THE Court of Appeal has cleared from criminal liability former Secretary General with Simba SC, Hassan Othman, alias Hassanol, and two others, on charges of stealing several tons of copper worth over 397m/-, transported from Zambia to Dar es Salaam.
Justices Shaban Lila, Lugano Mwandambo and Rehema Kerefu ruled in favour of Hassanol, Wambura Mahega and Najim Msenga after declining the invitation of the prosecution to have the criminal case r tried afresh after noting several anomalies during hearing at the Kisutu Resident Magistrate's Court.
"We invoke our power of revision under section 4(2) of the Appellate Jurisdiction Act and quash the proceedings and judgment of the trial court and set aside the consequential orders.
In the same manner, we quash the proceedings and judgment of the High Court as they arise from a nullity," they ruled.
The justices went through the records of the trial court and noted that the three accused persons, the respondents in the appeal, were first arraigned before the Dar es Salaam Court on September 2, 2011 on a charge consisting of four accused persons including, one Salim Shekibula.
On January 25, 2012, they observed, the charge against Shekibula was withdrawn and was discharged, but the charge was not amended and the three respondents remained.
On September 6, 2012, the charge was amended and new one substituted comprising three accused persons and three counts.
The last amendment and a new charge being substituted, was on September 13, 2012. It comprised three accused persons but with four counts.
While in the first two occasions when the charge was amended and a new one substituted all three respondents were called upon to plead to all the counts, in the last moment the respondents pleaded to only three counts, as they did not plead to the fourth count.
The justices were of the views, therefore, that there was failure by the trial court to cause the respondents to enter a plea on the fourth count.
"To that extent, we are inclined to hold that the trial magistrate acted contrary to the mandatory requirements of section 228 (1) of the Criminal Procedure Act.
By that omission there was no proper arraignment. In the light of the foregoing, we hold that the respondent's trial was a nullity," they ruled.
Having so decided, the justices took another path to consider the prosecution's request led by Principal State Attorney Tumaini Kweka to have the case tried afresh, an application which was vehemently opposed by counsel for the respondents, Majura Magafu and Nehemia Nkoko.