THE Court of Appeal has ordered fresh trial of two foreigners, Diaka Brama Kaba and Ndaje Abubakar, who were sentenced to 22 years imprisonment and pay over 3bn/- for trafficking into Tanzania 30,875.75 grams of cocaine hydrochloride valued at 1.2bn/-.
Justices Rehema Mkuye, Barke Sahel and Ignas Kitusi reached into such a decision after nullifying the proceedings and judgment of the High Court and quashed the conviction and set aside the sentences imposed on two foreigners, the appellants, after noting some legal irregularities.
“We hereby order for a retrial of the case before another judge with a new set of assessors and further that should the appellants be convicted, the period already served by them in custody be considered in the course of imposing a sentence,” the justices directed.
They noted from the records that during the trial before the High Court, the appellants were charged jointly with three others, who were discharged by the Director of Public Prosecutions (DPP) by entering a nolle prosequi under section 91 of the Criminal Procedure Act (CPA).
Nolle prosequi, abbreviated nol or nolle pros, is legal Latin meaning “to be unwilling to pursue” or a formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit or action.
“We are settled in our mind that after the discharge of the three former accused persons by a nolle prosequi, the DPP ought to have amended or substituted the charge to reflect the two-remaining accused against whom the charge preceded,” they said.
Alternatively, the justices said, the trial court could have made an order for the amendment or substitution of the charge if it occurred to it that the said charge was defective either in substance or form.
They noted from the record of appeal that both the prosecution and the trial court failed to ensure that the charge was amended or substituted following the discharge of the three accused persons by a nolle prosequi.
“This was a fatal irregularity which occasioned miscarriage of justice as it caused the appellants not to be accorded a fair trial which cannot be cured by section 388 of the CPA. The appellants cannot be said to (be) accorded a fair trial where they did not plead to a charge to which they were convicted,” they said.
According to them, it was also noteworthy that had the charge or information been amended or substituted, it was required for such amended charge to be read over to the remaining accused persons for them to enter their fresh plea.
“Where such procedure is not conducted, it would render the trial a nullity since the anomaly cannot be cured under section 388 of the CPA,” the justices pointed out.
In the matter at hand, they noted, the record of appeal bears out that on May 18, 2015 when the appellants together with the three former accused were arraigned before the trial court, the charge which was read over and explained to them comprised five accused persons.
The facts of the case which were read over to the accused persons during preliminary hearing show that they involved five accused persons. Even the memorandum of undisputed facts was signed by among others the five accused persons.
Then, the trial commenced on October 28, 2015 and continued on different dates and six witnesses testified for prosecution. On December 14, 2015 while the seventh prosecution witness was testifying, the prosecution withdrew the charge against three accused persons under section 91(1) of CPA.
The justices observed, however, that the court proceeded with the trial against the appellants to its conclusion without having amended or substituted the charge.
Incidentally, the trial court when composing its judgment seems to have noticed the anomaly and amended the particulars of the offences from those involving five accused persons to those involving two accused persons.
“We think (that) was not proper as there was neither an order of the court to that effect nor endorsement and the same was not read over to the remaining accused persons as required by sections 276 and 228 of the CPA,” they said.
The trial court explained on how the case started with five accused persons and later the termination of the charges against three accused persons and further that at the time of withdrawal of the case several witnesses had already testified and various exhibits had been tendered.
Much as it may well be said that the appellants were given an opportunity to defend themselves, there is no doubt that their defence based on a defective charge.
On top of that they defended themselves on a charge and evidence which related to five accused persons.
It was alleged that on June 23, 2010 at Mwalimu Julius Nyerere International Airport (JNIA) area in Ilala District in Dar es Salam, the appellants together with three others, Sylvia Kaaya Namirembe, Frank Kisuule and Robinson Dumba Teise, trafficked into Tanzania 30,875.75 grams of the narcotic drugs.