19880129 TZHC Dar es Salaam
Non-compliance with section 23(1) of the Criminal Procedure Act is a fatal irregularity rendering the entire trial a nullity.
Source-derived case information.
- Citation
- 19880129 TZHC Dar es Salaam
- Parties
- Appellant: Justine Nyamilele; Respondent: The United Republic
- Court
- TZHC
- Jurisdiction
- Tanzania
- Judgment Date
- 29 January 1988
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- trial declared a nullity; proceedings quashed; fresh trial ordered
- Legal Topics
- Right to Fair Trial, Procedure at Close of Prosecution Case, Nullity of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justine Nyamilele
Appellant
The United Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether failure to comply with section 23(1) of the Criminal Procedure Act renders the trial a nullity
Ratio Decidendi
Non-compliance with section 23(1) of the Criminal Procedure Act is a fatal irregularity rendering the entire trial a nullity.
Court Disposition
trial declared a nullity; proceedings quashed; fresh trial ordered
Orders
- Lower court proceedings quashed
- Fresh trial to be held before a different magistrate
Full Case Text
Judgment text and source record
1 paragraphs
' ' <. r,r IN THE IDGII COURT OF TANZA1iIA AT DAR ES SALA.AM APPELLltTE JURISDICTION HIGH COlID.T CRIMINAL .APPEll.L NO. 165 OF 1937 ORIGIN.AL CRDUNAL CASE NO. 1167 OF 1986 OF TIIE DISTRICT COlID.T OF ILALA DISTRICT AT KISUTU versus TIIE UNITED REPUDLIC ••••••••• • ••••••••••••• .-•• RESPONDENT JUDGMENT ICTAND0 2 J. £]Justine Nyamilele, the appellant 9 .uG.s convicted of stealing a mo·tor vehicle· c/s 265 of the Penal Code in the c::: {) '.) .. ,. -f- Di.strict~ of Ilala at Kisutu (F.A.R.. Chillonji (ill[)o Ile is ,,\ aggTieved by the conviction and has appealed to this court., · lie is represenJced on appeal by Mr. Rutashobya Malingumu and Miss Khaday, State A·~torney, has appeared for the Republic. Without ·going into-the merits of the appeal, it is' clear that the proceedings in this case ,rnre irregular in one important respect Section 23 (1) of the Criminal Procedure Act provides that:- 11If at the close of the evidence in support of the charge, it is appears to the court that a case is made c:·gainst the accused. person sufficiently to requ.;i.re him to make a defence either in relation to the offence Hith which he is charged or in rela- tio~ to any other offence of Wtlich under the provisions of sections 312 - 321 inclusive of this Act be is liable to be convicJced,_ the Court shall ~1in explain the substanc0 of the charr5e to the ~'.::ed and in:forrn him of his right,, ~a) to give evidence whether or not on oath or a.:ffinnation 7 on hi:1 own lxihal:.':'; (b) to call witnesses in his defence; and shall ·.then ask the accused person or hie advocate, if it is int'.ended to e:::ercise any of the above rights and sha~. 11 record the answer. (under lining added). 11 ~e tria:. 1• magistrate did not comply 11i·iih these mandatory proviSions of t.he lawo The entire trial was accordingly a nullity and I sc, declare it hereo I quash the lower court proceedings in ·c:b.is case and diroct that a fresh trial be held before a differei it magistrate from the one ,rho tried the case the first timoo 0 ••• 0 /2 .,:) - 2 - It is so ordered. /J-/ ll(J~Co. _(L.A,.A,.KYANDO) JUDGE,. 29/1/1988 (