njile lazima vs republic 2007 tzhc 270 4 july 2007

IN THE HIGH COURT OF TANZANIA AT TABORA.

APPELLATE JURISDICTION (Tabora Registry) MISC. (HC) CRIMINAL APPL. NO. 92 OF 2004 ORIGINAL CRIMINAL CASE NO. 20 OF 2003

OF THE DISTRICT COURT OF MEATU DISTRICT AT MEATU. BEFORE: N.M. KASERERO Esq; SENIOR DISTRICT

MAGISTRATE NJILE s/o LAZIMA.............................. APPELLANT (Original Accused) Versus THE REPUBLIC................................. RESPONDENT (Original Prosecutor) *

REVISIONAL ORDER 2nd July, 07 & 4th July, 07 MUJULIZI.J. The Applicant Nzile s/o Lazima was convicted by the Primary Court of Kimali in Meatu District of the offence l Robbery c/s 286 of the Penal Code, and sentenced to serve a term of 15 years imprisonment. On a close look at the proceedings of the lower court, I discovered that the appellant was first charged with the offence of stealing from person c/s "265 (a)" (269) of the same Penal code. That was on 26/8/2003. Then thereafter the prosecution presented its case, to the end, when the applicant was called to defend himself. On 22/09/2003, when the case was called for the defence, one policeman No. D.1748 PC. Livingstone prayed to substitute the charge against the applicant in the following words; (page 7 typed proceedings). " Naiomba Mahakama ipokee hati ya Mashitaka upya, kutokana na ushahidi ulivyo mshitakiwa anakabiliwa na shitaka la unyang'anyi wa kutumia nguvu chini ya F. 286 (1) sura ya 16. K.A." Then the Court recorded the following; "MAHAKAMA:- Hati ya Mashitaka inapokelewa chini ya F. 24 III M.C.A. No. 2/84 na mshitakiwa amesomewa shitaka naye anajibu:- 2 Mshitakiwa: Siyo kweli, MAHAKAMA: Mshitakiwa anaendelea kukana shitaka." Before I proceed further, I should state right on, that the charged offence of stealing from the person ought to have been contrary to section 269 of the Penal Code not 265(a) as stated by

the Primary Court, secondly the enabling provision for additions to or amendment of charges under the Third Schedule-Primary Court Criminal Procedure Code, section, 2, of the Magistrates Court Act, (Cap.11 R.E. 2002) is Rule 22 and not 24 as erroneously cited by the Primary court Magistrate. Rule 22 provides; "22. At any time before the accused person gives evidence at the trial, the court may amend a charge or add new offence to it, but where the court amends, or adds to a charge, the accused person may require any witness who has previously given evidence to be recalled and may put relevant question to such witness. " In my considered opinion this Rule must be read together with rule 31 which prescribes the manner, 3 conditions precedent and antecedent to reading of the charge to the accused. The construction of both rules is such that an accused person has to be informed of his rights under those Rules. The charge must be explained to him and where substituted his rights must be explained in full. From the record, part of which I have reproduced above, it is clear that the trial Court simply moved on as a matter of fact, without explaining to the accused that he was entitled to recall any of the witnesses who had already testified against him, when the substituted charge was read to him. But, what is even more disturbing, after the accused accused person had closed his

defence, the Court decided to call an additional witness on 22/09/2003 as a witness of the Court. However this was done before conviction. In my opinion the Court may only call a witness on its own as a witness of the Court pursuant to Rule 28, in order to obtain evidence relative to proper sentence or order. It can not do so in order to supplement the complainant's or the prosecution's case against the accused. 4 In doing so the court exposed itself to an error laying it bare to accusations of impartiality. In the premises, the Applicant was not granted a fair trial. Be as it may, the Applicant was convicted and sentenced to 15 years. Dissatisfied, he lodged appeal in the District Court at Meatu, which was admitted and given a number in the Register as Criminal Appeal No. 20/2003. That was on 23/10/2003 and the matter fixed for mention on 12/11/2003 in the absence of the Appellant. Then on 12/11/2003 the Court set the appeal for hearing on 2/1/2003 (that was in error. I believe the Court meant 2/1/2004). On 2/7/2004, the District Court, without prior notice to the Appellant Ruled thus; "This appeal was wrongly admitted because the appellant's Memorandum of appeal had no certificate o f the Prison officer to prove that the appellant was the one who wrote the Memorandum of appeal. 5 For that reason therefore, this appeal is struck out from our Register. Appeal struck out from

our Register." It is not clear from the record as to when the Applicant was first notified of that order of the District Court, striking out his appeal. But on the photocopy of the Ruling attached to the application before me, there seems to be an endorsement of a Prison Officer acknowledging receipt of the order on 17/3/2004. The Applicant seems to have believed that the above quoted ruling was a judgment and that it was delivered on 17.03.2004, and consequently filed the present application seeking for the leave of this Court to Appeal out of time. He was labouring under the mistaken belief that his appeal to the District Court had been dismissed, hence the need for a second appeal to this Court. When the matter was called for hearing in his absence, and in the presence of Mr. Rweyongeza, learned State Attorney for the Respondent Republic, I pointed out these technical errors and asked him as to what would be his position. 6 I have therefore put myself in the shoes of the District Court and moved to Revise the Proceedings of the Primary Court in Criminal Case No. 71/2003 and having done so, proceed to quash the proceedings, conviction of the Primary Court of Kimali, and set aside the sentence. The Applicant was not afforded a fair trial, and in view of the time he has already served term in prison, he should not be subjected to any further ordeal of a re- trial. In the foregoing premises he is hereby discharged. Consequently he should be released and set at liberty forthwith, unless is held in furtherance of other lawful custodial orders.

JUDGE 4/7/2007 Delivered in the presence of Mr. Rweyongeza, learned State Attorney for the Respondent Republic. A.K. MUJULIZI

JUDGE 4/7/2007 ORDER: DR. Transmit the release order to the Prison where the applicant is serving his term to ensure his immediate release. The record shows he has never been served^ with summons/notice of hearing since he file his application. From Malya Prison. 4/7/2007 9