NAOCHE OLE MBILE v REPUBLIC 1993 TLR 253 (CA)

 NAOCHE OLE MBILE v REPUBLIC 1993 TLR 253 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Ramadhani JJA and Lubuva JJA

CRIMINAL APPEAL NO. 129 OF 1993 E

8 November, 1993

(From the conviction of the High Court of Tanzania at Arusha, Munuo, J.) F

Flynote

Criminal Practice and Procedure - Accused convicted without having been arraigned

- Whether proper - Section 228 of the Criminal Procedure Code.

Criminal Practice and Procedure - Appeals - Powers of Appeal Court where trial was

a nullity - Whether Court of G Appeal can order re-trial - Rule 36 of the Court of

Appeal Rules 1979.

-Headnote

The appellant was convicted by the Economic Crime Court in absentia. In fact, the

entire H proceedings were conducted in the complete absence of the appellant from

the court room, i.e. he was convicted without having been arraigned.

Held: (i) One of the fundamental principles of our criminal justice is that at the

beginning of a criminal trial the accused must be arraigned, i.e. the Court has to put

the charge or charges to him I and require him to plead;

(ii) Non-compliance with the requirement of arraignment of an accused

person renders the trial a nullity;

1993 TLR p254

A (iii) The Court of Appeal has discretion under Rule 36 of the Court of

Appeal Rules to order retrial.

Case Information

Appeal allowed.

No case referred to.

B Mrs. Sumari, for Republic.

[zJDz]Judgment

Kisanga, J.A., delivered the following considered judgment of the court:

C The appellant was convicted by the Economic Crimes Court (Munuo J (Mrs)) for

cattle theft contrary to s 56(1) and s 59(2) of the Economic and Organized Crime

Control Act 13 of 1984, read together with para 12(1) of the First Schedule to that

Act, and was sentenced to seven years' imprisonment. He has now appealed. In this

Court and also in the Court below he was D unrepresented. Mrs Sumari, learned

State Attorney, appeared before us for the respondent Republic.

Mrs Sumari did not seek to support appellant's conviction. She submitted that the

conviction was bad E because the appellant was given no opportunity to answer the

charge or to defend himself to it. With respect to the learned State Attorney, we

entirely agree.

The entire proceedings were conducted in the complete absence of the appellant from

the court F room. The case was called on for hearing on two different dates. The

appellant was absent on both occasions. On the second occasion the Court, after

endorsing on the file that the accused was absent and at large, proceeded to conduct

what was really a mockery of a trial by reading out the charges and recording pleas

thereto. The record reads as follows:

G `Charge read over in absentia and plea likewise in the following words:

1st Count: Not true

2nd Count: Not true

H Entered as a plea of Not Guilty in the absence of the accused persons' (sic).

The so called trial proceeded to conclusion and the appellant was convicted on the

first count.

One of the fundamental principles of our criminal justice is that at the beginning of a

criminal trial the I accused must be arraigned. That is to say the Court has to put the

charge or charges to him

1993 TLR p255

KISANGA JA

and require him to plead thereto. In this case the appellant was charged with an

economic offence, A and the procedure for such offence is provided for under the

Economic and Organized Crime Control Act 13 of 1984. Upon a glance through that

Act it seems that the Act makes no provision for arraignment of the accused before

the Economic Court. However, s 28 of the Act provides in effect B that where the

Act is silent, the procedure under the Criminal Procedure Act shall apply.

That section says:

`28 Except as is provided in this part to the contrary, the procedure for

arraignment and for the hearing and C determination of cases under this Act shall be

in accordance with the provisions of the Criminal Procedure Code.'

This then brings us to s 228 of the Criminal Procedure Act which makes provision for

arraignment of an accused person. The relevant parts of that section provide as

follows: D

`228(1) The substances of the charge shall be stated to the accused person by

the Court and he shall be asked whether he admits or denies the truth of the charge.

E

(2)

(3) If the accused person does not admit the truth of the charge the Court shall

proceed to hear the case as hereinafter provided - ' F

Then s 33 of the Economic and Organized Crime Control Act takes over from there

and provides inter alia, that:

`33 Where the accused person does not admit the truth of the information . . .

the Court shall enter a plea of not guilty G to that information. . . .'

