19821104TZCA Dar es Salaam

, ......... .... , IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CORAM: Mwakas~.nd·o, JAo, Makame 7 J.A. and Kisi:\rtga 7 J.A. CIUMINAL APPEAL NO. 51 OF 1980 BETWEEN THE DIRECTOR OF PUBLIC PROSECUTIONS o . . oeoei>U APPELLANT AND WILBERT MOSHI eoooo ■ •••••••o•••••••••• ■ o•••• RESPONDENT (Appeal from the conviction.of the High Court of Tanzania at Mbeya) Mwakibete, J.) dated the 23rd day of July, 1980, in Criminal Appeal No. 31 of 1980 R U L I N G MWAKASEND0 1 J • .L\,. Mr. Mwipopo, le~rh~d Sehior State Attorney who appears on behalf of the Repllblic ih these proceedings, has raised a matter of the utmost importance to the administration of criminal justice in the United Republic. Briefly, we are concerned here with the construction·of subrule (1) of Rule 73 of the Tanzania Court of Appeal Rules, 1979. The background to the present proceedings may• be outlined as follows. On 29th July, 1980 the Director of Public Prosecutions being - ,____ aggrieved by the decision of the High Court allowing the responde~t•s appeal against his conviction and sentence imposed for an offence of corrupt transaction with agent, filed through the Deputy Resistrar of r the Court of Appeal at Mbeya, a notice of appeal to this court. On 10th October, 1981 the Director of Public Prosecutions filed in this court a memorandum of appeal setting out three grounds of appeal. This Memorandum was, as required by the Rules, served on Mr. Mwakilasa, the advocate for the iespondent, WILBERT MOSHI. On 14th November, 1981 Mr. Mwakilasa wrote to the District Registrar, High Court Mbeya, informing him that as Mr. MOSHI had not instructed him to oppose the appeal lodged by the Republic, he was unable to accept service of the notice and record of appeal. Accordingly, on 23rd November, 1981 the Sonior Deputy Registrar of this court directed theDistrict Registrar, High Court, Mbeya, to cause the·n¢~1ce an9 record of appeal to be served directly on the respondent, WILBER% MOSHI. On 29th September, 1982 WILBERT·MOSHI was duly served with the notice and record of appeal. However, the following day, that is, the 30th day of September, 1982 WILBERT MOSHI wrote a lette,r to the RC?gistrar of this court informing I. : 2· 'i' .t him that he had received ·the notice of hearing of the Republic 1 s appeal in this case but would be unable to attend the hearing of the f· appeal because he could not ~fford the fare and other expenses which he would have to bear if he were to attend the hearing of the appeal in Dar es Salaam. The rnateriai part of the letter, which is in Kisw~hili reads: ' "Ndugu Mhusika, Ninayo heshima kubwa kutuma barua hii katika ofisi yako, kukuarifu kwamba kuitwa shaurini uliyonitumia kupitia kwa Orficer in Charge Police Mbeya nimeipata lakini kufuatana na tatizo la uwezo wa kifedha nitashindwa kuhudhuria kikao hicho. Hata hivyo nirnejaribu kwenda Mahakama Kuu Mbeya kuornba rnsaada wa usafiri pamoja na rnatumizi wakanijibu kwarnba hawana fungu la kunisaidia. Ndipo wakanishauri ni~ndike barua katika ofisi yako". When the appeal by the Republic came up for hearing on 11th 9ctober~ 1982 Mro Mwipopo :drew ?Ur attentioh to the provisions of subrule (1) of Rule 13 which provides: · 73·.-(1) The appellant and the··respondenf shall be eintitled 11 : to be present a.~ the hearing._of_ the appeal; save that.an .. appellant or respondent who is in prison., other than an appellant under· sentence of death not represe·nted by an advocate, _shall, unless in any. particular case th~_court directs otherwise, be so entitled only on terms of payirg the expenses of his transportLand that of his escort' to·· and from.the court". Mr. Mwipopo then urged the court to proceed to hearing of the appeal f' J ~ > 1 • in respondent's· ab·se~ce.. He stated that subrule (6) of Rule 73 was his authority for' urging the'"court' ··so':'to do~· But as the court 1 had ,/ • • ~ -,, # ~ " i 1,•: ' °t I1 • ~ : ,. I : '." 1. ~- - ~.'