20010628 TZCA Dar es Salaam1

, t IN THE COU1T OF APPEAL CF TANZANIA AT flAP ES SALaJd (: CS.I1'INAL ;PEAL NO 51+ OF 1996 BECi1EN ISSA AThUNANI 'lOJO. ..eAPiELLANT AiD Ti{t ANJUBLIC. • RPOIDENT (Appeal :rcm the decision of the high Court of Tanzania at Dar es Salaari) (arido) dated the Lfth April, 1994 in Ec onom ic Cr ime Case No. 10 JUJXhENT OF TNO COURT ACJ.: This is an appeal by Issa Athunani Tojo from a judgment of the High Court (Kyando, J.) dismissing his appeal and upholding his conviction on a charge of unlawful possession of a fireann and three rounds of ammunition, contrary to section 13 (1) of the Arms and- Asaunition Ordinance as read together with sectionc 21 and 59 (2) of the Economic and Organised Crise Control Act, 1984, and the Written Laws Miscellaneous Amendnents act, 1989, and also upholding a sentence of seven years' imprisonment. One of the appellant's coaccused, Yahya Abdallah, who was also found guilty, did not appeal agaiast his conviction. A novel point of law, namely, whether the doctrine or principle of issue_e3tc1 is applicable in criminal cases in this country arises in this appeal, but we shall first cull out of the record the essential facts of the case which have given rise to that issue. Happily, those • *12 I L - -$ 2 - facts are not coiplex. Moat of them were, in fact, not in dispute. They may, we think, be narrated as follows: in April, 1990, one Hakem Jetha, a resident

of Norogoro, was robbed of his rifle and some other property by a group of persons. On December 22, 1990, the fireaie was recovered by a team of policemen who, following a tip their leader had received from an inforier to the effect that some men were planning to perpetrate a robbery, pounced uDon six nen, including the ap'elarit and Yahya Abdallah, who were in a house, owned by the appelLant, situated within Morogoro town. The six men were arrested in various parts of the premises. The appellant's arrest was effected by one D/Sgt. Gabriel, in the presence of Corporal Ramadhani. When the room from which, according to the testinony Gabriel, the appeilant had emerged themediately before his arrest, was searched by tho plic, Hakem Jetha's stolen rifle was found therein, lying on the LLoor underneath a bed. Being in possession of this evidence, the polico charged the six men before the District Court of Morogoro with robbing Hakem Jetha of his rifle. The appellant and his co.accusod protested their innocence. The learned trial magistrate acquitted all the six accused of the charge, • but convicted the appellant and Yahya Abdallah of the offence of receiving stolen property, contrary to section 311 of the Penal Code, and sentenced each of them to three years' imprisonment. Aggrieved by that decision, the appellant appealed against it to the High Court. I4kude, J., allowed the

appeal, quashed the conviction and set aside the sentence imposed thereon. 1!xercising revisional powers, he quashed Yahya Abdallah's conviction and set aside the sentence imposed thereon. The learned Judge held that the evidence laid in the scale against the appellant and Yakiya Abdallah was insufficient to constitute a basis for making a finding that the two men were found in possession of Jetha's rifle. In the course of his judgient, he said: I -. .• e..13 -- 1 - It seems to me that before a person can be convicted of the offence under section 311 of the Penn-i-Code it must be shown that he reccived the property which was felonicusly or unlawfully obtained and he did so with knowledge, actual or constructive that the lJroperty was feloniously or unlawfully obtained. It is not enough, as it happened in the present case 1 that a person owns the house in which the stojen rroperty is found by the :)olice. In that case the element of receving has not been shown, let alone the knowledge that the property had been feloniously or unlawfully obtained. The rule in MWiPCI NJOPOCf v1 76 E.A. 624 is that where there is no direct proof of theft or ct receiving goods knowing then to have been stclen. the ordinary rule ef cii cums:antial evidence must he applied, namiy, that the circumstances must be such as to convince an:' reasonable person that nc other coaclusion was reasonably posiblo.

