20150212 TZCA Bukoba

• ··1· • .. '{.; I ' • • • . •• ~; ' ; • •• ~ ' • ' IN THE-COURT OF APPEAL OF TANZANIA . ATMTWARA . (CORAM: ·OTHMAN, C.J., MJASIRI. J.A. And MMILA, J.A.) CRIMINAL APPE.A.L NO. 236 OF 2014 EXAVERY JULIUS MWARUSHA ................................................ ~ ....... ~APPELLANT VERSUS THE REPUBLIC ••••.••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RES PON DENT (Appeal from the decision of the Higfl Court of Tanzania at Mtwara) (Mipawa, J.) dated 9 th day of May, 2012 in Criminal Session Case No. 47 of 2011 JUDGMENT OF THE COURT 28 th September, & 5 th October, 2015 OTHMAN, C.J.: On this appeal, the Appellant, Exavery Julius Mwarusha is aggrieved by the decision of the High Court (Mipawa, J.) which on 09/05/2012 dismissed his appeal having held that he had been rightly convicted and sentenced by the Lindi District Co_urt of the offences of stealing by public servant and forgery, respectively, c/ss. 270 and 333, 335(a) and 337 of the Penal Code, Cap 16, R.E. 2002. < _.,, ... . . ..... -~ -: .-:~_;,.: ..·- - ~ _,,.• .... ~.'!" ..... ••:, • _,. :~ • I .__ r I . Th~ appellant ·who appeared ·in person at the"h\:~aring of the· appear•. on 28/09/2015, was unrepresented. Ms. Mwahija Ahmed, learned Senior . q State Attorney represented the respondent Republic. For a proper determination of the appeal and the avoidance of doubt, the Court raised a point, suo motu, by seeking clarification from the parties on the specific offences the appellant was charged with, sentenced and convicted by the District Court on 29/04/2011. The appellant, a lay person did not have much to· offer, except to say . that to the best of his recollection, three charge sheets had been instituted at the trial CQurt, conta_inin9 thirty ·one (31) counts against him. On her part,· Ms. Ahmed readily_conceded that their records neither contained the substituted charges nor the fresh charges levied against the appellant in counts 139 to 144, both of which were preferred by the Public Prosecutor on 25/09/2006. She was confident that those charge sheets were not available. That in these circumstances, the fresh charges against the appellant and their respective particulars were not known to_the Court. She added ~hat the judgment of the District Court was also _incomprehensible without the availability of the substituted and the fresh charg~~- That the judgment that was delivered was no judgment as it· did not comply with L . - ..... . . . . •' . ~·. , ... , . , . .... . ~ , .. '. . ' ."seg:Jon 312_(2)-,of-.~he Criminal zProcedure:, Act; :-tap 20, ·~R.E; 2002: It ,was ~· . . · bad in;l~w ... " .Adverting to the High Court~ _Ms. Ahmed submitted that while it ~ . .. analyzed the evidence before the District Court, it did not direct itself on the irregularities in the trial court's proceedings. That it's decision to uphold the appellant's conviction for stealing by servant and forgery also does not . assist the Court in finding out which specific offences he was charged with in the original and the fresh charge. The learned Senior State Attorney invited the Court to invoke its revisional powers under section 4(2) of the Appellate Jurisdiction Act, Cap -141, R.E. 2002 to declare· a nullity and quash the District Court and High . Court proceedings from 25/09/2006, the date the substituted and fresh char:ges were-preferred by the Public Prosecutor . . We have combed the record. These is no dispute that on 26/05/2006, at the trial court, . the. appellant (ih accused) was initially . .. . . charged together with 11 o~her accused persons in the same charge. That c.harge contained 138 counts ·cerron.eously numbered 139 counts). Of those . . . counts, the appe'llant, in counts no. 1,8,12,15,21,59 and 61 was charged . . ... _,. --,·.,.:. ~r :· ... with ~onspiracyto ..