Joseph s/o Masanya vs Republic (Criminal Appeal No. 77 of 2009) [2014] TZCA 2219 (26 February 2014)

I l . I IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: MSOFFE, J.A., KIMARO,IJ.A., And MJASIRI, J.A.) I CRIMINAL APPEAL NO.77 OF 2009 • ' • I I JOSEPH S/O MASAGANYA ................ 1 ,, ••••••••••••••••••••••••• APPELLANT VERSUS 1 THE REPUBLIC ................................. ) ...................... RESPONDENT I I (Appeal from the Judgement of the High Court I MJASIRI, J.A of Tanzania at Tabora) I . ' (Kadur1, J.) I Dated the 3 rd Novel her, 2008 in r Criminal Appeal No.I 11s of 2005 i! ·························· JUDGMENT OF TE COURT This appeal arises from the decision of the High Court of Tanzania 11 (Kaduri, J.) dismissing the appeal againJt the conviction and sentence of II the District Court at Nzega. , I The appellant Joseph Masaganya was charged and convicted of 80 II counts of fraudulent fa!se accounting dontrary to section 317 (a) of the ' I' 1 . I

I if I Penal Code, and stealing by public servat contrary to sections 270 and I i 265 of the Penal Code, Cap 16 of the Laws of Tanzania. He was sentenced to three years imprisonment on each coJnt of fraudlent false accounting l1 1 and seven (7) years imprisonment on te offence of stealing by public I I servant. The sentences were to run concurrently. He was also ordered to pay compensation to the respective owers. The appellant has already I served the sentence. Briefly the background to this case is as follows. The appellant was I employed by the District Court of Nzegas an accounts clerk. He was alleged to have falsified the various adcounts he was. handling, which included, payments from the Treasury or beneficiaries in Probate cind II Administration causes filed in the Nzega · District Court as well as salaries for court Employees. His appeal to the Hf gh Court was unsuccessful hence his second appeal to this Court. The apellant preferred four grounds of appeal which are reproduced as under:

1. That the learned High Courtt 1 Judge erred ini law and fact in I I failure to notice that the first , rial court denied me the rinhts to I I !/' legal representation and/or to be informed of the rights to legal 2 ! . ! . i I

representation advocate.· j! II I Ii or the rights to j! the accused to get another I That the learned High Court I udge erred in law in failure to notice that the defence case Jas not considered by the 1 st trial I . ,I I court as well as the appellate c0urt. · That the High Court Judge erred in law in failure to notice that there was no handwriting ex1rt report to mpare with the handwritinf1 of myself (accu,) on the che(/ues and other I I documents. 4. That the High. Court Judge erled in law in failure to notice that I the accused was not the only signatory in the office. I , At the hearing of the appeal, the ippellant appear~d in person and was unrepresented and the respondent 1 Republic had the services of Ms. Jane Mandago, learned State Attorney. 3

ji I Mr. Masaganya did not have much t0 say and he asked the Court to I adopt his memorandum of appeal as part jof his submission. He opted to 11 I let Ms. Mandago make her submissions fir~~- 1 I I I: When Ms. Mandago rose to make hr submissions,· she firmly stated I that she did not oppose the appeal. Sh6 submitted that her reason for I doing so was that the appellant was not/ properly arraigned. She stated I that the charge against the appellant was 1substituted six (6) times. All the times the charge was substituted, it was hot read over to the appellant as i required by the law and no plea was take. I I I She submitted that when the chJrge was substituted for the 6 th time, although the charge contained 80 /counts, only the 80 th count was Ii ' read over to the appellant. He was therefore not asked to plead in respect of the remaining 79 counts. This means Jhat the whole proceedings before I I! the District Court and the High Court was a nullity. She relied on the case I! I . of ThuwayAkonaayV Republic 1987 ~LR 92. She also made reference to section 228 of the Criminal procedure ~ct Cap 20, R.E 2002. She asked 11 the Court to declare the proceedings bJfore the High Court and District I Court, a nullity, and to quash the · proceedings and set aside the i j 4 I I

I 11 :1 I sentencesand the compensation order. Ste did not press for retrial given the fact that the appellant has already served the sentence meted out by the District Court. In relation to the 80 th count Ms. Mandago further submitted that I even though the appellant was given a chance to enter a plea on that count,no sufficient evidence was adduce, by the prosecution to prove it. She therefore conceded that there was no evidence to sustain it. i I, On his part the appellant in rejoind 1 er did not have anything to say. He stated that he agreed with the submis · ions made by Ms. Mandago. We on our part are inclined to agree with the learned State Attorney. Ii . I As correctly observed by her, the charge against the appellant was substituted six (6) times as reflected on pages 35, 37, 42, 49, 70, 86 and I 100 of the proceedings. With regards ti the last substituted charge only the 80 th count was read over to the apprllant. A plea was therefore only entered in respect of the 80 th count. 5

It is evident from the record that section 228(1) 1 of the Criminal ' Procedure Act was not complied with. It is a requirement under the said section that the substance of the charge 1 shall be stated to the accused I I I person by the court who shall be called upbn to plead. Section 228(1) provides as under:- I I "The substance of the charge shall be stated to the accused person by the court, knd he shall be asked [I I . , whether he admits or den/es the truth of the I charge." I: The main issue for consideration is hether or notthe omission to call upon an accused person to plead to a niw, altered or stlbstituted charge I . ji renders a trial a nullity. I !: I' In ThuwayAkonaay VRepublic ]987 TLR 92, CAT, it was held as lj Ii : follows:- 6

' I I! I " It is mandatory for a plea to a new or a11ered charge to be taken from an; accused persorr, as I otherwise the trial becomes a 'ullity. " . I I See also AkbaraliDamji VR 2 TLR 137 w · ere it was stated thus:- ! "The arraignment of an ace 'Sed is not complete i until he has pleaded Where no plea is taken the I trial is a nullity. The omission is not an irregtJlarity which can be cured by sectioh 346 of the criminal , I I ' Procedure Code (now section 388 {1} of the Criminal-Procedure Act." Emphasis provided. I It is only the 80 th court which was rtead over the apJI)ellant, and aplea taken. However as submitted by Ms. Mahdago, no suffici~nt evidence was adduced in support of the charge. 7

• I In view of what we have stated he~einabove, we allow the appeal, I I quash the conviction and set aside the sen;tence imposed and the order for compensation. We do not think that the c/rcumstances of this case call for an order of retrial given the fact that the ppellant has already served the 11 I I sentence meted out by the District Courti and upheld by I the High Court. I We will therefore make no such order.- 1 1 /; Ii DATED at TABORA this 26 th day of/February, 2014., J. H. MSOFE JUSTICE OF APPEAL I l I N. P. KIMARO . I JUSTICE OF APPEAL I S. MJASIRI JUSTICE OF AIPPEAL i I certify that this is a true copy of trle original. ; P.W. BAry1PIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL ! I 8