MAKENGE MWITA JUDGEMENT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MWANZA AT MWANZA CRIMINAL APPEAL NO. 6321 OF 2024 (Arising from the Judgement of the District Court of Ukerewe at Nansio Criminal Appeal No. 14 of 2023, Originating from the decision of Ukara Primary Court Criminal Case No. 01 of 2023) MAKENGE MWITA ………………………………….……………. APPELLANT VERSUS PERESI NYASIGE ……………………………………………. RESPONDENT JUDGEMENT 9th May & 28th June 2024 CHUMA, J. The respondent was arraigned for theft offence contrary to Sections 258 and 265 of the Penal Code Cap 16 RE. 2022. It was alleged that on 03/01/2023 at around 2300hrs at Buloko Ward within Ukerewe District, Mwanza the respondent stole 70 fish nets worth Tsh. 3,500,000/- being the Appellant's properties. The respondent was convicted and ordered to compensate the appellant. During execution the respondent’s machine was attached to satisfy the award, he objected to the execution order but the trial court overruled his objection. Dissatisfied by the decision of execution the respondent appealed to the district court of Ukerewe where his appeal was allowed and the first appellate court quashed the compensation order 1 made by Ukara Primary Court in criminal case no. 1 of 2023, released the respondents’ machine and advised the appellant to lodge a normal civil suit to recover the money. Aggrieved with the said decision of the District Court of Ukerewe the appellant is now appealing to this court on the following grounds; - 1. That the trial magistrate misdirected himself in hearing, determining, and entertaining the matter which had no confirmation and illegality 2. That the trial Magistrate erred in law and fact by deciding on legal technicalities against substantive justice and failed to appreciate the evidence of the appellant by favoring the respondent while the evidence in Primary court agreed with the appellant 3. That the trial District Magistrate erred in law and fact by determining Criminal Case No. 01 of 2023 delivered on the 19 th January 2023 which had no appeal instead appealed on the decision delivered on 04th September 2023 leaving contested 2 issues of evidence unevaluated which resulted in unreasoned judgment. 4. That the trial Magistrate erred in law and fact in favoring the respondent while the prosecution side proved its case beyond reasonable doubt as the respondent was a thief who stole 70 fish nets that belonged to the appellant This appeal was argued by way of written submission in which Masoud Shabani Mwanaupanga Learned counsel represented the appellant while the respondent’s submission was drawn by Mkaima Charles learned counsel who was engaged for drawing only. In his submission Mr. Mwanaupanga started arguing on the jurisdiction issue raised suo motu by the first appellate court which was not among the grounds of appeal. The first appellate court determined that concern and ruled out that the trial court had no such jurisdiction in awarding compensation of Tsh 1,850,000/-. He added that doing so without inviting parties for a hearing on the raised matter infringed the principle of the right to be heard. He also argued that a decision arrived without affording parties the right to be heard is against the principles of law and invited this court to 3 visit the case of Charles Christopher Humphrey Kombe vs. Kinondoni Municipal Council, Civil Appeal No. 81of 2017, CAT (unreported). Furthermore, Mr. Mwanaupanga argued that the first appellate court entertained an appeal that originated from objection proceedings which is against the law. He cited the case of Amour Habib Salum vs. Hussein Bafagi, Civil Application No. 76 of 2010, CAT (unreported). On the contrary, the respondent firstly concurred with Mr. Mwanaupanga on his first point regarding the jurisdiction issue raised and determined by the first appellate court on its own motion without first according parties’ opportunity to be heard. Secondly, the respondents argued that the issue of objection proceeding raised in the appellant's submission was not among the raised grounds of appeal in this court and therefore it’s a new issue. He however finally called for this court to allow the appeal without costs. In the determination of this appeal, I will begin addressing the issue of jurisdiction which was raised sou mottu and determined by the first appellate court. To make a proper determination I will reproduce what 4 transpired in the first appellate court whereby the petition of appeal contained only two grounds as follows; - i. That, the trial Magistrate erred in law and in fact by not considering the watertight evidence from the appellant which built his objection proceedings case ii. That, the proceedings and the decision of the trial court were tainted with illegalities and irregularities in determining the objection proceedings by rejecting the appellant’s exhibits The record further reveals that on page 3 of the first appellate court judgment, three issues were raised as here under; - i. Whether the appeal is time-barred ii. Whether the trial court had jurisdiction to order compensation of Tshs. 1,850,000/- From the record, it is amply clear that these two issues were not among the grounds of appeal and the proceedings do not reflect the invitation of the parties to address the same by the first appellate court a point subscribed by the respondent as well in his reply to the appellants’ written submission. 5 Parties were supposed to be given the opportunity to be heard in court before arriving at the said decision and the case cited by Mr. Mwanaupanga of Charles Christopher (supra) elaborates clearly on the importance and the need to accord parties the right to be heard. I share a similar view that this right is one of the fundamental ones in the course of justice. This position was held in the case of Anthony M. Masanga vs. Penina (mama Mgesi) & Another, Civil Appeal No. 118 of 2014 [2015] TLR 46 CA, that; - “Courts demand not only that a person should be given the right to be heard, but that he be given an adequate opportunity to be heard so as to achieve the quest for a fair trial” Another guidance on the importance of the right to be heard is found in the decision of the Court of Appeal in the case of Juma Said Vs. Republic, Criminal Appeal No. 29 Of 2018 (Cat-Mwz) (Unreported) at page 8, the Court of Appeal of Tanzania cited with approval the case of Abbas Sherally & Another Vs. Abdul S.H.M Fazalboy, Civil Application No. 33 Of 2002 (Unreported) the Court had this to say and I quote; “The right to be heard before adverse action is taken against such party has been stated and emphasized by 6 the courts in numerous decisions. That right is so basic that decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard because the violation is considered to be a breach of natural justice.” [Emphasis is mine] Moreover, to prove that this is a constitutional right and a crucial one in the system of justice see the case of Mbeya Rukwa Autoparts and Transport Limited vs. Jestina Mwakyoma [2003] TLR 251, and the case of Ngerengere Estate Company Ltd vs. Edna William Sitta, Civil Appeal No. 209 of 2016, CA (unreported) which elaborates on the fundamental importance of such right in attaining fair decisions and attributes equality before the law. Guided by the above observation since the parties were not accorded the fundamental right of being heard, the decision of the first appellate court is null and void. This point suffices to dispose of this appeal without venturing to other grounds. I, therefore, allow the appeal by quashing the proceedings and set aside the judgment and orders of the first appellate court in Criminal Appeal 7 No. 14 of 2023 and order parties to be heard afresh before another Magistrate with competent jurisdiction. Dated at MWANZA this 28th day of June 2024. W.M. CHUMA JUDGE Judgment delivered virtually before Mr. Masoud Mwanaupanga Learned counsel for the appellant and in the absence of the respondent this 28th day of June 2024. W.M. CHUMA JUDGE 8