19850628 TZHC Dar es Salaam

IW THE HIGH COURT OF TANZ.ANU AT DAR }~S Sf,IJ,.AiVI APP~~LLATE JURISDICTION - HIGH COUH.T CRil.HNAL APPML NO. 90 OF 1984 - ORIGWtL CHII·;lINl,L CAS:il: no. 515 OF 1981 OF Till<~ DIS'.l.1lUCT COURT OF. IL/I.LI\. DIS'l'RICT AT KISUTU Defore II.H.N. Kingaru Esq; District Ma5istra.te JlJl\1"/1,, IDRAIID;i I·IASS.i.~T •••••• o • • • • • • • • • • • • • • • , • • • • • • • • • • • • • • • • • Appf:;LLANT versus 1 .rHE UNITED REPU'.JLIC ••••••••••••••••••••••••••••••••••••••• • RESPONDENT JUDGE!iIElfT .MKATTE, Av: J. This is an appeal by Juroa Ibrahim . Hassan . 8.(J!linst his eonvicition and sentence in the District Court of I1ala, at K1sutu on four charges. He was-charged with and.convicted of two counts of personat:Lng a public officer c/s 100(2) of the l?enal ·code, one count of obtaining money by false pretences c/s 302 of the Penal Code and one count of attempting to obtain money by fnlse pretences C/ss 302 and 281 of the Penal Code, Cap. 16 •. He was sentenced to two years in ea.ell count one and two and to•three years :in each count three and four. I he,::,.rd the appeal and at the end of the d~y I qu..~shed the convictions and set ~side the sentences. I would now like to give my reasons for so doing. In this case the appellant was arrested on the 7/4/81 in the National Developoent Corporation Building for the alleged offences. Trial oommenoed on the 14/5/81 before one .ll.,M.Sa.11ga, Sonier Magistrate. Apparently from the record on the sC1.id date of 14/5/81 a charge sheet containinS onlyone cbunt was filed. I do underscore filed because as I Will show later the charge was not read to the appellant. The charge which ia dnted 30/4,/81 reads: 11 STi'.TELmNT OF THE OFFENCE PJ.'Id.SOUATING _A PUBLIC OF.nCER contrary to sections 100(2) a.nd 35 of the Penal Code, Cap.16. PtRTICU'Li\RS OF OFFENCE JUJ.\11'. ID.RJ-J-m.i Ht.SSAN, on or a.bout the 10th day of Naroh, 1981, 1n the City of Dar ee Snl~e.m, falsely represented himself to one MUSTAPHA MKULO, the Director of PJ.axming and Finance in the National Development Corporation, to be a security officer employed· by the department of National Security 1fLn the President's Office, and assumed to investigate alleged improper business transactions by employees of Dru.ce(T) LiDlited, 2/••• - 2 - 2.n ex-Lon!.'i1.o Cqmpany vested in the National Development Corporation11 When the trial om:imenccd/.~4/5/81 the magistrute didn't read the charge to the ~ppellant 8.11.d no plea was tnken at all. After 14/5/81 there followed tl:drteen mentions on different cbtes before di:ffer·ent magi- strates and prosecutors. The last mention toolc place bctore one· Alhaji H.M.Om.1.ri, Senior District I&"\gistra.te on the· 14/7/01 and the case wns tilted for hearing on the 19/8/82. On the said 19/8/82 the onse came :f~ .heo.r:Lns" before H,.}ll.N .Kingaru., District Magi~te~· The· proseou.tor on the Republic I a aide w2.s one Rioha.rd from the Anti oorX'\11ftion Bquad,i~ The flocuaed/a.ppelliult Wl;),s µeeaiJ.t. The . prosecutor is recorded to have said: "I hnve tw6·witnesses todo.y11 - · The court opened the prosecution case and recorded ae ·follows: .... 11 PHOSiilCUTION CMJJ~ OPENS •• • J ' The accused hns been remind~tl of the ohargd and his plea remains uncha.nged 11 The leiirtled masistmte o.ppi- . rently didnt go through the preceedin~ pages of the record because had ho done so he could have found out tbnt'the ch'?.rge ho.d·never c.t ~ one moment been read over and explained to the appellant so as to plaoe the• ie·arned I!lflgistrate inn position to say "The accused hns been reminded of tbe charge o.nd his plea remains unohanged 11 ." No charge had ·been read over to h8>d been . the appellant ~nd no plea / ·· to.ken since the oOIJt1enoement of prooeediii&s in court on the 14.5.81. The trial mo.gistrate after so reminding tl1e appellant went on to hear the evidence of two proeeoution• witnesses. After the two J?i7G l:ad given ·their evidence the prosecution applied for an adjournment. The~apylication was granted e.nd a hearing do.ta was set on 11.10.02. On the sc.id 11.10.82.the prosecutor is reoord8d to 11.ave app.. .., lied to withc1rnw the old charge and to aul)sti tute a fresh ohe.rae tlleretor -in the following words: J'Nb witnesses todo.y and I pro.y to e-.mend and 0.11d produce a new chorge. 