sospeter petro vs republic 2006 tzhc 210 26 june 2006

IN THE HIGH COURT OF TANZANIA

AT BUKOBA

APPELLATE JURISDICTION (Bukoba Registry) CRIMINAL APPEAL NO. 28 OF 2004 (Originating from Bukoba District Court at Bukoba Criminal Case No. 372/2000) (Before: I.N.B. Bashemela, Esq. PDM) SOSPETER PETRO = = = = = = = = = = A P P E L l J i N T

VERSUS THE REPUBLIC =================================RESPONDENT

JUDGMENT LUANDA. J. Sospeter Petro (hereinafter referred to as the appellant) Lucas Marco and Charles Bernard were “charged” in the district court o f Bukoba at Bukoba with cattle theft C/S 268 o f the Penal Code. The appellant and Lucas Marco were convicted as charged. Each was sentenced to 5 years imprisonment. They were convicted on 19/6/2003. However, the appellant was convicted in absentia; Lucas Marco was present and he is not appealing. Charles Bernard was acquitted. The appellant started serving his sentence from 6/5/2004 as evidenced by Prison receipt No. 087430. In his notice o f intention to appeal, the appellant stated that that was the day he was convicted. Obviously that is not correct in view o f what I have stated earlier. The appellant was convicted on 19/6/2003. The question is whether the notice given on 6/5/2004 or any date thereafter was given in time. Section 361(a) o f the Criminal Procedure Act, Cap 20 provides:- 361. No appeal from any such findings, sentence or order as aforesaid shall be entertained unless the appellant - (a) Shall have been notice o f his intention to appeal within ten days from the date of the findings, sentence or order or in the case o f a sentence o f corporal punishment only, within three days o f the date o f such sentence; [Emphasise Mine) The above quoted section is very clear. The period o f ten days starts to run from the

date o f finding, sentence or order and not on the day one started serving sentence. So the notice o f intention to appeal was not given in time. The notice was given after 10 months and 17 days. Since the notice was not given in time, the appeal is incompetent. The same is struck out. But there is one fundamental flaw in the proceedings. Initially the appellant and Lucas Marco were the first to be charged with the offence. The charge was read over and explained to these two. The two were called to plead to the charge. They pleaded not guilty. The plea o f not guilty was entered. That was on 17/10/2000. On 19/1/2001 a new charge sheet was substituted in lieu o f the first one. This is what the record reads, I reproduce:- “ 19/1/2001 Coram: I.N.B. Bashemela - PDM PP: Kibonah B/C: Bijabika Accd: Present PP: I pray to substitute a fresh charge by adding another accused. CR T: Charge read over and explained to the accused person who is asked to plea to the charge; It is not true. E.P.N.G. I.N.B. Bashemela - PDM 19/1/2001” The one added was Charles Bernard. And he is the one who pleaded not guilty to the charge.The appellant and Lucas Marco were not called to plead to the new charge. And by the way to substitute is to replace (See Oxford Advanced Learners Dictionary 4th Edition). So long as the new charge was read over and explained to Charles Bernard, the trial magistrate is taken to have allowed the substitution o f that charge to replace the previous one. Then the new charge out to have been read over to the appellant and Lucas Marco. That was not done. However, on 23/5/2001 when the case came for hearing, the record shows this: “23/5/2001 Coram: I.N.B. Bashemela, PDM PP: Kibonah B/C: Bijabika Accd: Present PP: I have got one witness today.

PROSECUTION CASE OPENS 1st A ccd: I still deny the charge 2nd A ccd: I still deny the charge 3rd A ccd: I still deny the charge I.N.B. Bashemela, PDM 23/5/2001” Then the trial commenced. The issue is whether the new charge sheet was read out to the appellant and Lucas Marco. We have seen on the day the new charge sheet was substituted, it was not read over and explained to the appellant and Lucas Marco. And what is recorded on 23/5/2001 does not amount to reading the charge and take their pleas as is provided for under S. 228(1) o f the CPA, Cap 20. The section reads: 228(1) The substance o f the charge shall be stated to the accused person by the court, and shall be asked whether he admits or denies the truth o f the charge. In fact the phrase “I still deny” presupposes that he is maintaining his previous plea o f not guilty. But there is none. As the charge was not read over and explained to the appellant and Lucas Marco and take their pleas, the entire proceedings is a nullity. Exercising revisional powers o f this court as they provided for under S. 373 o f the CPA. Cap 20 the proceedings are quashed and sentence set aside. The Republic are at liberty to bring fresh charge against the appellant and Lucas Marco. In case o f conviction, the portion o f sentence they have served should be taken into account. Order accordingly. B.M. Luanda

JUDGE Judgment read out in the presence o f the appellant and Mr. Vitalis - State Attorney.

ATBUKOBA 26/6/2006