Bulyi v. R. Crim. App. 319-A-71; sl/10/71; Kwikima Ag. J.

 Bulyi v. R. Crim. App. 319-A-71; sl/10/71; Kwikima Ag. J.

Appellant was convicted of robbery. From the transcript of the lower court, it was not recorded whether or not the appellant was told of his right to call witnesses as required by Section 206(1) of the Criminal Procedure Code.

Held: (1) “The right for one of defend oneself goes to the root of justice and faire trial. The right to be heard means and included the right to be told that one may be heard if one so desires, that one may confront and controvert those alleging against him and most important, that one would be informed that one may summon evidence and witnesses one one’s behalf. That is the reason d’etre for Section 206(1) of the Criminal Procedure Code and other similar provisions strewn across the spectrum of the law. And since it is impossible to tell from the recorded whether the appellant was given information and opportunity to call witnesses in pursuance of Section 206 (1) of the Criminal Procedure Code it cannot be said either that he received a trial which would be seen to be affair, or that his trial proceeded according to the letter and spirit of the law. The omission to record whether such information and opportunity was given to the appellant cannot be cured under section 346 of the Criminal Procedure Code since it goes to the root question whether the omission has occasioned failure of justice.” [Citing Musa Kiumbe v. R. (1967) H. C. D. 202. (2) “It is hereby ordered that the trial magistrate and others suggested in the course of this ruling be made to certify by way of affidavit that the trial was conducted made to certify by way of affidavit that the trial was conducted made to certify by way of affidavit that the trial was conducted in accordance with Section 206(1) of the Criminal Procedure Code.”