eva temotheo ernest v republic 2023 tzhc 20423 21 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

TABORA DISTRICT REGISTRY

AT TABORA DC. CRIMINAL APPEAL NO. 10 OF 2023 (Originating from Igunga District Court in Criminal Case No. 125 of2020) EVA TEMOTHEO @ ERNEST................................. APPELLANT

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

RULING Date of Last Order: 31/7/2023 Date of Ruting: 21/8/2023 KADILU, J, In this first appeal, the appellant, Eva Temotheo @ Ernest is challenging the decision of the District Court of Igunga in Criminal Case No. 125 of 2020. Before the trial court, the appellant was charged with the offence of grave sexual abuse. According to the charge sheet, she was charged under Section 138C (1) (2) (b) of the Penal Code, [Cap 16 R.E 2019]. It was alleged that, on 19th July 2020, the accused during day time at Elimu Street within Igunga District in Tabora Region, for sexual gratification did grave abuse to a child of two years of age. The appellant pleaded not guilty, hence the case proceeded to full trial. The appellant was released on bail, but she absconded and the trial continued in her absence. At the end of the trial, she was convicted and sentenced to serve ten (10) years imprisonment, six strokes and pay compensation of Tshs. 300, 000/= to the victim. That decision aggrieved the appellant and she decided to appeal to this court on the following grounds: i 1. That, the trial court Magistrate erred in law and facts for deciding the case in the appellant's absence despite the fact that she had a good cause of absence.

2. That, the trial court Magistrate erred in law and facts for convicting the appellant without giving her a chance to defend.

3. That, the trial court Magistrate erred in law and facts to convict the appellant without the prosecution side proving the case beyond reasonable doubt.

4. That, the trial court Magistrate erred in law and facts to convict and sentence the appellant to strokes against the mandatory prohibition under Section 3 of the Corporal PunishmentAct, [Cap. 17R.E. 2019]. It has to be noted at this juncture that, before this court called the appeal for hearing, it noticed that the appellant was convicted by the trial court in her absence. The court then invited the parties to address it on the issue raised by it suo motu. The aim was to give the parties the right to be heard on the point. This was also a means for promoting fair trial. The issue raised by the court and addressed by the parties was follows, whether the appeal is competent before this court considering the provisions of Section 226 (2) of the Criminal Procedure Act, [Cap. 20 R.E 2019]. Submitting in support of the point raised by the court, the respondent's Counsel added his other observation to the effect that, the appeal was filed out of time. Regarding the court's point on the tenability of this appeal, the learned State Attorney explained that, the remedy for expert decision under Section 226 of the Criminal Procedure Act is not an appeal, but filing an application to the trial court for expert order to be set aside. He cited the cases of Bernard Matutu vR., Criminal Appeal No. 13 of2018, Court ofAppeal of Tanzania at Mwanza, where it was held 2 that the High Court may

return a case to the trial court for expert decision to be set aside. The learned State Attorney submitted in addition that the appeal is time barred under Section 361 of the Criminal Procedure Act. He explained that the notice of appeal and petition of appeal are required to be filled within ten and forty-five days respectively. According to him, the impugned judgment was pronounced on 6/8/2021, notice of appeal was filed on 7/3/2023 without the appellant being granted an extension of time. He proceeded to file petition of appeal on 5/4/2023 which was far beyond the 45 days prescribed by the law. On his part, the appellant's Counsel conceded that the appellant was supposed to file an application for expert decision to be set aside by the trial court. She however submitted that the appellant can still be heard by this court by ordering the trial court to give the appellant her right to be heard. The basis of the learned Advocate's argument was that since the High Court has unlimited jurisdiction, it can still determine the appeal. On the point raised by the State Attorney, Advocate for the appellant informed the court that the appellant was granted extension of time by Hon. Amour, J. (as he then was) on 6/3/2023. Therefore, the appeal is well within time. In rejoinder, Counsel for the respondent submitted that he has no copy of the alleged extension of time. Regarding the point

raised by the court, he insisted that the appeal needs to be struck out for being incompetent before the court. I have keenly perused the record of the present appeal and found that the prosecution had charged and arraigned the appellant in the 3 district court to reply one indicated offence. During hearing of the case, two witnesses, PW1 and PW2 testified in the presence of the appellant. Then, she jumped bail and absconded the proceedings on diverse dates when the case was scheduled for hearing. On the 2/8/2021, after short conversations between the court and the prosecution, the case proceeded in absence of the appellant pursuant to Section 226 of the Criminal Procedure Act. On 6th August, 2021 the judgment was delivered and no further proceedings were recorded except an order committing the appellant to prison. The record does not show the reasons of absence despite the appellant's advocacy to the right to be heard which she respects at the appellate stage, but not during the trial. It is unfortunate the record is also silent as to when the appellant was arrested and brought to the district court. The law regulating these kinds of circumstances is Section 226 (2) of the Criminal Procedure Act. However, in applying the provisions of section 226 (2) of the Criminal Procedure Act, the Court thinks that the cardinal principle of affording opportunity to the parties to be heard

is not to be overlooked. For that reason, Section 226 (2) makes provision for the trial court to set aside a conviction of a person sentenced in absentia once the court is satisfied that the absence was due to the cause beyond the control of the accused. This accords to the accused person an opportunity to be heard in defence against the prosecution case made against him. In the present case, the proceedings do not show if the appellant was given a chance to show cause of her absence. He Advocate has not 4 either informed this court about the reasons which made the appellant abscond the proceedings during the trial. The Advocate only insists that the High Court has jurisdiction to determine the appeal since its jurisdiction is unlimited. The typed judgment of the trial court indicates that the appellant was granted bail, but she absconded. The right to be heard is a cornerstone principle of justice. The appellant should have been sought and afforded that opportunity. For this reason, the appeal is misplaced to this court because it is a rule of convenience that a case should be heard by the lowest court with competent jurisdiction to try it. That alone does not take away the inherent powers of the High Court. In the end, the appeal is struck out for being incompetent. If still interested, the appellant is at liberty to file an application to the trial court for setting aside exparte judgment and grant her an opportunity to be heard in accordance with the law. Right of appeal is fully explained. It is so decided. .. p^ IaDILU," MJ.

JUDGE 21/08/2023. Ruling delivered in chamber on the 21st Day of August, 2023 in the presence of Ms. Stella Nyakyi, Advocate for the appellant and Suzan Barnabas, State Attorney for the respondent. 5