... I some doubts ~hethe;- w~ could pr9perly proceed to.hear the app~a:J.: in • • ! • the absence of the respondent having regard ·to the' reason that 'the (. • " •• ': ' ~ ; ' • ~ • ■ •• • :• ~ \ • rcspon~~p't; had given for not_be~ng able to be...,present,at th~ },)earing of the ·appeal, we :1iw1·ted Mr .. _ Mwipopo to address us on ~this:·point. Mr. Mw1pop~ in a fo~~~ful submission argued that tlhe right to be presen't'·al: the hiiaring of an appealJwhich is given to the appellant and the respondent under subrule (1) of Rule ?3 is not an absolute' that one .. · He ·said that allLthe subruie ·s~ys· is that an appellant or · responden~ has a right to be PFesent a~. th~ h~aring of ._an f.lppeal, i£ he so wishes, but ·there . is n;t:hing in the Rule which makes'· it [. •. 1 mandat~ry for: ei~~r: the-·appellant~ or ;;the respondent. to do so, if he does not wish to be present or ror···any reason, he i 1s unable'. to : i. r· .- . ! .., ... , be present at the ~earing of the appeale " i With respect, we think there is a great deal of sense in Mr. Mwipopo's submission. The validity of Mr. Mwipopo's argument is, ..... . .. .., in our view,· underscore.ct by ·t;:he very provisions of subrule {l) of Rule 73, which, vyhile givin~fa>right to an appellant or'· respondent to be present at the hearing bf an appeal, goes on to ,provide that an appeliant or respondent who· .' is. in prison shall exercise his ; ;· . right to be present at the ~e~r!~g of an appeal only on terms of 1. ,.•l.~ T· paying the expenses of his trari~port and that of his escort to and ~ j.! , from the court. We do not read. in this subrule anything that would make the position of an appell~n~ or respondent who is not in prison . i; more favourable than that of his counterpart who is incarceratedo ,· On a proper reading of the subrule we cannot see·ahy· reasonable ground why a person - be he, an appellant or respondent - who is not in prison should be treated more favourably than another who in incarcerated. Thus, while it is not open to the court to deny a hearing to an appellant or re_spondent who is present at the hearing of an appeal, it is not the court's duty to fac~litate the appellant's or respondent's presence before. ib Th~ appellan·t or !:he respoh_dent, as the case may be·, has a right to be present at the he~~ihg of an appeal but his ability to exercise this right 'is, in our opinion, a matter which ., depehtls ort cl hurhber of :f ac:tor ~ over whic;h this court has no contr6Lo So long as the court ~s satisfied that a party to· an appeal has been served with a notice of hearing, we think ;this court ·need not concern itself with the reason why such a party fails to a_t1:end or to be present at the hearing of the appeal. The law, in any case, does not compel him to do so. We are fortified in this view by the provisions of subrule (1) of lule 67 which reads: "67--(1) An appellant or, where the appellant is the State, a respondent who does not intend to appear in • person or by advocate at the hearing of the appeal may lodge with the Regisrar or with the Deputy Registrar at the place where the appeal is to be heard a written statement of his arguments in support of or opposition to the appeal, as the case may be". Upon consideration of the matter we are satisfied that the right of'· the pre sent ·respondent to· be pre sent at the hearing of the appeal is not an absolute one, ·for, as it seems to us, were his rights in this regard absplute, we c;:annot conceive any sensible ground why the learned author of the Rules would have taken the trouble to provide for the alternative right to the appellant who ~ .- . does not wish to attet:'l<l in person or by adv9cate at the hearing of the appeal to lodge with the Registrar or his deputy a written statement of h:i.s a,rgurnents. in support of or opposition to the appeal, as the case may be. - ,..,. ..J,. • i 4 . In.the result we direct that this appeal should p~oceed to hearing immediately. DATED at DAR ES SALAAM this 4th day of November, 1982 •. (Y. M. M. Mwakasendo) J1JSTICE QF APl?EAL . (LoM•. Makarne) JUSTICE OF APPEAL rl;i•, ,.}(isa~gq) .':;· f·.'· (R .. . . .. , .nx c •-" '. JUSTICE OF APPEAL I certify that this is a true copy of the original • . 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