Court name
High Court of Tanzania

Republic vs Karimu Taibale () [1982] TZHC 5 (21 April 1982);

Law report citations
1985 TLR 196 (TZHC)
Media neutral citation
[1982] TZHC 5

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

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.

A