As it happened in this case the gun 'as found in a room in which severa1 other people were found and so no such irresistible isference can be drawn.t The police were usdauntad by Mkude, Js deciSion. On March 18, 1991, they preferred c charge of unlawful possesaion of the rifle and three rounds of aomni-t ion, before the District Court, against the appellant and his Ldve co-accused. The basis of this now charge wha still the allegcd possession by the accused of Jethas rifle. The appellant ani 111iS co..accused unsuccessfully raised a plea of antrefois git unr section 280 (1) (a) of the Criminal Procedure Act, 1 985. As airadY pointed out, at the end of the trial, the District Court .../k - LF - convicted the appellant and Yahya Abd.allah as charged and sentenced each of them to seven years inpyisonment. The appellant was of the view that his pica of autrefois acquit ought to have been sustained. He appealed against the District Court's decision to the High Court on the ground 1 inter alia, that the learned trial magistrate had strayed into an error in law is rejecting his plea. Like the learned trial magistrate, Kyando,J. found, no merit in the plea. In bhe course of his judgment, he said: ... I fubly agree myself that the appellant was acquitted in a case charging his with robbery and not in one charging his with /fencej in this case. His plea of autr:fois accuit therefore has

no substance or merit and the trial court riht.ly rejected it. I hereby reject it too.' Before us the prinary contention of the appellant who was, as was the two courts be16, unrepresented, is that his plea of autrefoISaqtt 'ias sustainable. His grievance is that Kyando, J., misdirected himself in law in holding, as he did, that the District Court had directed itself correctly on that plea. Since we were inclined to be of the opinion that the plea of aut refo isuit was not available to the appellant in this case, in the Interests of justice, we invited Mrs. Mkwizu, Senior State Attorney, to address us on the question whether the doctrine of issue estoppel applies to criminal trials in this country and, if it does, whether it is applicable in the instant case. The cruc or the statement of that doctrine may be stated in the words 91 Lawson, 3., in ReLina v Ji97/ I Q.IS. 398, at p. O1: -C - --.-- . 1' -5- 'Issue ostoppel can be said to exist when there is a judicial establishment of a proposition of law or fact between parties to earlier litigation and when the same question arises in later litiga- tion bctween the same parties. In the- later litigation the established proposition is treoted ar conclusive between those seine - parties. It can 9 be described as a situation when, between the same parties to current litigation, there has been an issue or issues distinctly raised and found in earlier litigation between the same parties . In order to invoke the doctrine of issue ostope1 the parties in the two trials must be the same and the fact-in-issue proved or not in the earlier trial must he identical with what is sought to be reagitatod in the subsequent triai see ]avderSi v tatc of Hayana, A.l.R. /9'97 S.C.

356. The principle differs frem the autrefois principle, embodied in sections 137 and 280 (1) (-a) of the Criminal Procedure Act. The difference is described by Lord Devlin in Conno1 v iiirector of Public Prosecutions i96j7 2 All 401, at p. 436 as follows: * "... The differ-once between issue estoppel and the autrefois principle is that while the latter prevents the prosecution from impugning the validity of the verdict as a whole, the fon-ner prevents it from rdising again any of the separate issues of fact which the jury have decided, or are presumed to have decided, in reaching their verdict in the accused's favour . There is no provision in the Criminal Procedure Act or the vidence Act, 1967, which embodies piinciple of issue estopo1. hat is embodied in section 137 and 280 of the ±onser Act is, as already pointed out, the I, 4 .../6 -6- autrefois principle, and what is embodied in s. 123 of the latter Act (the Evidence Act) is estoppel by declaration, act or omission. Can the principle of issue estpcl be invoked in a crisinal cane? Placing reliance on an observation made by S.K. Sarkar and Ejaz Ahmed in their book 1.i CF E\,IDLNCE, kth ed..., hrs.Mkwizu invited us to answer that question in the negative. The observation, at p. 1223 reads: - iule of estoppel is not applicable t to crisinal With great respect, we are unable to accept the learned Senior State Attorneys

invitation. The statement relied upon by Mrs. Mkwizu, namely, that the rule of estoppel is not applicable to crisinal canes, to support her argument, is clearly made in reference to estoppel by declaration, act or omission as embodied in section 115 of the Indian Evidence Act, 1872, which is ij materia with section 123 of our Evidence Act. The view that the observation relied on by the learned Senior State ittorney haz no relevance to the principle of issue estopei is re-inforced by the learned authors observation at p. 1315 of their book, which is a).mot a repetition of a passage in the judgment af the Supreme Court of Lndj.a in MasudKhan v 5tate of Uttar Pradesh L1 977 I S.0 ,R. 793: Prmnciple of issue estoppel is simply this where an issue of fact has been tried by a cpetcat court on a former occasion and a finding has been reached in favour of an &ccused, such a finding would constitute an stoppel or res Judivata against the prosecu- tion not as a bar to the trial and conviction f the accuseU for a different and distinct -7- offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by 1aw. In our opinion, this passage leaves no doubt that in India issue estoppel is applicable to criminal cases. There is a stream of authority from that country plainly

