THUWAY AKONAAY v REPUBLIC 1987 TLR 92 (CA)

 

THUWAY AKONAAY v REPUBLIC 1987 TLR 92 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Mustafa JJA, Omar JJA and Mfalila Ag JA

21 September, 1987

Flynote

Criminal Practice and Procedure - Charges - Withdrawal and substitution of charges - Whether omission to call upon an accused to plead to the new or altered charge renders a trial a nullity.

-Headnote

The appellant was originally charged with threatening violence, but the charge was withdrawn and a new charge alleging arson was substituted therefor. The appellant was not called to plead to the new charge, or first appeal the judge was satisfied that provisions of s. 234 of the Criminal Procedure Act were complied with because the appellant saw no need to recall previous witnesses immediately after the charge of arson H had been substituted for that threatening violence and PW.I alone had testified.

Held: It is mandatory for a plea to a new or altered charge to be taken from an accused I person, failure to do that renders a trial a nullity.

Case Information

Appeal allowed. A

Case referred to.

1. Akbarali Damji v R. 2 TLR 137

Judgment

Mustafa, Omar, JJ.A. and Mfalila, Ag. J.A.: In this case the appellant was originally B charged with threatening violence but that charge was withdrawn and a new charge alleging arson was substituted thereof. The appellant was not called upon to plead to the new charge at all.

On first appeal the judge dealt with the omission in the following terms:

On the question of non-compliance with section 234 of the Criminal Procedure Act I am satisfied the section was complied with - only that not everything was recorded in detail. For D under what circumstances could the appellant have said:

I do not need to recall the previous witnesses, immediately after the charge of arson had been substituted for that of threatening violence and P.W.1 alone had testified.

With respect we think the first appellant judge was in error. It is mandatory for a plea to a new or altered charge to be taken from an accused person, as otherwise the trial becomes a nullity. We would refer to an old case which had dealt with thi matter and which is still good law. The case is Cr. Appeal 220/56 Akbarali Damji v R. reported F in 2 T.L.R. 137. The head note reads:

The arraignment of an accused is not complete until he has pleaded. Where no plea is taken the trial is a nullity. The omission is not an irregularity which can be cured by section 346 of G the Criminal Procedure Code.

The head note correctly sets out the findings of the Chief Justice in that appeal. We are satisfied that, since no plea was taken, the trial was a nullity. We allow the appeal, quash the conviction, set aside the sentence imposed, and order that the appellant be released forthwith unless otherwise lawfully detained. We do not I think this case calls for an order of a retrial, and we will make no such order.

Appeal allowed.

1987 TLR p94