11 Leave wc.s granted. It wo.s at this stage that· ·the learned moaiatrate read over and explnined the charge to the nppellant who pleaded not guilty. I have already shown the statements of the offences of every oount above· and I think we do not need the pnrticulo.rs of the offences at this juncture. Here it would suffice to say thnt the charge sheet oontnined four counts, apparently, the fourth count was cancelled and is now the subject raa:tter of appeal in ground five of the pe'tition of appeal. After the s2.id 11.10.82 the cnse went through n period of another four mentions - 3 - to 21.12.82 when it wo.s set down for hearing on the ,.5.1.03. On the 5.1.83 three prosecution witnesses, PW3, PY/4 and PW5 gave evidence. The_riJa.tte·r was a.gain adjourned to 3.2.03·when IW6 gFJ.ve evidence. There- after it was adjourned to a further hearing ·0n 17/2/83. He/;l.i'inS could not talce place until 2/6/83 due to nGnattendance of prosecution witne- sses after another period of four adjournmente. On the 2.6.133 'PW7 gave evidence and the cnse was adjournedugniri twice before it Walj heard·again on the 15.o.o,- when l'\78 gave evidencee After the 15.B.83 the case went through another period of five !:lent.ions 'before 1 t wns hGC'.rd o.gain on the .1 .12~of when PV/9 go.ve his evidence and the pro!eoution closed its oaee1 The matter wns o.f·l;er 'that ncljourned to 22.12.e:; for ue:fenoe. On the 22.12.03 the co.se wi,,s adjourned to· -5,1.04, It ie worth to _note tl10,t on the 22.12. 83 the appellant is recorded to have sn1,1: 11 My witness is not available today" On the 5.1,04 whenthQ case -OarJo up a.:30.i11 tor defence the r:iagietr.::.te a.cljourned th~ oo.se . .to to 9. 1. 84 "for· w~i,n'li of prosecution. 11 I do not l;now wh.'1. t he me~t because the recort\ is clea.r thnt the mr..gietrate, proseoutor, oourt'. · cl0rk and the accuaec.1 were all present. 011 the 9.l.84 tbe oaee was aeail:1 acljourneD. to 5.3.84 anc1 the appel'.\.nnt a{~r\il'l is reooJl!de<l to bflve said~ 11 · _ , 1ir,. - witness is riot e.vo.ilabc by todr,y~ On _the -5. 3. 84 tho co. se. wo.a age.in r.i.d j ournecl to 6/3/8.4 ~ On the ·6/3/64 the a.ppellont gave his statement, unsworn statement. :Oefore 6ivin8 the s·tntement the· mn.3i0tra. te enterec.1 on reoorcl ._ the f:ollowins sentenoes, llThe accused has been remi11ded .of the charge and his rights under section 206 of Cep,20. !Che o.ocused has opted to give en unaworn evidroe~ ' There -ie-howeTer no re;cor<l ns to whether tho appellant at this juncture indicated tha.t he 118.d c1ropped his request for de:f'e11.08 w:Ltneesos~ The record as shown nbove cler..rly indicates thnt twioe before the hearinB ~cl ~ . of his staternent ho/ requestcc1;<the attenuanoe of his witness, - The record is silent as to wl1ether his request wns considered, It 1$ alao not very clenr when the lea.rned m::'.gistrp.te says that ilthe 6.ooused h.'lS ·~een remin- ded •••••••••• his ri5hts unc10r section 206 of C2.p,20 11 whether he also told the appellant whether he had any witnesses to call and the appellant replied that he bad no witness - is not clear. I ho.ve no doubt that had the me,gintrnte so o,dvised the appellant, there would de:fini tely be an QU0\1Qr on the record from the appellant nnd especially muoh so in :tais 4/••••• - 4 - case in which we are nware that the nppellant hac1 already intim.ated _pall that he wanted tolhis witness. At the most the record could have shown that the appellnnt had changed