19770706 TZHC Mwanza 1

IN THE HIGH CO RT OF' TNZMU — ,'LNZI PP.: .:';T:JTiR13DlCT1ON HIGh CiJt. C I PPtA NO. 66 OF 1977. (Original Crimiaal Case 1o. "Alof 1976 of the Distc.ct Court o±wanza District at Mwaiza - Before J. M. M;eyunge, isq.; District agiatrote) M .ANGJ I<JDJU... . ........ 0000 - e. .............................. LPP..LL_NT versus T Hi, ii!PUBLIC. .......... . . o •. . • ........ .............a,.. a JUi)GIvLlNT LUGAKiNG1, J.: My brother who a.irnit...... is appeal to h ring was minded tc dismiss it summarily but 'er f:ne technical irz'egularity. . The oppellant was first charget on three counts., one., each of uttering a f1se document, attempting to obtain g)oCis y false petences and destroying. e'viaence, c/as 342 and 337, 302 1 and. 109.? respectively, of the Penal Cod. The tri1.c,ommenoed on 12 Jyiy,.. 1976 when four prosecution witnesses gave evidence, it was tnefl.aujOLU'fled to 13 and again to 16 July, 1976 when . -. a new charge sheet was subatituted, The new charge sheet inc1eied the' abov. ..thr:e counts and one more count of assault occasioning aotLal o441.y, harm c/s 241 of .te Pa ;]. ,Code. .lt4ough new, pleas. wer.. t':ken the api1nt was no' ml i C Os ems right to recall the DiOC tian witne.ss.for cross- exao:.:iH,ion. The trjal procaeded.an the..sppe1iart wassub.scq,uently obnv,icted ca all four, counts as charged. The onpea..was theraf.oe admitted tp consider the affect

of the irregularity on. the proceJings. . . .. . . . Briefly, on 16 June, 1976 he appellant presented a Loc1 Purchase Order (LPO) at the ,gip P:;tr1 Depot at Mwenza South purport.into..come. from the 'ater Department, Luj'ariza, for 9000 litres of super petrol worth Shs. 22,000/=. The Depa'tmor't had not p•urcnased patrl from tIaDpot before. Suspicions were therefore aeouaed and the De.pot.Ma.nager (P42), to 'hom 'the LPO was started to question the a,ppeilont a i.httle more closely. Presently, to appellant 'grabbed the LPO, tor,e it.' up and started chewing it vh'il' ouneing away. He 'az .chaseJ and a.pprhnded andlatCr handed to'the police with pieces of the LPO. .t the Police Station he snatcned the p1..c s of the LPO from p/c Yotha (Pi5) end. again stuffed them into ,h.s mcuth. It was aliegd that inan effort o retrieve them Pc/ Yotham assaulted and wouniad .,by. the appellant. It, is on these facts that the four counts were b sed .1 will go back to consi..er the question po i in the first paragraph b fore I go into 60 the merits of the appeal, , Whenever it is soght -to altej e.chrge in tne cours . 3 : of,: ar,ia1 the p.èovisions of s.209 o.i tiale •1Code becoine relvant. It provides, thtem alia, for the accus.d,tc plead to the new charge and pro;ides further. th.'tthe accused may den: 'ni the recall of the witnesses or any of them to 't'stify afresh or to be i'Lrteer cross

- examined. As a matter of , estab1ihed practioC the bblietion is upon the court to irew -the attention of the ccused to this ri.-h-t. The idea beind, in .i nut.shell, -'is that thh acueI should not be put to a disadvantage by any altere -tion in 'the chaxe. But in 'the insbon' cse it is doubtful whether the ap.eJ.]ant. was...., put to any disadvntage. The e.lteration that was affected was 'the addit±on, of a ne'w count. The pruvious ones were n.ot altered materially. They were simply rarrang6d and the velue of the patrol was state1 but this was apparent even before the el't.rotion. In other words, as regards the first three c,ounts, the charge rej : . i,ned the sarn• and lid not reqeira new evidence from either side. With 'rai:rd to the additiohal c:unt nc'eviJcice had ba,en- 'dd:uced prior to the :li.ortioh. The only evidence thereorcame from PW5 after the alteration :n the Cppelant cross — exminei thIs' witnes'. in th,se circumstances 1 r.ro unwilling to say that the oppellant was prejudiced in any way. I held view that wrien an alteration in the charge does not ncessitrth' iifferant evidence the omission to evise the accused of the right to 'ihe.va: the' w'itnesses recalled is a thuroole. irregularity on appeal. In this case,therefore, the irregularity was not -'ta-1 to' - the -' proceedings. /2. —: - 2' - Leaving that aside, :'h-..t hapened in this case calls to aioL

