CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: MUGASHA. 3.A.. MAIGE. J.A. And KHAMIS. J.A.^ CRIMINAL APPEAL NO. 381 OF 2019 THE DIRECTOR OF PUBLIC PROSECUTIONS..........................APPELLANT VERSUS SHITULA WILLIAM...................................................... 1st RESPONDENT PEJI NGWENHUWA NDEGE..........................................2nd RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mwanza) ( Rumanvika. J.^ dated the 18thday of June, 2019 in Criminal Sessions Case No. 151 of 201S JUDGMENT OF THE COURT 4th & 10th June, 2024 KHAMIS. 3.A.: This is an appeal by the Director of Public Prosecutions from the ruling of the High Court of Tanzania, Mwanza delivered on 18th day of June, 2019 in Criminal Sessions Case No. 151 of 2015 where the learned trial Judge rejected the appellant's application for an adjournment, dismissed the charge and discharged the respondents. On 19th November, 2015, the respondents were committed to the High Court for trial of the charge of murder contrary to section 196 and i 197 of the Penal Code, Cap 16, R.E 2002 (2023). It was alleged that, on 21st day of November, 2013, at Lukanga village, Misungwi District, Mwanza Region, the duo murdered one Shoma S/O Kitula. In the preliminary hearing, the prosecutions enlisted seven witnesses and three documentary exhibits. At the trial, the appellant paraded four witnesses: PW1 Dr. Deusdedit Emmanuel Buluhya, PW2 F 2464 D/CPL Theophilus, PW3 Hia Kitashika Kashomari and PW4 Matogolo Kukena. When the matter came up for continuation of trial on 10th June, 2019, the prosecution examined PW4 and on completion, informed the court that, three other witnesses would be brought the following day. On 11th June, 2019 the prosecution was not ready to proceed on the basis that, its witness, the justice of peace, was indisposed. The court entered an order for last adjournment to the following day. When the matter finally came up for hearing on 12th June, 2019, Ms. Lilian Meli, learned State Attorney, appraised the court that, the remaining sole witness was still indisposed and therefore, sought for an adjournment. Ms. C. Chande and Mr. S. Mhoja, the then learned advocates for the respondents, resisted the prayer on the ground that, the matter was long overdue. They moved the court to regulate its proceedings by closing the case of the prosecution under section 264 of the Criminal Procedure Act, Cap 20, R.E 2023 (the CPA). The court fixed the matter for ruling on 14th June, 2019. Ruling was ultimately delivered on 18thJune, 2019 to the effect that, the prosecution did not disclose the whereabouts of other witnesses which was considered as the failure to show sufficient reasons to warrant an adjournment. On that basis, the trial judge proceeded to dismiss the charge and discharge the respondents. Aggrieved by the decision, the Director of Public Prosecutions appealed to this Court advancing one ground of appeal couched as follows: "The trialJudge erred In law and fact by dismissing the case and discharging the accused persons (the respondents). "When hearing was about to start in earnest, the appellant successfully sought leave of the Court to abandon the original ground of appeal and file a supplementary memorandum of appeal containing a new ground, namely: "1. That the Hon. TrialJudge erredin law and fact by dismissing the case and discharging the accusedpersons withoutgiving parties the right to be heard on the issue as to whether the case can be adjourned or proceed with the hearing." Before us, the appellant was represented by Mr. Daniel Masambu, learned State Attorney. Messrs. Inhard Mushongi and Masoud Mwanaupanga, learned advocates, acted for the first and second respondents, respectively. However, despite service by publication, none of the respondents entered appearance. Mr. Masambu submitted that, the decision of the trial Judge to dismiss the charge and discharge the respondents was a fetal error, which denied the Republic an opportunity to participate in the trial. He contended that, the trial court failed to adhere to safeguards envisioned under article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977 (the Constitution). That, the trial Judge denied the parties an opportunity to present their cases. He drew attention of the Court to the Director of Public Prosecutions v. Mussa Lyamhelo @ Seba Akujiwe & Mariam Shamsi, Criminal Appeal No. 156 of 2015 [unreported], wherein the Court pointed out that, under the scheme of the CPA, a Judge of the High Court, sitting on trial, has no powers, express or inherent, to withdraw criminal charges. He contended that, the powers of withdrawal are vested in the prosecution and not trial Judges. Counsel asserted that, the trial Judge misdirected himself on the issue before him on the reasoning that, whereas the rival counsel addressed him on the prayer for an adjournment, he went ahead to dismiss the charge and discharge the respondents. He drew our attention to the proceedings at pages 50 and 51 of the record and contended that, on the face of it, the appellant was deprived of the right to be heard. Further, the learned State Attorney contended that, the trial Judge had exercised discretionary powers in the control of proceedings but should have exercised it judiciously. It was argued that, on the last date of hearing, apart from the contention that the justice of peace was still indisposed, parties did not submit on the reasons for non - appearance of other prosecution witnesses. It was further submitted that, perverse with the submissions of the parties, as reflected at pages 75 - 76 of the record, the Judge, suo motu, had alluded that: the remaining prosecution witnesses were non - existent; they had lost interest in the case and turned hostile; the process server was compromised and or for reasons known to himself, chose not to effect service on the witnesses. The learned counsel further contended that, before dismissing the case of the prosecution, the trial Judge failed to properly address himself on the reason for non-appearance of the