his mind o..nd no more dicl he wish to call his witnesses. In ribsonce of any wo~ from.the magistrate on the record I feel I r.1.m constrained to _believe the app~llant who, When ar@ling bis appcnl1 ndded another ground th.et the trial magistrate. failed to 5ive 11:i.m nn opportunity to aall his de:f'enoe witnesses. On the foroGoing pt.Bes I have tried to recapitulate in a nutshell what transpired Juring the trial in the District Court. Gl~rin« on.the Eµ-rora reoord, as shown n.bove, there are threg very grave 1:· committed by- the trial maaistratc, (i) failure nt. the 001lll:ienoe1.1ijnt of the O~\S8 to truce a plea (ii) i'nilure to aclvise the accused/appelltutt thnt he- oould, as of rigg_t, recall the witnesses who testified befora the time· of the subatitut ion of the Oh.."rge a.nd (iii) f'o.ilure to givo the appellant opportunity to call hie <lcfenoe witness~s. There ie another error, a. fourth error, that the trial court convicted the acouseu in the towth count which was apparently cnncel:ed. During the hearing of this nppenl I lot the parties C\rgue their ~ppeo.l. The appellant GS usµal started_nnd Mr. Ohizo 1 state attorney for the l1epublic, the l1espondent,followed. The appellE.\nt pointed out one thing in reply which I think is important that he never .inqo~oed him-·. self to Amir Yusufu, J!,73 ns the Republic wants to maintain it. I will come to the point later. After argumant·of both p..~rties I soueht opinion from the learned state attomioy in respect of the three errors Whiob I have pointed above. I thought it wns neoosso.ry to l:rin8 to his attention the s~id errors beonuse he never.argued let alone mentioning them. As to error (i), that is failure to ta.lee n plea the learned state attorney submitted that from the general practice he presumed that the charge was read over to the appellant. He conceded that the taoord does not ebow it. He went on to say probably it wo.s not reod to the appellant whioh _he noted to be a procedural irre,:3'U].arity but mnintained that the irre- gularity did not projuclioe the appellant beoa.use the appellant knew why he was arrested. In order to reconcile the St,'.te Attorney's reasoning and the facts of the cnse as are on the record I wnnted to lmow from the attorney if in the circUI:lsto.nces of the cnse whether he could exclude the possibility thd the appellant Tilny as well ho.ve thought he was being arrested on allegations of corruption~. The learned state attorney said he could not exclude the possibility but again mintained that the appe- ll2nd wns not eobnrassed in this case. In fact the trial magistrate h:unsel:f' got confused and sCJ.id in l:is jud('.sement tlmt the appellant demanded ' 5/...... - 5 - Corruption shs.2000/-. How about the nppell~nti Let me now first dwell on the m~gistrnte 's i'c,ilure to take a plea. With nll due respect 1 J: have been i.moble to be in agreement with the leap-ied state attol'iley's reasoninS. i have been unable to accept the_Ol."g,.unent ·toot because general praotioe requ:i,res it that on the commencement o! the trial· a chorse muat be read to the accused therefore it o~n be p.i-e.eumed _that this clw.r5e wns read. This oouztt 0lUl1'1ot be a sub&O~iber to that pr~poeit1on ~r p.teai,wp~1on. ?hat the trial maeiatra.te reo.<3. or did not reed the ohc-,rge to the "ppe.llont ie o. question of t'o.ot to be p:;-oved like any other i'not. 1'o oom, tho;-► for to the oonol'-1.Pion thtl.t the trial ma"istrate, from tbe ~e~e:-c.1 . practice, must luwe read the oharl:e is erroneous espGo:1.o.lly woh so, this being 11 praesuznptionee holilill1a vel fnoti". Ii. oono2,usion oJ' nn inforenoe that the magistrate reacl tl~e ohr.rf$e e.na took the l)lee. at the ootll'.ilenoement of the trial must-be drawn trom faote proved or admitted . to be -true but 11ot merely from th.e esene;r~l praotioe. We have no e\\fh to.otora on record to make _such a