Merali & Others v. Republic. Crim. Apps. 580, 599 & 613-D-70; 12/3/71; EACA Duffus P. Law and Mustafa JJ. A.

Merali & Others v. Republic. Crim. Apps. 580, 599 & 613-D-70; 12/3/71; EACA Duffus P. Law and Mustafa JJ. A.

The appellants were convicted by a Magistrate’s Court of stealing goods in transit. One appeal to the High Court of Tanzania a retrial was ordered, the learned judge (Saidi J.) stating, inter alia, “The complaints raised by  the defence the goods as stolen property and the question of ownership of the goods. There is some justification in these complaints, though these errors are not too serious to affect the trial in the degree (Sic) by the learned counsel for the appellants”. The appellants appealed to the Court of Appeal for East Africa against the order for retrial.

Held: (1)”It is clear that he original trial was neither illegal nor defective. It is well settled that an order for a retrial is not justified unless the original trial was defective or illegal. A retrial causing prejudice to the accused (see Ahmed Ali Dharamshi Sumar v. R. (1964) E. A. 481 and Fatehali Manji v. R. (1966) E. A. 343). We are of the opinion that an order for a re-trial in this case was not justified and we accordingly set it aside.” (2) “In dealing with the first appeal the learned Judge did not re-hear and re-adjudicate as was his obligation in law: he briefly referred.

to the somewhat complicated nature of the case and ordered a re-trial. Had he re-heard and re-considered the evidence we are satisfied he would no doubt have come to the conclusion that the first accused was guilty as charged.” (3) “Having set aside the order for re-trial, there are several alternatives open. We can set the appellants free or order the appeal to be re-heard or deal with the appeal on its merits as the learned Judge ought to have done. This court has the same powers in dealing with this appeal as the High Court of Tanzania. [Mustafa J. then quoted section 3 (2) of the Appellate Jurisdiction Ordinance Cap. 451] ………. We propose to take the unusual course of stepping into the shows of the first appellate court and deal with the appeal on its merits”. (4) Appeal of 1^st and 3^rd appellants allowed. Appeal of 2^nd appellant dismissed and conviction and sentence restored.