JUDGMENT Denis Boneventra Ndunguru vs

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA SONGEA SUB- REGISTRY

AT SONGEA CRIMINAL APPEAL NO. 31379 OF 2024 (Originating from Mbinga District Court in Criminal Case No. 8699 of 2024) DENIS BONIVENTURE NDUNGURU ……………………………………… APPELLANT

VERSUS REPUBLIC ……………………………….……………..……………………. RESPONDENT

JUDGMENT 11th March & 08th April, 2025. KAWISHE, J.: The appellant, Denis Boniventure Ndunguru was charged, tried and convicted before the District Court of Mbinga (trial court) with unnatural offence contrary to section 154(1)(a) of the Penal Code (Cap. 16, R.E 2022). He was punished to serve a sentence of life imprisonment in accordance to the provision of section 154 (2) of the Penal Code (supra). 1 Aggrieved with the decision of the trial court, he has approached this court by way of appeal basing on the following grounds: i. That, the trial court grossly erred both in law and fact to determine the matter without considering the evidence adduced by the appellant. ii. That the learned trial Magistrate grossly erred both in law and fact to convict the appellant while there was no sufficient evidence to establish the offence. iii. That, the learned trial Magistrate erred both in law and fact to convict the appellant on a charge which was not proved beyond reasonable doubt against the Appellant as the standard required by the law. iv. That, the learned trial Magistrate erred in law and facts to convict the appellant without according him a right of representation while the appellant has notified the court that he has engaged an advocate who was at the High Court and instead the trial court proceeded with the hearing contrary to the law. At the hearing of the appeal, the

appellant was represented by Mr. Alex Nyoni, learned advocate while the respondent was represented by Mr. Gaston Mapunda and Ms. Agnes Simba, both learned State Attorneys. When invited to argue on the grounds of appeal, Mr. Nyoni prayed to drop the first ground of appeal and informed this court that he will only argue on the second, third and fourth grounds of appeal. He further amplified that; the remaining three grounds of appeal fall into two main issues. The first issue being whether the prosecution proved its case 2 against the appellant to the required standard of proving beyond reasonable doubt and the second is whether the appellant was properly accorded with the right to legal representation. For obvious reasons to be disclosed in due course, I wish to commence with the second issue, which is whether the appellant was accorded with the right to legal representation. It was Mr. Nyoni’s submission that, the appellant was not given the right to legal representation. That, on 15th April, 2024, the appellant informed the court that his advocate was appearing before the High Court of Tanzania at Songea and the case was adjourned to 11th July, 2024. Again, on 11th July, 2024, when the matter was called for hearing, the prosecution informed the trial court that the matter was for hearing and the accused/appellant had the services of Mr. Eliseus Ndunguru learned advocate who

was attending criminal sessions before the High Court of Tanzania at Songea. Mr. Nyoni argued that, for interest of justice the prosecution prayed for another hearing date, however the trial court ordered to proceed with the hearing of the case in the absence of the appellant’s counsel. It was his observation that, since the prosecution informed the trial court that the appellant’s advocate was appearing before the High Court at Songea, it 3 shows that there was a communication between the appellant, his advocate and the trial court. In his view, the court was supposed to adjourn the matter to another date in order to avail the appellant with the right to be heard through his counsel. He augmented that, the right to legal representation is among the elements of fair trial under the right to be heard which is enshrined under article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977. He maintained that, as the appellant was denied his right to legal representation it affected him and there was no fair hearing before the trial court. For that reason, Mr. Nyoni prayed for this court to give any order as it deems just and fair, including remitting the matter before the trial court for retrial in order to avail the appellant with the right to be heard as required by the Constitution of the United Republic of Tanzania, 1977. Replying to the appellant’s learned

counsel submission, Mr. Mapunda, learned State Attorney conceded that the appellant was denied the right to legal representation. He contended, the fact that, the appellant was not accorded with the right to be heard, the decision reached by the trial court was unfair. He prayed that, for the interest of justice, the matter be 4 remitted before the trial court for retrial from where the appellant was denied the right to be represented. In his succinct rejoinder submission, Mr. Nyoni reiterated what he submitted in his submission in chief. He had nothing new to add, he left it for the court to decide. As alluded by the learned counsel for both parties, it is important to remember that, the right to legal representation in criminal proceedings is widely recognized as one of the most vital prerequisites of the right to a fair trial in criminal justice. In our jurisdiction, the requirement for legal representation is a constitutional right. It is protected under the right to be heard which is among the principles of natural justice enshrined under article 13(6)(a) of the Constitution of the United Republic of Tanzania (supra). Thus, it is a fundamental right and failure to avail an individual with it, indeed is an irregularity that violates the basic right. As already stated above, the right to legal representation is among the constitutional rights incorporated in the Constitution