oono'.l.usion. The pre$umption OM tber- fore_ not stand nnd the leorned state o.t·forney oonoe4od th.0.t probe,lf the ohargc waa not read • .From the rooord wb1oh is before me I find it as a faot that the obarge was not read ond explnined to the a.pp~llant/o.ooused and no pJ,p wo.s t6lcen :from him. ~e reoord, handwritten (;\nd typewritten is silent• The failure to take the appellant 1 s plea is in oontrei.vent1cm to se,t,on 203 of the Crimino.l Prooedure Code, here:l.nnfter, the c0ae,whioh mand~tol'fJI states: 11 203(:i.) The substance of the 2l1iar£Se §lla1;. b~ §.tnted to the 0.0_9U;B.c.d ,.pe,r.@.Oll by the ooury, and he shall,~~ a~ke~.whetheI 11! a.di;a,ts or denies the ~;:Yi~ 9.~ tho ~!IA." (underscoring mine) •. Fnilure to comply wit~ section 203(1) of the Cod~, that ·1s failw.,e to take a plea nullities proceedings. Authorities to that ef!eat are nume~ rous. In _S_t_e!:?,l}.en s/,o S1mbilo. V.R. 1971 II.C.D. n. 433; Eli IC:i.nd;r, J had this to suy "Like a-m.y other. cn:ses, this case too wns tried Without plea being taken. It is well established law todate that ±tno plea is taken before the trial coLll'.llences, such trial would· · be null. and void. The import of the full bench decision• ~~. this court in the case of Akbero.li Y/oJ.iL1ohamed Damji V, Reginam. 2 T .L.n.., p.1 37 is th2. t before trial coO!llences, the presiding 6/,. •••• ,_ - 6 - rnngistrate raust take tlrn plea of the accused even takmi if his plea had been/on tne previous days by the same or different magistrates. This may sound too technical and unreolistic ~here the accused's plea was taken before the date of his trie.l, but that is the law now". In this case at hand the first moi3istrn.te who presided on 14.5.81 and many other IiUl.gistro.tes who r.1ent:Loned this case riaht down to the trial magistre.te who ett'l.rted hearing witnesses on the 19/0/82, none ot th.em took a plea :from the pcxn,ised. Ae af-o:roment:l.,oned thG ti'i~ ~etrate on the 19.6.82 nseUJI1ed, like the learned state ettorn.9y -wai1.tecl u.e to aa&WitJ that his predeoessore rend the charge to the aooused and took his plea~ That ia why he recorded - 11 The e.coused hns been reminded of the oharse ~d hie plea. ·remains unohr.mged, 11 Such r. situa.tion occured in the oaae of ' .... ~a.ud*, ·v R Ul7l· IICD r.~52. At the trin.l no ploo. wns taken. The •a1atn\1le simply noted that: "Accused ret1incled of the 0111.l.rge oncl plea" T}ie trial was also held to be·a nullity. I.think I am·boundto hold that the proceedings e.nd the resultant oon'Y'iotions 1n the lower oourt in this oo.so are null Md void. I dont ~-.· . ~il'lk I have to discuss the araument thot the appellant wo.e not embw:-aseed ae the Republic would maintain, Let.me now move to the second error, ·error(ii~ that the ma~strate tsiled·to comply with the provision of seotion 209(1) ot the Code in that he failed to advise the accused of the risht to reoe.ll witness~s who testified before the charge was substituted.· On J3'3ekin8 th.e .'.state atto1- ney1 e opiniEn on this·point the state attorney said that the aooused did not e.eeert hie rights_ H~ o.lso eubtlittoc1 that the error wasA,rooed~l · irregula.rity and would not nullify. t:he proceedings in. .-~he · circumstances of th1s··oaee. I o.m afraid to quote tho provisions of seotion 209(1) of the C0 de fearinB that this judgement may be too lona but·r f~el I o.zn oons- . ·trained to do so in order to show why I reject the atto:l:"ney'e op:Lnion. I 'will cite it and shorten my comments • 11 . 209-(1) Where at any atege of the trial, it appears to the cou.rt thnt the oha.r88 is defe- ctive, either in substance or form, the court may make such order for the altezration of the charee either by way of a.m:andment of the oharge or by the substitution or addition of e new charge as the court thinks necessary to meet the circu- mst~nces of .the cnse unless, haVing regard to ·the 7/. •·•·• 7 . ~ri ts of the case 1 -c,h-., required ar.;endments cannot be rr.