demonstrating that, contrary to Mrs. Mkwizu's submission, issue estoppel is applicable in cr:iminal cases. Those cases include PrasadSinha v The State of Bihar 1971 S.C. 458; MasudKhan (supra); and RavindeSJ v State_oryana.. In has4Khs case, the Supreme C_speaking through•-41agiriswan:i, J., said, -at p..795: The principle of s2xjl issue is simply this: that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused such a finding would constitute an or réc j,udioata .ega Inst the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by law. The Supreme Coptt, having quoted a passage from the opinion of the Privy Counc.il ia v Prosecutor, of hale 21 95Q.? A .c. 48, -proceeded7a little later, to quote the following passage from the Judgment of Diz, J. (sitting in the High Court of Australia) in The Kin vWjlkes (19+8) 7C.L.R. 511 1 the report of which, unfortunately, is not available to : I • A. . - .--- 6/ -- - US fl5ttO 8T I " °J uT P°° s trtputj 4vqZ iqop4m Jc 9utuosmoa ; seooxd Gq4 qzTm ss -i ITT4 9 'oddose Tre SUtlOWU t0t UtPUJ 6T3O SO1LXODU JO seaujoaaJOD oq4 q4TM 'pOtLX0UO3 4ou

sç to&Ioso ongt oq. oj; ttqi i ••• s2t.rtp000.zct jAt3 Ut ;ooçqns v sT US UtpGoo.x -i SUturtJo UT qu.--Iut2pnc iq Ido;s. us Jq ppnjotd qnw er st utoz ou., 9 r'ro 96 OtL1 A jj Ut it..Z49ny JO JtlO) tVRTjj 91 JO JU, ttpnC wo.J osgsciT 2 UtMoTToJ Mll IUAOJdcI1 1tM poto o u1oo cDuJQJdnS OtiLli p U 'uo8t -j fq joxc1cIs ttM p.onb oe-[ ,e svn -eOrs-smd -sTlql da P .**UoT4v3TjTT xotxd Kq P0114as sxs tOTtM 90fl591 Jo UOt ttU eq O.xUO qottM 0itJ00p ou—o,t UOdrt spuedep - suTpard Oqq, U9Mq OSJ JO MS1 JO tlOi3T9OctOJd s Jo 4UEKU UTTq3 D.'topnC Oq4 qqtM-peuzouoo 8tTddoUS--- anssj TId1 OU ptrtoti ieddo Jo setrx LrstxtPw Oq tik uOSUa.x ou sos -E SOOXU p2JJ0 JO UOt1.tpUOO JT a UTPOoOOtd SttOtAOJd oqq Ut JsUOGtJd Otfl JO TSTflb0S °W ti-T'' utsuootr eq JT?)ST 49nti 2ttp5O0O1 quenbsqns m14 Ut UMoJ qq ;o Uot29TU stn •.xsuost.xd otzns oq4 rtts uo.zD °w q 2trzps000xd juenbosqns ut oss-t.XU OflSSt 110 1XtATOAUt tss000U WkOJ3 Stfl. xti3u POUTctXOOP U'pOOOOJE JOIJd sq snux sxszj JSUOStJ(t OUr29 Oq4 so TrTJ4 tUTUT.X PUO US oflss u-E 4 tl2nojq St t1TW T5T-' SnOtAO.Xd 8 WE UoStJd JO .XflOASJ Ut poUTwxop Gt A 4TITOd swts Oq4 qUqq'o3uoptA3 xodoxd Sq Petdx '° JI°T JO pJ000J Sq 9Jr9cIu 4T JT s&OSO OrLsSI 110 91 OJOqq lrqqMOA GtJ4 Ut OUOaM uttou 91 aja7z qsq ow 04 saredd -C 4T ". issue or issues have been distinctly raised or found. Once that is done, then so long as the finding stands, if there be

