20101008 TZCA Mwanza2

.IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: KIMARO, J.A., LUANDA, J.A., And MANDIA, J.A.:) CRIMINAL APPEAL NO. 196 OF 2006 1. MWITA GISE @ JOSEPHAT................................. APPELLANT 2. MAIGE MWITA ....................................................APPELLANT VERSUS THE REPUBLIC ................................................ RESPONDENT (Appeal from the judgment of the High Court of Tanzania at. Mwanza) (Mlay, l.) dated 17th April, 2006 · in Criminal Appeals Nos. 12· and 73 of 2001 •••••••••••••••••• RULING OF THE COURT th th 4 October & 8 October, 2010 KIMARO ,J.A.:- In the District Court of Myvanza at Mwanza the two appellants were convicted of the offence oft robbery with violence contrary to sections 285 and 286 ofthe Penal Code [CAP 16, R.E. 2002]. Each of the appellant was sentenced to thirty years imprisonment. Their appeal to the High Court of Tanzania was not successful. 1 Still aggrieved the appellants have filed this appeal. The first appellant has five grounds of appeal and the second one six·grounds. At the hearing of the appeal the appellants appeared in person and · the respondent Republic was represented by Mr. David z. Kakwaya, learned State Attorney. Both appellants raised in their memoranda of appeal a question of procedural irregularity in respect of their trial. They contended that there was no compliance with the provisions of section 231 () of the Criminal Procedure Act, 1985[CAP 20 R.E.2002]. .Before they"gave their defence, the trial court did not address them on the requirements of section 231 of CAP. 20. The appellants being laymen, not represented, and the ground of appeal being one of law, the learned State Attorney was required to be the first to address the Court on this ground. Taking us to the record of appeal ( ·-1 at page 12, the learned State Attorney said that at the closure of the '··~-"' prosecution case, the trial court made a ruling that the appellants .had a case to answer. However, it did not inform the appellants about the procedure that they could use in giving their defence as provided for by the provision of section 231 of CAP 20. He said although the appellants did not take the witness box on that day but on a subsequent day, even on the 2 . ·----:;::; ,, .l day the appellants gave th~ir defence, they were not informed about the mode they could use in giving their defence. Citing the case of Ndamashule Ndoshi Vs R CA Criminal Appeal . . . . . No. 120 of 2005 (Unreported), he prayed that the proceedings sta.rting from ih December 1998, the day when the appellants took their defence without the trial court informing them of the available options for making ' their d~fence, b~ nullified. ! . <) The. learned State Attorney submitted correctly, ttiat the record of appeal does not show th~t the appellants were made aware of the available options for making their defence as provided for under section 231 of CAP 20. The trial court made a ruling on 29th September, 1998 that the appellai:,t had a case to answer. On that day the appellants did not make their defence. The appellants made their defence on ih Decemb~r, I {.J · 1998, after several adjournments. However, there is nothing on the record of appeal to show that the appellants were informed of the available options given in section 231; CAP 20 for making their defences. In the case of Ndamashule (supra), the trial court did not inform the appellant of the available options for making his defence. The Court after quoting verbatim the provisions of section 231(1) of CAP 20 said:- 3 I . ''Section 231 of the Act contains a fundamental right of an accused person: the right to be heard before they are Judged. It directs that a magistrate must inform an accused person that they have a right to make a defence or choose not to make one . in relation to the offence charged or any other alternative offence for which the court could under the law convict. Not only is an accused entitled · to give evidence on their defence but also to call witnesses to testify in their behalf. So, the section is an elaboration of all important maxim - audi alterem partem and that no one should be condemned unheard." '.J In this case the record is silent as to whether the appellants were informed of their right as given in the provisions of section 231 of CAP 20. This was definitely a failure on the part of the trial magistrate to comply with a mandatory provision of the Law. Section 53(2) of the Interpretation Act, [CAP 1 R.E.2002] provides in clear terms that:- "Where in a written law the word ''shall'1s used in 4