~de uithout injustice and all anendt!ento r.;~de un.:ler the provi.cions of t:1is cection ohall bE> nade upon m!Ch tert1s as to t~·.e court s:.u:.11 aeer.i juzt: Provicled that, w:iere a. charge is altered as aforeoaid, the court 0;1all thereupon caU upon ti.1e accuoed )!>arson io plead to the altarGd chare;e: J?rovi,qr3d f 1..nirthcr t:.-i.at, t~q,e~ __cl.1ar11e is altered un&er this subsection, t~e &ccuoed r.1ay cfomand that the witne- ~es or anz of thera ~'3 recalled a.,~ ~iv,,;, ·their evidanc~ a frosh or be f~~-c!oGs-e.,:tQ.r.:.i,,nad bY, t:iG, ac.cu~eq or his advocate. an~,-in such last mentioned eve,1t, the ,rosecution cball have3 the rie;ht to re-e1te.r.:ine any such ui tness on matters arising ou~~ of ouch fi,1rther cross-e:;ramin:,rtion" {Jnd,}:rN3coring raine) with all i-lJJ aforer:1sntioned on cona·::ruct6r of the abov-a proviso 1 D.al./respect in -total disa3reement t1i th my baimed broti.1er' s opinion that tha accu.Ged/ e.ppaU.ant in this caac fail~d to fOGert !1is rieht to have F./1 and Pif2 recalled and that the r.ie.gia-trate 's Iailurc to advise the accuoed does not nullify tI~e proceedingc. In . thio case it t,1as the duty of the trial magicitr:ate to 'advise the av1x~ilant of his right to have at,y of the t,-,o witneoses ·,·.rho ~1-'.i.d already t;iven evidence reoallad. It • ' • . . . . ' ~' • . • . ......... f' ~ was only upon ouch· adv-ice or •infornation t:1at tho appellant could assert his rigiit . ,. . ' . .~ ◄~. -. to l:-ave t,;;,~ · ;Ii t~~cises recalled_ 9r not and t:1e record ~ i' ' ; .... • .., "< .. ~ • • ..... ~ .s;-;.ould shoe·/ that- t;1e .proviao iG GO com;;ili~d. l:/~ti}• J.~n this caGe, as ~ .. ~ ,. '1 .. it uould i.J"J in any ·other- cao.a,. t~1e :failura bf ti1e: · learned magistrate to comply 0ith th~ pro'f"i.Gion~ of o~c·,:.ion 209(1) of the Code, cspeci- , '( • • .._ I ~ • , •, • • I • 1 ' - • "!- ally the undcrlitred ·"!,-01:"ti&n --ci:b"6ve/rehd"eis .,/·i!-ie ·prO"e·e~aifrgi~null and void. ···ii6:tI~oX'iti~s'-'to·,th::t eff~~t .. ~ ':. o:"" ·,, • n~m;rou(bui ·~n 6rd~~;.~~- _)... .• ......: ...... e;e ,t .. ~~--~ .. ,:·..:,'!r;·1 .. -<r".) ....~ to keep "t1y-pr·om1.1fe"tti.z.t· ·r Ghould ·n~"t '.lengthen ti.1i"a'-jUd'tfeti0nr~1-i- WC•---·~~· would g~:tq·cre ·i~..;;~i{e::-ifre-' jLrdgel:lGJt- "<if iSi'syri-/ l- 1 ;_;_1, ~l!C ! . in~- L~3.P~-·J'~tm.:t · ._,. .' . , _ ·; . •· Ji, •~:,-J_;.·:·. _ "''-1 :;·!t, .'.. l .\r-:-: Crysoatoll k{l~el<a·-V H .l97G L •. ~.·.f'.n.54_. In th~. cited caoca i3isy$ 1,•J ,.said-: .. ',, ... · 0 / ':, I ' 11 ~::.:o·aev',7f, -the case~ ~n.;:!h,ich it ~· ~1.:. , ~ ,I dt ! ;~ , ha,:; b6en' £1-;!ir that the. oiili.s~ion t~r .., ' inform ·t~i0 i,ccus,ff of -·tI1oir' ·ri.~ht 1 ·:c · .::. to ·ree~ll t:1ec0 11itnaoses who·,had already· . :. .testiffod at tho :Ut:19 of,1the.,Qubstitu~~ ·· _, .,tion.ou: :::.,:i(mdcient,.of the,charge-04lli~. 0 ·· fies ti1e •con~1icti~n:.ate fogio~, · ~~d th~ ... • ~ • .,t. : -- .;. ~ .'"" _,, I • : .lal!I,,is so -clclll'_-3.:1~· ·thie•r~iao,~applied:.in · • . a recont. ~as~ -9~ ~umadhnni I"M~~yi,~h,ehe, ... and ,.be! ~i:!S~reca~a, V Republic, Criminal "· . i1pp0al Ilo.-<'.1,0 of i97G(Dar· ~s ·sa1iam Regist~J~ ...... ~ ~·'" c-------, . . , n - V - -- unreportad)' in ;,·rhich my foarned brother Sarnatta, A3.J. found that altZ1oue;h the evidence a8'ainst _th.a ap11ellants ;1a.s -11 iairly incrj,minatins-" • the omission by _th~, trial° court to adv~se the appe- · · llanto of -tt-:oir rii3ht· un&~r it10 ~ocond proviso '- . to section_ 209.( l). of ·. the Cri~ioal Procedure Code -~ .. •. . .·. . i1&a fatal to ·tho oonvictionG 11 - .- Hav~-ng. oaid .oo Siaya, _J" }pa:;rt -or.. to ·--aaii~re the conviction null and void ao l .d.id in thi£1r•case. After concl11din5 my d;GCUSl!lion",'.ori''eirt-dr(ii) may l no~. coma to . ~h,o trial .ma5iotret~ is e~z;~r .qi,i-),r.; the.t:;i~'· t\I~~- fll&~ia·tratiaa . ~~ . . .. ..