Q&A – 24 January 2011

Mobile companies steal credit

I know for certain that my mobile phone company is debiting my post paid account a few cents every day. They also purposely disconnect you when you are on the line so that you redial and they make more money of you. What can I do?
KJ, Dar

As a customer of the mobile operator, you have a contractual relationship with the company. Your allegations against the cellular operator might be true and you can sue them, but the hardest part is to prove these allegations.

We did research the subject and found out that some operators in other parts of the world have been found guilty of different kinds of mischief. Your operator may not be a saint afterall and should you have evidence against it, you have a good cause of action. It might also lead to an investigation of the company as should they be debiting your account, they could be doing the same to many other peoples accounts.

We suggest you get the evidence and go see your attorneys.

Appeal to begin after prison sentence

In 2007 my brother who was employed by a certain public parastatal was charged with the offence of stealing monies of his employer. He was tried, convicted and sentenced to jail for a term of 3 years. Despite being found guilty and having been sentenced, the Republic appealed to the High Court to challenge the decision of the District Court alleging that the sentence of 3 years in jail was too lenient. This came to all of us as a shock. In May 2009 my brother completed his prison sentence and was released from jail. He has now been served with a Court summons calling him to attend the appeal against him. Is the Republic’s appeal allowed in law? What are the chances of success in the appeal? Is the appeal fair especially considering the fact that he has already served his punishment and released from jail? What will happen in the event the appeal against him succeeds? Please advise as all of us are confused.
LP, Dar

The matter is indeed confusing for you as family members. It seems to be quite clear that the Republic was aggrieved with the sentence of 3 years that was imposed upon your brother. The Republic wants to see the sentence enhanced, which is allowed, the same as would have been the case had your brother thought the sentence is excessive. Considered that your young brother was charged with stealing property of the public parastatal, which is a specified authority, under the Minimum Sentencing Act the correct sentence for this particular offence should have been 5 years imprisonment and not 3 years. This is not what you want to hear but it is the plain truth.

Since the trial Court has imposed a lesser sentence which offends the provisions of the Minimum Sentencing Act, the High Court will likely have no other means of preventing the due process of the law from being carried out and will likely impose the correct sentence, even if this will lead to undesirable consequences.

Whether your brother has completely served his custodial sentence is immaterial as the time already served will be taken into account in computing the correct duration of stay in jail. Unless there are other facts that you have not disclosed to us, it is likely that the appeal will succeed and your brother will have to serve a further 2 years in jail.

Protection of witnesses against prosecution

In November 2009 my wife appeared in the District Court where she went to testify for the accused in a case involving my neighbor, who was charged with the offence of assaulting the wife of a rich businessman also our neighbour. During cross examination, the public prosecutor confused my wife with tricky questions and ended up accusing her as a liar and abettor to the offence. My wife has now fled home fearing that she will be arrested because she testified. Is there any possibility that she will be charged? Please advice.
FF, Moshi

We are not aware of what questions were put to your wife and how she answered those questions. With the limited facts you have given us, we do not believe that there is anything your wife should worry about. The general principle of law is that a witness in Court cannot latter be arrested or prosecuted on the grounds of any personally incriminating evidence given nor can that evidence be used as proof against the witness in any subsequent proceedings. The law gives immunity to witnesses from being prosecuted on the basis of evidence they give in Courts unless they purposely give false evidence which is not the case here. Unless there are other reasons why your wife left you, we are sure she can return without being arrested.

Calling witnesses during appeal

In 2000 three of us were charged in the District Court with two counts; stealing by public servant and being in possession of offensive weapons. After a hearing at the trial Court, I was found with no case to answer as opposed to my co accused. The director of public prosecutions appealed to the High Court and the judge recalled three witnesses and called one new witness to hear evidence against me. The High Court then proceeded to reverse the acquittal order, held that I had a case to answer and ordered that I be joined with my co accused for defence at the trial Court. Was the judge right and fair to hear new evidence? Please advice me.
YG, Morogoro

Under the Criminal Procedure Code, the law clearly allows the High Court to summon any person or recall any of the witnesses if their evidence appears to be essential to the just decision of the case. The High Court is also empowered, when dealing with appeals from the subordinate Courts, to take additional evidence (if necessary) itself or direct that such evidence be taken at the subordinate Court.

However, the High Court must record reasons for additional evidence and it should not misuse this and turn it into a retrial, filling up gaps in the prosecution’s case or changing the nature of the case against an accused person. The evidence added by the High Court shall be taken as if it were evidence taken at the trial before the subordinate Court. As we have no Court records to view which will help us guide you whether additional evidence was necessary for such a decision, we advise you to consult your attorneys for further advice.