any subsequent litigation between the same parties 1 no allegations legally inconsistent with the finding, may be made by one of them against the other. In our opinion, it is not of little significance to observe, as we do, that in Canada, too, the principle of issue_estopo1 has been applied to crisinal cases: see footnote 22 at p. 1037 of PHIPSON ON EVIDENCE. In U.S.A., too, the principle may afford protection to an accused person: see the refercrces to Sealfon v United_States (19 1+8) 332 U.S. 575 made in both Connelly and B.(? s cases s. Does issue estoppol avail an accused person in England' To this question we now turn our attention. Until when the appeal in Director of Public Prosecutions v Hy, p19777 A.C.I was determined, it seemed st-t-ied thatundsr the EnglishIsw an accused could in-yoke the principle of ins estoel against the prosecution. In Eamia casea, Lawson, J., entertained no doubt that issue estoppel applied to crininal proceedings. He held that the plea applied with mutunlity as between the Crown and the defendant in such proceedings and could operate when the relevant issues were determinable with precision and certainty by reference to the earlier record and what occurred in relation to them in the course of the previous proceedings. In onne) case three of their Lordahips, Lord Morris of Borth-yest, Lord Hodson and Lord Pearce were of the view that the

principle applind to criminal pz'oceodings. Lord Devlin, however, specifically dissented from that view. In the course of his judgment, Lord Hods.ozt said, at p. 430: - _ii ootiot 6. S a Tanp ioTqa JOOW A'UU OATap JOU ptp OT.) U4 1 Z1A oq ol. MCUT )tl tT U)Wc4U9 c-t-tn;-t-t-cM piq )4 OUT 8utq uot Joit oq UTt! parsqo Gun oil .xop3r1 potrbo s-em o /.ci. 3ut..rnp OOItOA Jooiu !Jfl? 311TA-c.xp OUD UOPUO1OJ oqq. 'uO-Eenb .t o; tUU Ut 'oouoptAo u 1ccp 4-Clq4 uo o- ootq .00m O JAtrID OLfl. G2 4 uopuodsaa aq 2Utt,Ttxap! UT 4 30jaOD t:t .XOOt;JO 0D1[OCI U JOtOqM g2 . 4U OncT STuO aqT poI;-r[Urtbtp OTTW '6t 1 ,8L inr uo OTOTt!OA ioow U 3u-c.&-rxp P XUtI3 SUM 4 u0puOdg0a au t!o-ctlM 9 tpU4 Otfl. Ut pesiXswns [L) Er qai t'T'l TTUT° UT Js]cI o; oo OU Sot! ITATO Ut 99UJOdO .T qOTT?& UT ULZOT UT UT ocIdoso OflSSt UU ')TOT )T2U UT i4iJOCUtU O1 )~ (j pO9JOJdxO SMOTA ai tuoJj pozUdop •' (th) SO S±EILUflH Ut 'SPXO JO OflOjj OUT 'AOq '..TDTt UTLT, ! ,4T UTqtM 2irq 'U3 4 .JT PCT4T4UO St 1 UTT 0ddt14 Put, 0 . V (O617 osso uAtSUqurS UT Oqxre4 OJd postu000.x lI P1b tOJItflu adtoutxd et; JO uot ot1dth cq4 ptrtqoq cot 'IUTtl I '4 0TW4 Mtt OUT J )dt? Ut' si nq tL\O .XflO Usj1 'SYtUflOO JOUTO UT T1OO OJOi ZUo uoo•o.x ;o 04 pTJ)J3.z uoaq oq qoTq?k 'IOd(1oSS onioT uo aoutox 1q op o4 4 q 9 , rtos SUtj 9t! STt S'XTnbZ TT 1 t10114M ttT0ttTJCI :)q4 JO UOTStTOX JOZU U OMt'W oq. ScTTSpJO JflO opiansaod troo oq 9

1 1t TTJ 4 2nul 4UL-T-[a(IJ'7- Oj p3UJOOUOO St TOO SU JIOJ os - OL officer was a prosecution witness, with others, at the second trial. The judge, rejecting a pica of issue estoppel raised by the defence, allowed the police officer to give evidence again identifying the respondent as the driver of the motor bicycle which he had stopped on July 18, 1 972- The respondent was convicted. The Court of Appeal allowed Hurnphry 's eppeal against conviction, holding that the iioctrinc of issueesoapplied. The House of Lords reversed that decision. As already pointed out, their Lordships departed from the views of the majority in Connell case () and held that issue Ct- estoppel, in the form in which it operates in civil cases, has no application in crininal cases. The difficulty of identifying issues in a criminal trial (conducted in England), because of the absence of pleadings, and the fact that verdicts given by the jury in those cases are of general character, appear to have weighed fairly heavily on their Lordahipa' minds in arriving at their decision. In the course of his jut Ird Salncn said, at p. 43 D - 'The doctrine of issue ostoppel is complex d d highly technical, even where applied to civil proceedings alone. In this field, however, it is firmly entrenched and performs a use ful function. It brings finality to litigation. The whole procedure relating to pleadings in the civil