~~ ~- ; ~. c~ -. , .. . f&i_~ure to ,eivia the:.,a15pGllent_ tho ;Op),)OX't·unity to call l'lio (,fafctl\O.Q . wi tnesoos. 'i'h3 apprill~n-( ~!cl .not raisr, this in his wri ttan petition .. -· 1; o?. ~~p~~ but whan he we.a . ~~-"~ ::iis tima to argUG :,is e.pp$Al th1:,,ar,Jpo• llant .rGised- the point and as ~ i c9nca~n;ad crirninQJ. procedure tltka :- court aUoi·1Gd the appelb.nt to pre0111.tJ.t ,r-ifo point. In hio argument the appallant said th.at the trial Da&iaJ;r~t~ •adjourntd tbct c.uae twtce tor 11i1Jl. ,_, ,., .to. . call {, . his ui tniaoa.as. • :fa ~aid -~ he ~-,antGd to call one. Ra3&bu ' Uwaiowala t1ho · iht'foduced him to ~J~. _;]};sa111r1are the said Ll~3abu . ~Maise.la is racoi-decl to be . .l-'.~1eaa,:'fa: and the sterta. e.ttorn~y oaid r.waisela, Othl3rwise it iEi not in dioputa t~1c:t th/";1 perGon ~o a aeouri ty ·officer from the rfotioria.l Security ~"01;c,;;--o. Ti1e accuAad elcio a.rguad tllat he . -.- :;'\. -~':·-.- :-.•. : . wanted to call on-a r~ril~Qlo ·;,1hosG. o~con,d: name -h.;> '~~e_G n_ot:_.l"~mnbiir1 ~~la said h>'lila!~ab id tho 0:11~ whp.\ll~i'1Gd him to inwiit~ p;~~-;~·d ~{tb c;ations. 'i'he oa!d I-'ttd:'1ai,h1e ~.,o~ltG 111th thG l?rl'l11>id'1nts office es a eacuri ty ~an. .!han ha looked for th0m he ;ras told that Rajabu hwaiswala @ Laswala wa up country on sefe.ri and t~'lllt I-~t'lilak6lla ·had gona abrom.o, The lenrnGd ot:r~e attorney in hio whole J?l~aoonte.tlon did no~ touch ·Jmythi,ag aboui the ot1i.ssion of ti1e :;rial court to aoool'd 1-e app~Uant th.a oppotunirty to hlw~ his defence t:ritneoaao called. I tGel l am duty bound to deal ·,1i th it o recapitulation As already .shoi.rrn in my / of th~ proce@dine;s in tltG ;)istrict Court the appellant twice to1c1 th0 cot.U't that his l1itneGS 11as not available. '2he court, !"10·.1~v~r, "1ent .on to hear th0 defence ota.toment on 6/3/34, e1no. the record is silGnt .::.& to the position of the defence witness as was req_u.:?st.ed by ·be appellant. '.Chere is no evidence on record that the maGintrate did i®ue summons to have the def3nce witnesses caUEJd. On record it seso::; the court failed to give 9/•••• f) - ,au the nece.scary help to have -;;;1c appeUant 's -:.·1itness13s called and there a~e·no reasonG eiven on tne record~ Sec~ion 200 io very cl0ar;_ it reads: ' . . . ••••oeoooo•eeoooeeoc,oo ♦ oeeeoeo•••••o•e•o•• .•.. o.,i. ....... and the court ohall ask him { the acc;.tsed) ·:,1h0ti1oir ha ha,; any witnesses to e:m.cina or other evidence t~ odduce in his defence, and tha court shall then hear -cha accuoecl and his ,'liiilGLJSeo -ruid otbor evidence if ~ny. (2) It the acctUJed pe:rr~on states that be has i-:ii tneos to call but that thay O:ra not pre... s~nt i.i court and the court is s.::itiafiad that the t.boGnce of ::me i.1 1.1i tneos •Y is not due to any fQult or n,~cJl.ect of the accuood p1areon, and that there _is li.Hcelihoocl t:1nt tnay could,· it prGoent, eive material evidence on behalf of the accused - pGrson, the court may adjourn tha trial and iaaue process or t~.k~ oti1~r oteJ;>S to compell tba atte ... nctance · of such i'ii tnasa1?s. 11 lri this caoe th.a mogiatrc.te ~djouirnad twice i':l·.Jfore the app«lllant gaye hiG defence ond t'lt1en he h ·,::.td :.1i:. d-3:Zeince on 5,3.84 it seams on record tha court ort its own motion closed th~ defence oaae and set a datG for judgein~nt. ! think the.ii ;:Teis :·rton~ and pr.ajudtcia.1 and in contra- v~ntion to eeo~ion 2.05 of the Code. 1t could be arr:rued that the court found t:1at ·the wi tneases hed no "uiat Jria.l 0vi&ence on behalf of the 1 accused per~on" as anviGa~ad under .socUon 2{)&(2) of ihe Code. In ~ . -- -- .........---.---.- --·-·-·----·............ .... Nz-ong-osel~o a/o hwangalezi V ;.