- . com,:n.i.t_a cri.me ~/s.384; in courits.n·o. 2,9,16 and 22 her ~ . . was charged with Forgery c/ss. 335, 335(a) and .337; in counts no. 3,5,11,12,14,20,25;60 and 6.2 he was accused of stealing by public servant c/s 270; in counts no; 3 and 24 he faced the charge of Fraudulent False-' Accounting c/ss 317(a), arid in count no. 23 he was charged with Uttering a False Document c/s 342, all under the Penal Code. In all, the appellant was charged with 23 counts involving five distinct and different offences. On 25/09/2006, the Public Prose~utor sought to and was granted permission by the District Court to substitute the charges by amending counts no. 17,44;50,52,54,- 64 and 138 of the original _charge ·sheet; counts which did not-concern the appellant, but directly concerned his co-accused, the 1st, 2nd , 3rd , 4th , 6th , 8th ,10th and 11th accused persons. The Public Prosecutor also instituted new charges in counts no. 139 to 144 against the - appellant and in some of them, charged him jointly with the 2nd , 5th , 6th , ih and the 11th accused person. The record indicates that the appellant entered a plea in respect of counts no: 139 to 144. However, it is silent on the description of the specific offences he was· charged with and under what law or laws. 4 ,,. . ·........ ,.• .. ' . .. . . . . . . ·. , .. , . : . . ' "· ,, ~ ·. ; ~ _:- . ." l . . . ... ·:·' A. Glose,.scrutin½?'bfth-e~drigihal'"recbra ·by ou'rselves·--dio ,-not reveal the • • • ~ I • • exist~~ce or~ the substituted or· fresh charges.' ···we also note their non- existenG~;. in the· records of the prosecution authority as. admitted by the respo_ndent Republic. It i5. not trivial that the case had a joinder of counts involving the appellant and a number of co-accused in the charges levied in two of the three charges that were preferred by the public prosecutor on 25/6/2006 and 25/9/2006 and the trial proceeded at the District Court as one involving 11 ~ccused pe_rsons. We wo_uld agree with Ms._ Ahmed that in the absence of the record of the fresh charges and the state of proceedings at the District Court, with respect, it was impossible for the High Court to know the contents of the specific offences the appellant was charged with in counts no. 139 to 144, but also to know what the .. particulars of each offence was, in terms of the requirements of sections 132 and 133{2) of the Criminal Procedure Act .. Going by the record, counts no. 31 to 34 were omitted in t~e original . - . . charge instituted on 25/6/2006, yet the record. reveals that the 1st and 8th accused persons entered pleas on them (see~ page 86). The appellant was jointly charged with the l st · accused in counts no. 1,2,5,8,9, 11, 12, 14, 15,16,20,59;60,61 and 62. ·• < Some of tre accused per$ons · who were··or-iginally charged· on 25/5/2006 were not called bY: the District Cpurt to enter a plea on the substituted charge. instituted on 25/09/2006. For example, the 5th accused was originally charged on 25/05/2006 in count no. 17. The substituted charge instituted on 25/09/2006 sought to join the 6th accused. The former was not called upon to enter a plea on the substituted charge. Only the later was called to do so.· The addition of the 6th accused on that substituted charge, which must have been amended in the particulars of the offence to join him together with the 5th accused required him to have entered a new plea. It is trite law that it is mandatory for a plea to a new or altered· charge to be taken· from an accus~d person and failure to do that renders a trial a nullity (See, Thuway Akonaay VR [1987] T.L.R. 92, C.A.). Similarly, the 8th accused was not called upon to enter a plea on the substituted charge, which must also have been amended to join and charge the 10th accused \,Nith him . . Next, we proceed to flnd out whether the judgment of the District Court would have assisted the High· Court or this Court in resolving the puzzle we raised earlier? The pertinent portion of the Judgment reads (page 455 of the record): 6 ....;:. ..