justice of peace as the only remaining prosecution witness. He submitted that, since the justice of peace was indisposed, the dismissal of the charge and discharge of the respondents at the instance of the court, was drastic and arbitral and that, i the application of section 264 of the CPA was a fumble. In conclusion, the counsel urged the Court to allow the appeal, set aside the dismissal of the charge and discharge of the respondents, and substitute them with an order for trial denovo. When given the floor to address the Court, Messrs. Mushongi and Mwanaupanga, learned counsel for the respondents, readily supported the appeal. The learned counsel contended that, having reflected on whether the trial court properly exercised its discretion in making the impugned orders, they were of the view that, the appellant was not afforded the right to be heard on the impugned decision. We have considered the counsel submissions, the impugned ruling and the entire record. The question that springs up for determination is whether the trial court was justified in dismissing the charge and discharging the respondents. We must hasten to point out that, there are minimum standards to be observed for any trial to be fair. These standards were spotlighted in Mfaume S/o Daudi Mpoto & Others v. Republic [2023] TZCA 17568 [31 August 2023], thus: "The rules applicable to the administration o f justice are wide and as a minimum, refer to, interalia, presumption o f innocence, the right to be heard by a competent, independent and impartial court or tribunal, the right to be heard within a reasonable time, the right to counsel in respect o f capital offenses, the right to interpretation, the right to know nature o f the accusation, the right to examine witnesses, the right o fjuvenile offenders, no punishment without law, the right to appealand the right to due process." We are further guided by our decision in Kabula D/o Luhende v. Republic, Criminal Appeal No. 281 of 2014 [unreported] where we pointed out that, the law envisages fair hearing to mean that, both parties to a case are given opportunity of presenting their respective cases without let or hindrance from the beginning to the end and encompasses strict adherence to the rules of natural justice, whose breach would lead to the nullification of the proceedings. The question therefore, is whether in the circumstances of this case, the parties were not afforded the right to be heard. It isevident from the record that, on the material date, the prosecution notified the trial court that its sole witness was still indisposed and therefore, sought an adjournment. In response, the defence counsel contended that, the matter was pending for no reasons and called upon the prosecution to close its case. In the alternative, she moved the court to exercise its discretion under section 264 of the CPA. In arriving at its decision, the court did not address itself on sickness as the reason assigned by the learned State Attorney for non-appearance of the remaining one witness, and instead, it suggested that: "the learned State Attorney did not tell the court on the whereabouts of the other witnesses." Obviously, the learned Judge's observation did not consider the substance of the appellant's submissions that, it remained with one witness and not "witnesses." At page 75 to 76 of the record, the trial Judge recounted the three underlying causes for non-appearance of the remaining prosecution witnesses, to wit: the witnesses were non-existent; the witnesses had lost interest in the case and therefore, quietly turned hostile; and; that, the process server was compromised or for reasons known to himself chose not to effect service on those witnesses. In its analysis of the underlying causes for alleged non-appearance of the witnesses, the trial court did not refer to any submissions of the parties, and as it transpired, those reasons were introduced by the trial Judge at the time of composing the impugned decision. It is clear therefore, the fundamental rule of natural justice that, any court, tribunal 8 or authority having power to affect the rights, interests or privileges, or legitimate expectations of a person is bound to hear that person before exercising its power, was not observed. The trial Judge's omission to analyse sickness of the justice of peace as the reason for the adjournment sought by the prosecution; failure to ascertain on whether the prosecution had remained with one or more witnesses; failure to invite the appellant to make a rejoinder on the submissions by the defence counsel; and, failure to invite parties to submit on the dismissal of the charge and discharge of the respondents, were fatal irregularities in the proceedings. We are further of the view that, the act of the trial Judge to craft imaginary reasons for the alleged absence of the prosecution witnesses without affording parties an opportunity to make presentations thereon, was a clear denial of the right to be heard as enshrined under article 13 (6) (a) of the Constitution. It is our considered view that, since both parties were present at the hearing, the trial Judge was at fault for dismissing the charge and discharging the respondents, without affording parties an opportunity to address him on the reasons relied upon in the decision. For the foregoing reasons, the appeal is allowed. The orders of the trial court to dismiss the charge and discharge the respondents are quashed and set aside. We order that, the respondents should be immediately arrested and remanded pending trial. We further order that, this matter be remitted to the High Court for continuation of trial before another Judge from the stage it ended as it was not conclusively heard on its merits. DATED at MWANZA this 7thday of June, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 10thday of June, 2024 in the presence of Ms. Revina Tibelangwa, learned Principal State Attorney for the appellant / Republic and in the absence of the 1st and 2nd respondents, is hereby certified as a true copy of the original. 10