{ 196'7 ;:-;cu n. -260 C.rroos, J.hold. tllat :_,.,,....,, ,_,.,.,.,,,...,.,.,, /'A rnagiat:rrate ho.d a c.ll.G1;.r duty to call do.fanca wi tn<3S01'3S only where h,3 maries n :1findin~ that tne evid,-mce of th0 t·1i tniacs is esGanti~l to a juot decioioni of the caoo 11 Jhera no such finding is L.1ade em appeUante court zhould not disturb his deciaion unloss it io S:ltiofil3d thet lw, ,,rao 11plainly w:rong"). ln thiG ·case the mae;iatr,,,te did not r.1e.i:-::,, such a finding. Hot,:ri thsta- ndin~ t!1at hia r.tada no such finding I ar,i still of tb.-3 firm vie111 that he was pl&inly wrone · iY~ceuse the rnne;iotratc failed to see t;1at the 10J ••••• - 10 -' witnesses were to Give very mnt0i-ial evidenci:~ on behalf of the th.e appelia.nt;; The appellant to.il.1 the court th-'lt indeed his .S'3X'Vices ~rith t:10 ll:ctionc:.l Jecurity W.ff,'3 tcr;:iinate:1 but on hear- ine; alleg~tions of theft at ii:~1.Vi.. fror.i his ,formar informer he took steps to inform the 1"rasidont 's Offico, hio former offic.e,and he was given fiat to c7,o ahead to invGstigote. :.ie th13n ,iront and raet E'fi."lli. sccuri ty officer, najabu f,i·raiswi,la, who later on introduced him to ?&19 as a national security office~. P:19 told the court that ind0cd Rajabu L1aise.la '© r-:asw~la, th0 then l✓;tava ,focuri ty Oft'icor, introduced the a_i;,pella.nt to tlir.1, P:/9 o~id that the a11-,101lant was introduced as a _M.tionol oecurity offic<;1r. :1ajabu in this case ,..,as a VGry matodal wi ineao to tall us how did the ap:r,alle.nt intJIO(luco himself to him (l.bjabu) becauee the:i; ia v-ary important to dGtormine tha question whether t~o appellant so personified hiocelf as alleged or u·hether Raja.bu put on hia own airo and flavour. The accused also refuted in his reply to the state attorney's aubmisoion that ha intro- duced hioaalt to i.11llir Yuauf'u Ibrahim, Pi/:J ac; an officer frot1 the anti• corruption squad .• lndeod the Sl\id Ar.tir, P:13·, told tha court th.at the appiallant waa id0ntified ·to him by the fil'lancbl controller riG an officar frQm the knti-Corruption a~uad. 1t ;1as v~ry aasenti~l ~ the court in ordar. . to come to a. just deoia.ion of thia case to. c~u/a1s a witness and find out how did the ap:r_:ieUant i1.1-troduce himsolf to the said financial controlle~ oa who introduded the appallai:lt to the financial controller and how. Oth~rwiee l fiQd the trial courtb failure to call ouch witnesoea · was fatal. Beai:!es no effort wao mi:lde to call the officer who is alle- ged to have given the appellnnt a go au3ad into the inveati5ations. This one 1·1as a very raa.terial witn~sa to ohow i1hethar tho app~llant i·raa on his own frolic or not. AU the witnesoas wG-re ireoidento of and workers in Dar es 3alaam. Thoir .:lddraGseo arc clear and tha add M,1ilakale who alle~edl1 froc the etateoent of tha appellant 5avo him a so ah~ad could have been -identified by the appell~nt because his nama wae not spaciti- cally mentioned at the trial,. In ~foray 11(1971,b1.-::,u•Jl!,~70,. the magistrate rejected the ~ccused's npr,lication for witnass•:.s on the sround that the a.ddressias of the witnesses c;iven by tha aocuzod wore vague. The Republic in that case declined to support the conviction on tho ~round that the magiotro.te refused to call ti:ro t'li tnenses t·1hose cvidenca :tao material to th0 defenco. J01iv0ring his juc\~ament in !,fora' s case quoted above 9 Onyiuk~, J., seid; 11 The ••••• cn~i3tratoo ......... should have 5iv~n the a~pellant nn opportunity to call ):\is witni3soeo who WQI'O very mat:?rial to b.e defence nnJ. their evidence could 11/•••• affect the verdict.o••ooo•Unaer Section 205"(2} of t~1e Criminal Procedure Code it war.; the duty of the court to help the appellant by adjourning the trial and issuing process to compel! the at_tendance -of such witnesses. Th~ reaoona ·that the acldr.asoes was vague was unconvincing. 1"he app~llunt could h~ve been ask,ad to act Ma pointer ili ree;r.-.rd to b'i tnesses ••••••••••• •• It -"as wrong for taa learned magiotrate to proceed to jude;ement it1i thout listenin5 to such important defence 1,;,i tneoses. 