courts is appropriate for defining with precision the issues between the parties. Once these issues have been ascertained and fought out and then finally adjudicated upon in the courts, it would be unjust and absurd if the disappointed party, save in certain exceptional circumstances which I need not 4 - 12 - recite, were allowed to reopen the issues and start litigating them all over again. It is in the public interest that litigation should have an' end. Li8 Lspdship went on to say: In the criminal field, however 1 besides being complex and technical, the doctrine of issue estoppol would, in my view, also be imappro>riate, artificial, unnecessary and unfair. It would be inappropriate because there are ne pleadings defining the issues and no judgments explaining how the i.ssues (even if identifiable) were decido. Sometimes, as in the present case, it would be possible to identify the issues. Eut it would rarely be possible to do so. Since juries give general verdicts guilty or not guilty' it would often be difficult, if not impossible, to do more than guess how they had decided any issue capible of idontification. IT Lcrcj du Luie, alfia al1uc1cl to the .di±ficulties pointed out by Lord Sa1mon. He said,at p. 2+9: it is not surprising that, at an early stage in the expression of his doubts, Lord Devlin said tin Connelly's cas7, at p. 132+2+: Tbe main difficult about

its application to criminal trials is that as a rule there is no detarinination by the jury of separate issues; and so their conclusion an any issue can be reached only by an analysis of the generctj. verdict. b vtnTJTcp M14 99flflt BUTNUTq4 JO £f4 9w O zep:A fl 3 Q 9 OJd°TQd A UTtAI9tOUIt1 ?TXIOIdthUt T 4T °W sasrco UT Pa'Tddv eq tttM zT jvq4 .xe2u''p e.xoq. 'uxoostp 0; QTfl. QJeqM 9Q93 Ut pOUtUOQJ Ut tedcio;o ertt jo trç.zcr oq; aouo 4v q4 sT Vtfl°TJJTP :;t; (O+fi '? 1 7 0-667 ttrWT.z3 qEU alq4 Ut OaI.) P9P.r9uowp Xttflj.mO 1 P1 PTAa 1j4 '39?O 4U99,0,TCT et.fl tr er 'pe4U1o9t eq UO anssT eAç9- ap aT44 jT UQAC :ps tspior1 VT4 'op o; ptqo AIxeue ;ou e.r& £et; qo.tm-.- uoi9 -roep .z-teq; .XOJ 9tXO9?Q.X oq 04u4s Xcq4 gga -run 1 $.XflO ,9O;Js•2W oq4 Ut UQT9tQO o4 UtflO.Z UT PGSUO.IOW!: 9nYW.IOUQ eq tw not3Jtp 94g. PTLV •pQ9n333 Ot 9UtUt1 JO XOJ ptznOJ LmC oq; 90fl9Ut JO iOJtd qzrrqm uodn o; ;nJtj;p eq peprç txu .t 'peAtOAtrt Ut )fl99t QUO TXUT.fl. OJOW Jt 'pUU Utrpo-tcI t'°J ou 'ePt u41ro Qtfl. UO o)iTtUfl • q Eow 9t ctT?u-e. ttC tQfl' 9flcflU motl se;J;enut 9 IO 96 uEeqj A Z.X4 U U0t$tQp :tznv Q43 oTTiqm 'eq uo senset ott; Q94t1UU o .xo;;o anq4 But4v.149nij MOt JO OTfiWUXO UT? JQTrt Ut A 0U3 , JO .JttT19. JO QUO t&11T9 'UQUEC JO 4tJOCT?W ;UCA e; Ut 'Ut OIJQA PtU cI. - 1+ - Courts in this country are empowered by section 2 (2) of the Ju1icature and Application of Laws Ordinance to