·''Jn _tf:Je.··cir~uinstances~i am'cJf;the opinJof(that :as ta/~f st the. offences . . in_ 1 except 17. then ' ' 25,59 then ..60~67, 139 ··.- .,. th~~ 140 -144 whenever -the other accused persons .1st . . . . ·- Z'd and j:h accused are charged they are lambs they . .. . ·didn't know nor involved-in whatever was planned, for instance, the (:fh accused it has found that she was · issuing cheque after the PV has already been approved. I accordingly acquit them. As I have said the payment was done by education department the first authorizer was the head of department where payment . . originated, I also find no plausible ground to told the :J'd accused guilty in all the charged count, as there is no any count of negligent causing loss again him. I further convicted 1st, r d and ~h accused in the said counts. But further acquit the 1st accused in the 63 count as no enough evidence was tendered to prove that he stole 600,000 vide receipt no 00062254. (Emphasis added). It is so ordered. Sgd:- D. S. Nduriguru. SENIOR RESIDENT MAGISTRATE 29/04/2011 ·.·: In our respective view, arr a. close reading. of the whole Judgment;. including the above crucial extract, with respect,·· it is not possible to -· ; ,(, _,,q .. . ., ...... ';., ~ '!:\~ o<, < decipher the , -.:.;.:. '. specifi~ . . ~ off~_r,lC~S ' . . . ar\d_ . sections of- the -Penal Code the a·ppellaht was convicted of by the District Court. On this, Ms. -Ahmad is cofr~ct that the j~dgment is bad in law for non-compliance with section 312(2) of ~the Criminal Pro<;:edure Act, which provides: ''312(2) In the case of conviction the Judgment shall specify the offence of which, and the section of the Penal Code or other law which the accused person is convictecl and . the punishment to which he is sentenced'~ With respect, we would add that. the judgment also did not meet the . . . requirement of section 312(1) of the Criminal Procedure _Act as part. of the reasons for the decision and. even the decision thereon is equally incomprehensible. If the appellant was acquitted of some of the offences . he was,charged with, as that extracted portion of the judgment pointedly suggests to us, the District Court too was enjoined under section 312{3) of the Criminal procedure Act to. clearly state in its judgment, the offence or offences, which he was- being acquitted of. This was not fully complied with by the trial court. 8 I •.. ' . .. . ,. ,, ·• .,'.;;~··: ·._· pi~t!JCt -~.oqr-ton ~9/4.4/'201.1.:.. He ser:v~ct.tnat ,-.._, \, • • • ::" • " • • t~~rn up)o ;24/t2/2@i4/·ih~n···~!;;:i• • • • a • •~• ,· '-•'. . '"i"' •• ~ h~ was released foll9wing a P.residential pardon. - -~ ' · Ordered accordingly . . DATED at MTWARA .. this day of 2nd October, 2015 . M. C. OTHMAN · CHIEF JUSTICE S. MJASIRI JUSTICE OF APPEAL -B. M. K. MMILLA JUSTICE OF APPEAL I certify that this is a true copy of the original. ~ : , P. W. BAMPIKYA COURT OF APPEAL . <\l, _,.....,..- r '·-. =--- ·r . .. . _!. ..!. Having dismissed the appeal, we proceed to 'irivoke our .reyisional · . powe,rs under s.4 (2) of the Appellate Jurisdiction Act.· Cap. 14:l, as pressed. by Mr ... Matuma, to quash and set aside the illegal Jail sente·n~~ bf 30 years . . Having been convicted as charged under s.130 (i} and (2) (e), of the Penai · Code, the minimum sentence to be imposed was life imprisonment as correctly pointed out by Mr. Matuma. We according hereby substitute the lawful sentence of life imprisonment for the illegal one of thirty years imprisonment. DATED at BUKOBA this lih day of February, 2015. . E.M.K RUTAKANGWA JUSTICE OF APPEAL B.M.LUANDA JUSTICE OF APPEAL I.H.JUMA JUSTICE OF APPEAL I certify that this is a true copy of the original. (;· ~~c--·-- DEPOTY REGISTRAR COURT OF APPEAL g.