of the United Republic of Tanzania (supra) vide Act No. 15 of 1984. The right to a fair hearing enshrined under article 13(6)(a) of the Constitution of the United 5 Republic of Tanzania (supra) carries with it the right to a legal representation. Therefore, where legal representation is unreasonably denied the trial will be held to be a nullity, regardless of whether the irregularity has occasioned a miscarriage of justice or not. This position was well articulated by the Court of Appeal in Laurent Joseph vs. R [1981] T.L.R. 351, where the Court had this to state: “We cannot say that if he had been legally represented a different picture would not possibly have emerged. That is the point. This is because the quality of justice we got when an accused is not legally defended is bus-standard. It is not every man who has the ability of defending himself on his own. He cannot bring out the points in his own favour or the weaknesses in the other side. He may be tongue-tied or nervous, confused or wanting in intelligence. He cannot examine or cross - examine witnesses intelligibly. The quality of justice, surely improves where there is legal representation.” [Emphasis added] Therefore, from the above holding, it is clear that, the law guides that any decision that breaches the right to fair trial and principles of the natural justice cannot stand, and it is immaterial whether the

same decision would have been arrived at if such violation would have not occurred. In plethora of case law, it has been held that, once an accused person has availed himself the services of an advocate, he should not be 6 deprived of the right to be defended by a counsel. The cases include but not limited to; J.A. Haji vs. R [1947] 1 T.L.R. (R) 299; Mugoma vs. R [1957] E.A. 555 (C.A.); Joshua Nkonoki vs. R [1978] L.R.T No. 24, D.P.P. vs. Rugaimukamu [1982] T.L.R. 139, Alimasi Kalumbeta vs. R [1982] T.L.R. 329 and John Kahamila vs. Paschal Jonathan & Hilda Hosia [1986] TLR 104. This court is also persuaded with what was stated in the case of John Kahamila vs. Paschal Jonathan & Hilda Hosia (supra). While explaining on the importance of the right to legal representation, this court quoted an incisive commentary from the eminent English Lawyer Lord Denning M.R. in Pett vs. Greyhound Racing Association Ltd [1969] 1 QB 1, in which it was stated that: “It is not every man who has that ability to defend himself on his own. He cannot bring out the points in his own favour or the weakness in the other side. He may be tongue-tide or nervous, confused or wanting in intelligence. He cannot examine or cross examine witnesses. We see it every day. A magistrate says to a man: ‘You can ask any question you like’; whereupon the man immediately starts to make a speech. If justice is to be, he

ought to have the help of someone to speak for him. And who better than a lawyer who has been trained for the task? I should have thought, therefore, that when a man’s reputation or livelihood is at stake, he 7 not only has a right to speak by his own mouth. He also has a right to speak by counsel”. I subscribe to these views that, when one’s rights and duties are being determined by a court of law, legal representation is of at utmost importance. This principle was well articulated by the Court of Appeal in a recent decision in the case of Mabula Mwandu @ Nyau and Another vs. Republic (Criminal Appeal No. 222 of 2023) [2025] TZCA 269 (24 March 2025) where it held that: “Effective representation before the court of law is one of the tenets of a fair hearing which embraces a fundamental right to be heard envisaged under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977.” In line with the excerpt above, while considering the case at hand, the proceedings of the trial court indicate clearly that, the appellant managed to hire an advocate. On the hearing date he informed the trial court through the prosecution counsel which also clearly shows that there was communication between the parties. It has been submitted by the appellant’s learned counsel that, the court was well informed that his counsel was appearing before the High Court in a Criminal

Sessions. Nevertheless, for unearthed reasons, the trial court failed to avail the 8 appellant with the right to legal representation. As a result of the foregoing reasons, I find the appellant’s right to legal representation was unreasonably deprived. In such circumstance justice cannot be said to have been done. So much has been done, thus the second issue whether the appellant was properly accorded with the right to legal representation is answered in the negative. Having arrived into the above finding, I am settled that, the second issue suffices to dispose of the appeal. In the circumstances of this case, there is no need of discussing the issue on whether the case was proved to the required standard against the appellant. I am saying so because this matter was half cooked before the trial court. Venturing to the first question will result into an uncalled for position. Consequently, the fourth ground of appeal is merited and it is allowed. On the way forward, the trial court’s proceedings from 15th July, 2024 when the appellant was deprived with the right to legal representation onwards are nullified. Its judgment is hereby quashed, the conviction and sentence are set aside. This court orders that, the file of this case be remitted to the trial court. Hearing of the case of the appellant be 9 resumed as soon as possible from the point where he was denied his fundamental right to legal representation. Meanwhile, the appellant should remain in remand prison waiting for trial of his case. It is so ordered. DATED and DELIVERED at SONGEA this 08th day of April, 2025. E. L. KAWISHE

JUDGE COURT: Judgment delivered in the presence of Mr. Gaston Mapunda, Ms. Agness Simba and Ms. Wande Kachima, State Attorneys for the respondent and in the presence of Mr. Alex Nyoni, learned advocate for the appellant and in the presence of the appellant. Right of appeal explained. E. L. KAWISHE

JUDGE 08/04/2025 10