Cheko s/o Yahaya vs Republic (Criminal Appeal No. 179 of 2013) [2013] TZCA 2160 (26 September 2013)

.. / ·J<_· ,- f.JJ . IN THE COURT OF APPEAL OF TA"'ZANIA AT TABORA (CORAM: MBAROUK, J.A., MMILLA, J.A. And MMILLA, J.A.) CRIMINAL APPEAL NO. 179 OF 2013 CHEKO S/O YAHAYA ............................................... ~ ..................... APPELLANT VERSUS THE REPUBLIC .......................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Lukelelwa, J.) dated the 10 th day of December, 2012 in Criminal Session No. 90 of 2008 JUDGMENT OF THE COURT 23 rd & 26 th September, 2013 MMILLA, J.A.: Cheko s/o Yahaya (the appellant) and Leonard Peter were charged before the High Court of Tanzania at Tabora with murder contrary to section 196 of the Penal Code cap. 16 of the Revised _Edition, 2002. While Leonard Peter was found not guilty and acquitted, the appellant was to the contrary found guilty, convicted and sentenced to suffer death by hanging. He felt.aggrieved, hence this appeal. 1

~ Before us, the appellant is being represented by Mr. Kamaliza Kamoga Kayaga, learned advocate while Ms Jane Mandago, learned State Attorney is representing the respondent Rep~blic. She is opposing the appeal. The memorandum of appeal had ·raised two grounds; however at the commencement of hearing Mr. Kamaliza Kamoga Kayaga abandoned the second ground. Thus, the first ground ls the only one remaining. It alleges that there was no fair trial as the charge was not read over and explained to the appellant by the trial judge and the trial was a nullity. The gist of Mr. Kayaga's contention is· that although it is undisputed that the appellant's plea was taken during preliminary hearing which was conducted on 20.11.2009 in which Hon. Wambali, J presided (page 3 of the court record), the record is amply clear (page 10 - 11 of the court record) that the court did not read the charge to him on 4.12.2012 when the case was placed before Hon. Lukelelwa, J for trial, therefore that he was not called upon to plead. Mr. Kayaga has stated that on that day the appellant was merely asked if he had any objection to any of the assessors who were selected to assist the judge in the case, for which he said be had no objection. He submitted that the omission to read the charge to the 2

appellant at the commencement of trial violated the provisions of section f 275 (1) of the Criminal Procedure Act Cap. 20 of the Revised Edition, 2002 (the Act).· Mr. Kayaga has stressed that section 275 (1) of the said Act refer to pleading to information, and that it is under this provision that trial in the High Court begins, therefore that it was required to have been complied with before proceeding to let him comment on whether or not he had objection to any of the assessors in terms of section 283 of the Act. He said that since the appellant was not arraigned as required by section 275 (1) aforesaid, that was an incurable defect under section 388 of the same Act, adding that it cannot be claimed that the trial was fair. He cited the case of Mussa Mwaikunda v. Republic, Criminal Appeal No. 174 of 2006, CAT; Mbeya R~gistry (unreported) in which he said, the basics of fair trial were expressed. He has prayed this Court to declare . the proceedings before the High Court a nullity, paving way for the Court to quash the proceeding, set aside the sentence, and order a retrial. On her part, Ms Jane Mandago submitted that section 275 of the Act was complied with because the charge was read over and explained to the appellant on 20.11.2009, the day on which the case was placed before Wambali, J for preliminary hearing. She said, on that day, there was an interpreter to make sure that the appellant understood the charge. She is 3

I firm that though the charge was not rea~ over and explained to him on 9, 4:12.2012, she is of the view that it was a minor irregularity which did not go to the root of justice, thus curafle under section 388 of.the_ Act. She referred us to the case of Rojeli s/ o Kalegezi & others vs. Republic, Criminal Appeal No. 141 C/F 1 2 CF 143 of 2009, CAT, Tabora Registry (unreported) in which she said, he standard of a fair trial were I I expressed. On being asked whether or not preliminary hearing is part of a "trial" I . . Ms Jane was in the positive that it is. Also, her interpretation of section 192 I . I (5) of the Act is that it is supporting her view that it is one and the same thing. She has therefore requested this Coirt to dismiss the appeal for lack of merit. In a rejoinder, Mr. Kayaga has reald that a preliminary hearing is not part of the main trial; therefore that failure by the trial judge to comply with the mandatory provisions of sectiot 275 (1) of the Act was a fundamental irregularity, thus incurable u1der ,section 388 of that same Act. When asked to air his view in respect 9f the provisions of section 192 I (5) of the Act, Mr. Kayaga was clear that trne correct interpretation of that 4

