious error in making the impugned oraer. He further contended that it was unfortunate that magistrate made the order without making reference to any charge which accused person faced and acquitted. I agree with a State Attorney that, the principle laid down in the case of Maduhu V ersus r e p u b lic (1991) TLR 143 was not followed. In that case, Katiti, J ls he men was held; “(i) It is the duty o f the accused to plead antrefois acquit in ord>: to derive the advantage o r benefit thereof; (ii) an accuy / person can raise the plea at any time, either as pie; in the bar to the second prosecution, or, at any stage in t he proceedings, before the closure o f the defence ^ ise; (Hi) It is the general rule that in pleas o f autrefois acquit o r convia, Ulj Durden o f proof, (onus probandi) lies on the party wnu asserts the affirmative o f the issue, o r question in dispute". In the instan; case, the learned trial magistrate stepped into the accused’s shoos, I .?n she stated “It seems the same case was withdrawn unuci b , j u n 222 of C.P.A of 1985 and accused was acquitted”. That being the case, the "regu!; ' is, in my opinion, a ground for faulting the learned trial n igistra. order. I therefore quash the said r,,'ing an- set as! the order. In the event, and for the reasons r .ted, I 'ow th rvoeal and order trial de-novo, the case ue nearc* y i clm ,L magistrate. iA 6/8/2. J7 I certify that this \ ? a true ♦ r1 y * r - * *J i p ' * • nici »r- ? ; V. /