11 On this very r.mterial ground alono thio court t1ould be anti tled to quash tha convictions. Ho ,'litness on th.a l~ecord did Positively aff'irn1 that the appoU.ant in p-3rson did introduce to hirnoelf. U.very witn~sa 011 the iGsu~ of-_ introduction oimp.lLy oaya t!1a appall.ant ,tao iutroduc~ to me by so and ao but thG said so ~nol so 1:rere not called to toll the court how,·did·, the appl;)Uant introclluce hirnsial:i? to thorn., Failuro to call ouch important idtneorz13s wont to :tbe root of t;1a m0rits. In thiG case it io worth to nota thG rernu!m of P'.19. i:ie a.nid "•0•0000001 a.Uowed the accus0d to continue with hio inveatigQtions, The find report ~:ras thuo cor.1pU.r3d e.:.e1 the oiri~:inal was tah:en by ·cha ~ccuo.od. j)uplica.ie woo sant to Temake [>ol!c~ 3tation 3nd the triplicate had recained in thG fi!G concorned. Ths work done w~o obviouely a~tiafactory a~d ~G beliav0d th~t th~ accusad h'llO the roall. pJr.son conc-->rnad. 11 It the appaUant was acting on e." frolic o! his own could the r~port i:>e oent to the police ota'tiono I hesitate. 'Jrh,·nra must be aorne grain o:f truth in thG a10JlX:lHant 'o atatement that he waa iiVlln a ISO - ahead by hio f'om-Jr otfice. lt coundJJ. vory probablo. Again in cro-•· ss-eJCarnin.etion Pd9 ii1ad tbis to Gay: aid ei ve -transport to tha accused. 11 :;J.::, J,3 ,1Gra ,;i vine; r.1oney to our o,;-m Security OJ?f icGr ;,.rho ~;as accompanied by the accusod on his duties •• o•••••••• .. M J;;·,e accu::.i.:d .sei.ia h~ cl.id not want to use company's veticlec h0 denanded aooo cash money no as to use tajdG ruic, other trans- porte~s hence.ooo•o•demo.nded shs.3000/- but only shs. 2000/- ~1as given as a trap. 1t 12 - ~rom the said evidence it seeus indeed th~ accus&d was I askin~ O . -~~nejr in orq~r .to par.for.:-i the'obyiously satisfaetory' job. In ~is judgemenJ _t1~e mltl1:;ist'!"~te Gj,id th.0 appellant d~mandad corru•-· pt:i.ont shs.2000/.:. )t do not_ know whclre did he get evidence. . . ., i'l1e last ·etro·r :Jhi6h l ·called tne fourth error is the ou~~tanee of gfound five ~f appeal. The appeUant says the learned trial Cia,gistrate $I't'l3d fo CC)n.victing' him on count four which was withdrawn by the prosecutor·j; The record is confusin~. '.K'hese is nowh~r0 on the reco:rd where an applice:Hon to wi thdra.w was mad<.3 but at" the snmetime -the tocord _i3hotiS that count four was conceliled at what stage .:i.nd by whom .io rtot clc8'.r~ As point0d out by the. learned state attorney the accuc:)d could not be convicted in .; '1:.,t f'ow- if the count t,raG withdrawn~ i-.s aforesaid tha actual position . . io c~nfusing in respect of count four and the benefit .of the confu- sion goes to the accused. ·:.Jrti.ataver ·the case tha conviction1 v'ould not stand for the roa..sona I have 5iven above. "Jhile I was discussing the r,,.::r:;istratG 1 ~ f'aU.ure to call do.fence witnesses I have in passing gone into t~c merits of tha ~attQr and fouhd that the appellant 1 s story that he ~-1.::.a carrying ·invostigations with the permission of his former ofJtice might be probabla. ln e.dd- ition to that the appellant was convicted and sentenced to an trnpriso- nt1ent term on the l.S.,04:. Z.-:le hdo otayGd in j~U for one YQV. I would in tha circum.atanceo order no retrial after declaring tha procaedings null and void. For ;the reaGon I have e!.van e.bov0. X aUo!:red this a.ppaal I quashed the convic~ions ancl set aoidra th0 s0r.t,3nces. kn ordtar,for the relGMe of the appallant wao made unless he w~s lawfully hold under another order. /~ (!I.J,I,Il::A!rTE) \ ~ ' ~ . A.G.JU~G,!} ~1t/6/0S< P.ee.d on 25.6.36 Coram: r~itatte, ig.J. 'lor bppellant: J:..bs-ant For P.ospondont: Chiza 3/Attoonay for lli>public;70,,J·/J!I.!;~ ·(~·., .... J .• J,•1r1 'I·,mi;,) \,J ... .,i..CJ ~:'rw-J,V _,,.. / . AGoJ:O;)Glli 213/6/85 •..--