Our construction of these provisions of the law is that the requirement of

arraignment of an accused person as embodied in those provisions is mandatory and

non-compliance therewith renders the H proceedings a nullity. The rationale for

this view is not difficult to find; it is that the accused must know the offence with

which he is charged and for which he is being tried. A person should not be put in

jeopardy of a conviction when he is unaware of the source of the jeopardy itself. The

necessary corollary that follows from this is that the accused must be physically

present and the I charge must be put

1993 TLR p256

KISANGA JA

A to him in person. Otherwise the whole principle of arraignment and the vital

purpose for which it is intended are rendered meaningless.

Now, the crucial question which arises is this: In the present case was the accused

arraigned? Since he was absent at the material time, to whom did the Court read out

the charges? And who B gave the answers thereto which constituted the pleas of

`Not Guilty' as recorded by the Court? Certainly the accused cannot be said to have

been arraigned. As amply demonstrated already, such non-compliance with the

requirement to arraign the accused rendered the purported trial a nullity.

C Mrs Sumari was also at pains to point out that the learned Trial Judge failed to

comply with the provisions of s 226(2) of the Criminal Procedure Act which provides

that:

`226(2) If the Court convicts the accused person in his absence it may set aside

such conviction, upon being D satisfied that his absence was from causes over which

he had no control, and that he had a probable defence on the merit.'

Learned Counsel was of the view that upon the appellant's arrest but before his

committal to prison, E it was open to the learned Trial Judge to proceed as provided

for in ss (2) above quoted, but she did not. We think differently. Our view is that that

subsection does not apply to a case like this where the trial was a nullity ab initio. For

the subsection envisages that if the Court is satisfied that the F accuse'ds absence was

justified, it may allow him to advance his defence on the merits of the case, and on

the basis of such evidence, and that of the Prosecution previously recorded, proceed

to give judgment. In other words the subsection empowers the Judge to re-open the

trial and continue the proceedings to a judgment. However, that would be untenable

here where there was really no trial at G all from the very beginning. There was

nothing for the Judge to reopen and continue.

Mrs Sumari referred us to s 37(4)(a) of the Economic and Organized Crime Control

Act 1984 as amended by Act 12 of 1987 which provides for the trial to proceed in the

absence of an accused H person. That subsection says:

`37(4)(a) Where a person admitted to bail absconds or fails to appear before

the Court before which he is required I to appear on a date fixed and conceals

himself so that a warrant of arrest may not be executed -

(a) the trial in respect of that person before such court shall

1993 TLR p257

KISANGA JA

continue irrespective of the stage of the trial when the accused

absconds, after sufficient efforts have been A made to trace him and compel his

attendance;'

We are satisfied that this provision is equally inapplicable to the present case. The

learned Trial Judge cannot properly have invoked it. First, the accused never jumped

bail, and indeed he was B never brought before the Court at any time. Second, since

the trial `shall continue' upon certain contingencies happening or being fulfilled, this

means that the provision applies only where the trial has already started. In the

instant case however the trial cannot have started where the accused was never

arraigned. C

Having found the purported trial to be a nullity, the question now is what is the next

step? Mrs Sumari submitted that this is a fit case for the Court to order a re-trial, a

discretion which is conferred on the Court by rule 36 of the Court of Appeal Rules.

Her reasons for that view are twofold. First the victim D of the theft is yet to recover

four of his stolen forty head of cattle. And secondly the appellant has so far served

only about two years out of the prison term of seven years awarded to him. We have

given thought to this submission, and we find no good reason for disagreeing. In

acceding to it we also take E into account that cattle theft is a serious offence which

sometimes is the source of inter-community clashes leading to tragic consequences.

We think that suspects of such offences should not be let off lightly.

In the result the appeal is allowed. The purported proceedings in the High Court are

set aside, with an F order that the appellant be tried before another judge. As the

appellant has been in prison for about two years, it is further directed that he be tried

as soon as is practicable.

1993 TLR p258

A