19910218 TZHC Dar es Salaam

Cu{JRT i~ARTIAL C.k • .1-l.r<P.1!,l-iL N0o7/90 MT 03,l.,;!>GT K,-.LING1i. FIUBLIB o o ••••• , ••••••• APPELLANT vers-e.s jU...,G.t A.l)VOCATE G.i!j).\j£i<;,L ••••••••••••••••••• IL;:.,P0NDENT JU~Gh~~T OF THE CUURT - MKWl-1.W~ AG. J., ,- This is an appeal arising from the decision of a General Court- Hartial. The appeL.ant, NT 0351 Sgt. KJ.1.LINGJ;. FIDELIS, was convicted on two counts of stealing c/s 51 of the Code of Service Dislipline and was sentenced to serve a term of imprisonment of five years. Dissatisfied with th~t decision he now appeals to this court - itt its capacity as the Court Martial Appeal Cour~ under the National\ '' Defence Act, 1966 - (Act No. 26 of 1966). i-1.t the commencement of the hecJ.ring of tliis· appeal, we found it. necessary .and thus allowed Dr. Lamwai who app;e&.red for the appell.ant, . to have the case argued regarding whether the·General Court - Mattial which. tried and convicted the appellan't had the power to do so being presided by the president and the members of the court - martial I '· who W-ere not sworn as required by law.:· Dr. Lamwai abandoned the other grounds as there was io he~d to proce~d with them as this ground· alone was sufficient to dispose off the ~ppeal. The learned counsel submitted that the entire proc0edings in the trial were 1;1. , · taken nullity in as far as there is no record of/ the members ha:VingLoath. / ~. The provisions of Section 112 of the Code/of Service Discpline provides as follows:- ! ' 11 C.112 - (1) [1.t ev,,ry court - murti~l an oath shall be admini- stered to each of the following p~rson~:- \ , (a) the president and other memb~rs 6f th~ court-marti&lo (b) the~Judge Adv6cate (c) Court reporters; (d) interpretors; and ( e) witness es, In the manner end in the forms prescribed in Defence forces .Regulutions. 11 ; We are sutisfied that the triul of this case started without first complying with the mundlttory provisions of section 112(1J of the Code of l::lervice DisdfllinE::. vie .... re, therefore, su.tisfied th.;;.t their non-compli~nce vitiated the trial rendering it a nullit~• oeeoo/2. we are fortified in~this view in the light of the decisions of the Court of Appeal of Tanzania in i·,GLGI .tv'JOITtt V. REPUBLIC - CRIMINAL Rl-'i>Ei\1 NO. 60 of 1986 and in P. 2004 .c;DGil KIBASA AND 4 0'I'HBH.S V. REPUBLIC - CRIMINAL APPBi~L NU. 95 0F 1987. The Court of Hppeal in both of these ~ases declared the trials a nullity for non-compliance of the swearing ~revisions. As , in the present Cc..se the president and his four members presided over the General Court-Martial without taking oath as re~uired by law ~· the whole proceedings that led to the convictions of the appellant were a nullity. Accordingly we dcclure the : trial a nullity, quash the convictions of the appellant and set &side t~e seJ1tence. !he 'ppellant · is j \,. . \ ' to be releasi;;d from custody forthwith unless, he 'is otlierwise lawfully held. • As the trial has been declared a nullity it accordingly follows that he remains a servant of the forces us if nothing has happened. The ' pros0cution is ofcourse at liberty to institute fresh proceedings against· th~ appellant b8fore a prop~rly constituted court if it so wishes. DAT.8D AT DAH $ bALr1.i1.N this 18th day of F8bru&ry, 1991. ~·-~~~~ Y1.;HYH R~lMA JUDGE I It