DIRECTOR OF PUBLIC PROSECUTIONS VS EMMANUEL COSMAS CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCO RAM: MUGASHA, J.A.. MAIGE, J.A. And KHAMIS. J.A.l CRIMINAL APPEAL NO. 385 OF 2019 DIRECTOR OF PUBLIC PROSECUTIONS.................................... APPELLANT VERSUS EMMANUEL COSMAS........................................................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania, at Mwanza) (Rumanvika, 3.) dated 18th Day of June, 2020 in Criminal Appeal No. 150 of 2015 JUDGMENT OF THE COURT 5th & 7th June, 2024 MAIGE. J.A.: In the High Court of Tanzania at Mwanza (the trial court), the respondent was charged with the offence of'murder contrary to sections 196 and 197 of the Penal Code. The incident was alleged to have taken place on 20th October, 2012 at Mwanjombo Village within Misungwi District in Mwanza Region. It involved the killing of one Misoji D/O Fulano. As the record speaks, the matter placed for hearing, for the first i time on 24th May, 2019 where about four prosecution witnesses testified. i * j After several adjournments, the fifth prosecution witness who was a doctor, testified and the hearing was adjourned to 11th June, 2019 when the sixth prosecution witness would testify. The said witness who was seemingly a student at the Law School of Tanzania did not appear for the reason that he was, just a day before, in attendance of examination. For the same reason, the learned state attorney prayed for an adjournment of the hearing to the next day, the prayer which was not objected to by the defense counsel. The trial court did not decide the matter but it ordered that ruling would be delivered on 14th June, 2019. In its ruling, the trial judge dismissed the case and discharged the respondent having invoked the provisions of section 264 of the Criminal Procedure Act. In reaching to such a decision, the trial judge reasoned, inter alia: "One;' that the intended witnesses were, but nonexistent at all. Two; that the intended witnesses had no further interests in the case; Three, the process server God Forbid! has compromised and or for the reasons known to himself he just chose not to serve witnesses. Like any court orders, a notice of hearing has never been meant to serve cosmetic purposes. " The appellant was aggrieved by the decision, hence the instant appeal. In the initial memorandum of appeal, the trial court was generally criticized for dismissing the case and discharging the respondent. Before the hearing could commence, however, and, with leave of the Court, the appellant filed a supplementary memorandum of appeal in which he faulted the trial court' for diismissing the case and'discharging the respondent without affording the parties a right to be heard. During hearing, Mr. Daniel Masambu, learned State Attorney who prosecuted the appeal on behalf of the appellant, abandoned the ground in the initial memorandum of appeal. In his very brief submissions in support of the appeal, Mr. Masambu started by drawing our attention to the fact that, while the appellant's uncontested prayer before the trial court was for adjournment of the matter to the next day, the trial court dismissed the case and discharged the respondent basing on the issues it had raised on its own motion and without involving the parties. In his contention, which is correct, in our view, that was a clear curtailment of the appellant's right to be heard which is protected under article 13 (6) (b) of the Constitution of the United Republic of Tanzania. A decision arrived at in violation of the right to be l heard, he further submitted, is a nullity which cannot be left to stand. He prayed, therefore that, the appeal be allowed, the decision of the trial court be set aside and the record remitted to the trial court for continuation of trial from where it ended. More to that, the counsel prayed that the respondent be rearrested and produced to the trial court to defend the charge. As we expected, Mr. Innocent Kisigiro, learned advocate who represented the respondent, supported the appeal. It is worth of note, however that; although he was duly served by way of publication, the respondent did not personally appear in Court. Therefore, the matter proceeded in his absence. We have considered the concurrent submissions of the counsel on the merit of the appeal. We agree with Mr. Masambu that; since the uncontested informal application before the trial court on 11th June, 2019 was for an adjournment, it was not in order for the trial court to, as it did, dismiss the case and discharge the respondent basing on the issues and facts upon which parties were not afforded a right to be heard. As we held in the Director of Public Prosecutions v. Mussa Lyamhelo @ Seba Akujiwe and Another (Criminal Appeal No. 156 of 2015 (unreported), the decision) [2016] TZCA (8 April 2016), in so far as it 4 arbitrarily deprived the appellant of the fundamental right to be heard, is a nullity and cannot be left to stand. In the final result and for the foregoing reasons, we allow the appeal and set aside the ruling and order of the trial court. We further direct that the respondent be rearrested and incarcerated in prison pending continuation of the trial. The case file should be remitted to the trial court for continuation of hearing of the prosecution case from where it ended before another Judge. DATED at MWANZA this 7th day 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 7th day of June, 2024 in the presence of Mr. Jaines Kiwhelu, learned State Attorney for the Appellant, and in the absence of the respondent, is hereby certified as a true copy of the