REPUBLIC v KARIMU TAIBALE 1985 TLR 196 (HC)

 

REPUBLIC v KARIMU TAIBALE 1985 TLR 196 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

April 21, 1982

CRIMINAL REVISION 6 OF 1981

Flynote

Criminal Practice and Procedure - Charges - Defective charges - Charge citing wrong

offence and wrong or non-existent provisions of the law - Effect. F

Criminal Practice and Procedure - Pleas - Plea of guilty to a defective charge -

Whether the plea is unequivocal

-Headnote

The accused person pleaded guilty to a charge which cited wrong as well as nonexistent

provisions of the law. He also admitted the "facts as charged". A plea of

guilty was G entered by the trial court and the accused was convicted accordingly.

But the particulars of the charge disclosed various distinct offences under different

laws. On revision:

Held: The charge was so fundamentally defective that the accused could as well have

H been admitting different offences in the same count and his plea cannot be taken

to have been unequivocal;

Cases Information

Conviction quashed. I

No cases referred.

1985 TLR p197

SISYA J

A.T. Akaro, for the Republic. A

Judgment

Sisya, J.: This Court has, in the past, expressed desirability for Magistrates to go

through the charge before admitting the same and reading it over to the accused. The

idea behind this exercise being that if a clearly defective charge, i.e. a B charge with

wrong sections of the law or faulty wording, is presented then the prosecutor may be

given a chance to rectify the mistakes before the same is read over to the accused.

Needless to say the exercise will serve no purpose if, in the case of errors, no

correction is made.

In the matter currently before me the accused, Kalimu Taibale, appeared before the C

Senior Resident Magistrate, Tanga, to answer to a charge containing three counts

charging him with driving a defective motor vehicle on the public road; failing to

carry a certificate of registration; and using a motor vehicle on the public road

without a valid certificate of insurance, respectively. The first two are offences under

the Road Traffic D Act, no. 30 of 1973. The section and law cited in respect of the

third count in the charge as laid is section 6 A (1) and (2) of the Finance Act, No. 12

Part X1/73. The charge is shown to have been "Okayed" by the learned Senior

Resident Magistrate.

I have gone through the laws but I have not been able to lay my hands on or set my

eyes E upon the law cited in the charge. The Finance Act which was passed in 1973

is actually no. 10 and not 12 of 1973. Part X1 thereof deals with amendments to the

Tobacco (Imposition of Tax) Act 1970. Act no. 12 of 1973 is the Acquisition of Shares

(Aluminium Africa Company Limited) Act, 1973). Neither of these talks of or has F

anything to do with certificates of insurance for motor vehicles.

The wording of the offence in count three is also a misnomer. The correct and proper

wording or title of the offence is failure to display on a motor vehicle a certificate of

insurance issued in respect of such motor vehicle. This is an offence under

Regulation 3 G (1) of the Road Traffic (Display of Certificate of Insurance)

Regulations 1974, GN 119 of 1974.

As I think has sufficiently been demonstrated, the offence, section and law quoted in

count 3 are, thus, all wrong. That, however, as I will now endeavour to show, is not

the end of the story. Forgetting, for the moment, the section and law quoted in the

count H under querry the wording of the offence, namely using a motor vehicle on

the public road without a valid certificate of insurance against third party risks at all.

If so then this is an offence under section 4(1) of the Motor Vehicle Insurance

Ordinance, Cap. 169 and one would have expected the accused to have been charged

under that law. He was I not. However upon reading the particulars of offence it

becomes apparent that the accused actually did have a certificate

1985 TLR p198

SISYA J

of insurance on his motor vehicle but the same had expired six months previously.

This A is an offence under Regulation 3(2) of GN 119 of 1974. Still forgetting about

the section and law quoted in count three, the offence and particulars of offence

supposedly in respect of one and the same offence are, actually, in respect of two

separate and distinct offences: One, failure to insure a motor vehicle against third

party risks - this is B disclosed in the title of the offence - and, two, displaying a

certificate which has ceased to be valid - this is clear from the particulars of offence.

The record of proceedings shows that when he was called upon to plead the accused

simply replied, "True" to the third count as he is also shown to have done in the other

first two counts. A plea of guilty was then entered and when the Public Prosecutor

was C called upon to narrate the facts he is recorded to have said, "Facts as charged".

The question that has occupied my mind in this exercise in revision is whether the

accused's plea was proper. The learned State Attorney, Mr. Akaro, submitted that it is

not unequivocal. I respectfully agree. For reasons already disclosed I am of the firm

D view that the charge in count three was defective and that the said defect was

fundamental. In so far as the accused could have been admitting two different

offences in the same count his plea cannot, under any stretch, be said to have been

unequivocal. E

For these reasons the subsequent conviction in count three cannot be allowed to

stand. The same is hereby quashed and the sentence passed thereon is, accordingly,

set aside. The fine of Shs.600/= which was paid should now be refunded to him.

Mr. Akarro, the learned State Attorney, urged the Court to order a retrial. I,

however, F do not feel disposed to make such an order as the matter is now, as it

were, almost stale. I, however, leave it to the Public Prosecutor to make up his mind

whether or not to proceed with the matter.

Finally, this Court wishes to emphasize, once again, the desirability of magistrates to

go G though the charge before admitting the same. Such an exercise should not be

done perfunctorily but diligently and for a purpose.

H Conviction quashed.

1985 TLR p199

A