..... · .... ·. ... . : · provision is that there are two things, a preliminary hearing on one part, • and a trial on the other. He maintained that these matters are separable. · The issue that calls for the determination by this Court is whether or not failure to read the charge at the commencement of the trial in a case constitutes unfair trial. The basics of a fair trial were clearly identified in the case of Mussa Mwaikunda v. Republic {supra), among others,· a case which relied on the case of Regina v. Henley (2005) NSWCCA 126a case from New South Wales Court of Appeal). On page 8 of the judgment ·in Mussa Mwaikunda's case, the Court identified the basic standar_ds of a fair trial to include the following:- "1. to understand the nature of a charge;· 2. to plead to the charge and to exercise the · right of challenge; 3. to understand the . nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence •charged; 4. to follow the course of the proceedings; 5

5. to understand the sub~tantial effect of any . . I . . evidence that may bel given in support of the prosecution; and
6. to . make a defence or to answer the charge." Given the circumstances of the present case, it is the first two grounds which learned counsel KayJga is saying were violated leading to an unfair trial. The co~tention is impliedly I that the appellant was not in a better pos,ition to understand , I the nature of a charge, also to exercise the ~ight to challenge it. I In view of the fact that Ms Jane MJndago says no prejudice was I occasioned to the appellant because the 9harge was read to the latter during preliminary hearing, we have felt it iimperative to begin exploring, I albeit briefly, the import of section 192 of the Act. I I There is no dispute that section 192 of the Act is a general I prescriptive provision, its main purpose being to accelerate the trial. It I provides for general guidelines for purposes of achieving that goal as I reflected under sub-sections (1), (2), and (3) thereof. We add that the plea which is taken during preliminary hearinb is merely for the purpose of 6

.... . . . . . - getting an over view of the trial which is otherwise yet to begin. This is ' partly reflected. under sub-section (5) to section 192 of the Act which, in our view shades light that preliminary hearing and trial are two distinct things. That section provides that:- "(5) Wherever possible~ the accused person shall be tried immediately after the preliminary hearing and if the case is to be adjourned due to the absence of witnesses or any other cause, n~thing in this section shall be construed as requiring the same judge or magistrate who held the preliminary hearing under this section to preside at the trial." [Emphasis provided] In our considered view, in as much as it says wherever possible, the accused person shall be tried immediately after the preliminary hearing, and adds at a later stage that nothing in this section shall be construed as requiring the same judge or magistrate who held the preliminary hearing under this section to preside at the trial, this sub-section distinguishes between preliminary hearing and trial. See the case of Amani Ramadhani Mgonja v. Republic, Criminal Appeal No. 219 of 2007, CAT, Arusha Registry(unreported). 7

Trial before the High Court is covered under Part VIII of the Act, • which comprises section 275 (1) thereof. This section refers to pleading to information. It provides that:- "(1) The accused person_to _be tried before the High Court upon an information shall be placed at the bar unfettered, unless the court shall see cause otherwise to order, and the information shall be read over to him by the Registrar or other officer of the court, and explained, if need be, by that officer or interpreted by the interpreter of the court and he shall be required to plead instantly thereto, unless, where the accused person is entitled to service of a copy of the information, he objects to the want of such service, and the court shall·find that he has not been duly served therewith." We are of the concerted view that it is under this provision that the trial begins as submitted by Mr. Kayaga because of the explicit of its content. Further instructions are under section 279 of the Act which stipulates that . accused's plea of "not guilty" shall, without further form, be deemed to _ have put himself upon his trial. That section states that:- 8

"Every accused person upon being arraigned upon any information by pleading generally thereto the plea of "not guilty" shall, without furtherfo"rm, be deemed to have put himself upon his trial." . . . . . . It is after these preliminaries that selection. of assessors follows as provided by section· 283 of the Act. In view of what we have said above, we find and hold that the trial judge was duty bound to read over and explain the charge to the appellant before he proceeded with trial. Ms Jane Mandago's contention that the appellant was not prejudiced for the charge to have not been read to him on 4.12.2012 when trial the commenced is not appealing at all in view of the fact section 275 (1) of the Act reproduced above is not cosmetic or rather superficial. Parliament intended that the court arraigns the accused person(s) before it proceeds with the trial. As already seen, this provision is couched in mandatory terms. Even, we fail to go along with Ms Jane Mandago when we consider that the preliminary hearing was conducted on 20.11.2009 when the said plea was taken and trial commenced on 4.12.2012, which was almost after three (3) years had elapsed. Suffice to say that to have not read that 9 f

charge to the appellant before commencing trial was a fatal error, and such omission was not curable under section 388-of the Act. For these reasons, we agree with Mr. Kayaga that the proceedings before the _High Court were a nullity. We according quash them and set aside the sentence. In its stead, we order a trial de novo. Appeal allowed. DATED at TABORA this 25 th day of September, 2013. M.S.MBAROUK JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL I certify that this is a true copy of the original. Z.AliMA DEPUTY REGISTRAR COURT OF APPEAL 10