another important aspect of s4209. Lnr-this sition on ilteration the form of an amatiment y sbsitution or the addition of a new charge. What seema to be cOnstantly. overlooked is that the charge mast • -epear to the court to be defective in zubstince or form before the ci -: tion can be maie. f- defect-,il sue onei is iefct.. o10 an intca and therefore a dai'ect in to,e i:.: croatian ..reletnd to tne offence onorgoLi. This may inciudafaiidre f:';h nf€rtan to disclose, any. coi:o.ce or the. every day misvika of ci wrong provisions. L defect in term, on the other hand, includes the in 'dequocy cihothe charge, even if peao ;ct in substnce. Hence, if it bcr..nsres in evidence that the accas. was chargad with a lesser aIx once I an tne circums tances warranted or was not charged with another o±±'eiceo:'th wich he cc ill-i additionally o• charged, that would be a j.,afact in .drm. From His we can argee that enenier the defect be one of sub.tance. or ±'orrn the alteration to be effected, whether by cienclment, substitotion or acld'ition, mlls't be an alteration onich clires some defect in the existiuI odorize, it cannot include the subsI:botion -• or addition of a charge wo.ioh is zdtogother strange to ta-a availo,ble evidence. If it is intended to co the latter I think the best wa:' 1S for the prosecutor to withdror the. old charge under 06(a) of the Crininal Procedurb Co,Le and to

subat: tae a fresh charge incorporating:. .oatever additional counts he may contemplate. The obligation is upon the court, not the prosecutor, to. a': lisfy itself about the defectivenbss -T the charged In doing so it mOf reface ic. entertain alterations that' are not .irected at Sny defect. In the inst - ni case there was, to my mind,, no defect in the first. charge. The ex,isii.ng counts were perfectly laid and described'. -' On the other hand, the &vVenco adduced did not in anyway suggest that the appellant assaul ted Onyone in the course of committing the offences charged. I would then think that theclteretion to .di the f. erth count was note vail-able unler s.209 of the Code. It,ias an unj.i:st alteration and sholi hava Leon ref used. The appeal as such is substantially without merits. The appellant went to the Depot in broad daylight, presented the LPO in broad day light and tore it up and chewed it in broad daylight'.. I haveno reason to disbelieve the witnesses on this matt:er for th.'t was an issui fx'. the r trial court. The appellant's argothent is that the piec.e.s of a' ocr: were - ' - not proved to have been An LPO or that it came from the 'ater ,u.opertment. That begs. 'the ques.on, .iL:ne of these could be proved because he turned the LPO into food'. . in any case there were. eye - witnesses to the document . befora its xestructio.n.. Ih.ve already said that 1

hce no reesun to doubt tJt,sir credibility. And were the ilocumeot of a different or innocen.ta nature the appeilant woaidoept have risked eating it. In the enant, 'I have no doubt about the appelant!s guilt on the first three counts. I will sustain his convictions an... the sentences thereon. It is noted, in the fourth count, that PC 'c±dam .(P45) 'sustaiiei a sprain in the me'ia.Oerpal joint:ofthe left thumb. Ho alleged that ha was assaulted by the appellant while,trying to regain piecca of the LPO from him. I cm inclinOd 'to think: that the role of the .appeldeht on tnis.occasion was exaggerated.a.s w.as'the charge. 1 should think th' 't the appeHnt gave a more pausibie 'account when he said that t e ask:ari. qot injured when he forced his fngurs into the appellant's molith to retrieve the pieces of paper. It would have been naive to:expect the appeila.::.t to submit to such an operation. The injury was obviously concomitant to the askari's efforts. in view of this and what I soil ealier about the injstioe of the alteration of thc charge, I allow the appal on the ±'..rth count. The ccinviction.and sentainceare accordingly set aside. . The final position'is"Inat thisappal has failed in is entirety on thefirs't, second and third cuents. It has been allowl en'tia'ely on the fourth count. In view of ada mode of sentencing these resilts do not effect the aggregate punishment irnpoead on the 'app!,lcnt. M1iNZi. K.S K LdhLKINCIR 6TH JULY, 1977 JUiG