apply the common law as on the twonty-second day of July, 1920. Authorities, nG1Udi2g Hman. case pa and th4 Connelli case 2upra appear to us to demonatatc that prior to 1977, when the house of Lords, in 0aa0 reversed the earlier decisions, the common law recognised the the ioct-in e.f jmste stcp in criminal cases • We are not persuaded that the difficulties of applying the dotrine in orininal cass,, alladed te by *heir Lor4shipa in Humhrs's case, exist in our ouni'y. It is true, of course, that rip pleadings are framed in criminsi vemos ± thas. oointz'y. But bQaring in mind the mandatory provisions of suction Z of the Crj.minal Procedure Act, which require a trial court, before the trial commences, to identify issues which are not in dispute, and takiag into coesicLeration the provisions of sections 312 (1) of the Act and 32 (2) of the Primary Courts Criminal Procedure Code, which enact tbat4udgmen-ts-uet contain poin for determination, the decision thoreon and the rans _f4or sucft, decisions, we are of the settled opinion that the primary ansiderati.ose which moved their Lordships in Humphrys' case (supra) to depart from what the majority of their Lordships in the Connelly case had held ta be tm6a ].-ou a,lination of the dootrine of issue in ximin cases ]aave ne .*e.tgt in our country, where the jury system does net apply. As regards the danger of the dotripe being applied in

cases where it is inappropriate, we are content to observe that the doctrine should not be given uniersal applicability. If its applic.tion in certain situations is likely to give rise to injustice, the solution not to exclude its application entirely, but to limit it to cases in which it would promote fairness. As was rightly observed by Lawton , J., in one of I - - 15 - nterventions in the course of argument of counsel for the Crown in case in the C.urtof Criminal Appeal (see D967 A.C. 1254), it would be deplorable that a defence available in civil cases would not he available in identical circumstances in a criminal matter. ma dnents delivered in Hoen and Connelly's cases do not, however, show that before July 22, 1920, the common law recognised the application of the doctrine of issue estoppel in criminal cases. We find the reasoni.n,g in the judnent of Lawson, j ., in Hogan's case and that of the majority in the C90o lly .ca&e aG persuasive that, ass4aming that before the reception date the common law did not recognise the application of the dootrins in. criminal law, we are prepared tc 3oJLe the proviso to section 2 (2) of the Judicature and Application of Laws Ordinance, modify the common law, and hold, as we do, that in this country the doctrine aipljes In crimixaa3 cases, 1' ieopizig in view of what we have said, we pass to conaiccr the facts of the instant case • One

of the. issues in the appollant seood trial was the some as that in the first..trial, to wit, whether the appellant nndd, hi.a co-accused had been in possession of Jotba's rifle. 1 Mkudo, J., as will be recalled, anawered th isue in the nata. We entertain no doubt that • for reasons we have eneavourcd to give, the prosecution was bound to accept the correctness of that finding and was precluded from taking any step to challenge it at the subsequent trial. In other words 1 the prosecution was estopped in the second trial from seeking to prove that,contrary to Mkude, J.'s finding, the appellant and his co-accused were found in possession of Jetha's rifle. The mounting of the prosecution against the appellant and his co-accused in the second trial was ineensistent with what is right. Kyando, J., should, have allod the appeal before him. I .J L I - - .. ....-.-.- .... For the reasons we have given, we allow the appeal, quash the pp1lant's .coiavictionand isposed. thereon. •Erc,isg.reyisenu. owern confexr.d .upnthis' Oour5t , •k(2);o.f .tho . . Appel-1~ to Jurisdiction Act, 1979 as amended by the - Appellate Jurisdiction (Axnenc3jnent) Act, 1993, we quash Yahys Abdallah's conviction _­i ' d the sentence inposed thereon. As the tw thdn are, as far as this case is concerned, out of prison, we make no order forhir release. Though the appellant and his co-accused wilIderive o

practical advantage from our decision, they arc entitled to have their convictions ex unged fromrecordz - . . -• ...-.. - -.•- . )iThD at DA.I b bi LkAi t}'s 28th day of June, 2001, 3 A. 3AP1XITA c:I:uF JUSTICE L.I.I. MAKAME jUS TICE OF APPEAL •A.L.RAI4ADthNI - •------JUTICE OF APPEAL x1ce I certify that this is a true copy of the origiso.l. ahya nvct1Ofl. :5 / f .... I / Lple ( F .L • K. WL.MBALI ) PUTY RIRAR arises ential those. 0