Fanuel Gabriel

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI (PC) CRIMINAL APPEAL NO 9511 OF 2024 (Arising from the decision of the District Court of Babati in Criminal Appeal No. 12 of 2024, Originating from Criminal case No 16 of 2023 at Bashnet Primary Court) FANUEL GABRIEL........................................................................................ APPELLANT VERSUS FELISTER PETRO..................................................................................... RESPONDENT JUDGMENT 10,h June, and ll,h July. 2024 MIRINDO, J.: Fanuel Gabriel brought a charge of criminal trespass against Felister Petro before Bashnet Primary Court in Babati District within Manyara Region. At the conclusion of the prosecution case, the trial magistrate ruled that Felister Petro had no case to answer as the charge of criminal trespass lodged under section 299 of the Penal Code [Cap 16 RE 2022] was untimely. On appeal by Fanuel Gabriel, the appellate Babati District Court upheld this finding and in addition held that the charge was defective. On a further appeal to the High Court, both findings were overruled with an alteration of the finding of no case to answer with that of case to answer. This Court remitted the case for defence hearing before another magistrate in Bashnet Primary Court. The Bashnet Primary Court proceeded with defence hearing, convicted Felister Petro of criminal trespass and sentenced her accordingly. 1 Felister Petro challenged her conviction before Babati District Court on five grounds all of which come down to two complaints: (i) her conviction was against the weight of evidence, and (ii) the proceedings before the trial court were marred by various procedural irregularities. The appellate District Court in the course of composing judgment, ignored both complaints upon being satisfied that there was a question of law to be dealt with. The District Court posed the issue of validity of the charge of criminal trespass and held that as the charge referred to section 299 of the Penal Code only, it was defective. Under the circumstances of this case, a proper charge of criminal trespass lay under section 299 (a). For this reason, the District Court quashed the conviction and set aside the sentence. Upon this decision of the appellate Babati District Court, the appellant, Fanuel Gabriel, is again before the High Court. The learned counsel, Mr Festo Jackson, advocated for the appellant before this Court and the two courts below. After ordering the appeal to be argued by way of written submissions, the appellant, in his written submission sought leave of this Court to abandon the second ground of appeal in his petition of appeal that contained two grounds of appeal. Arguing for the remaining ground of appeal, the learned counsel, contends that parties were denied the right to be heard when the appellate District Court raised and determined suo motu the issue of the defective charge. The learned counsel reiterated that the right to be heard is a constitutional right as reaffirmed in Mbeya-Rukwa Auto-Parts and Transport Ltd v Jestina George Mwakyoma [2003] TLR 251. Mr Jackson, learned counsel, concluded that the approach taken by the appellate District Court amounted to an injustice as was held in Independent Power Tanzania Ltd 2 and Standard Chartered Bank (Hong Kong) Ltd (Civil Revision 1 of2009) [2009] TZCA 17. In opposition of the appeal, the respondent, Felister Petro, contends that the first appellate court was authorised to re-evaluate the evidence before the trial court and correct any error of law it may have committed. I have no doubt that this is a correct position of the law which was however misapplied in the circumstances of this appeal. The realisation by the appellate Babati District Court that the charge of criminal trespass was defective during judgment writing was right though belated. It was right because an appellate court is entitled to take judicial notice of all questions of law affecting the appeal in question. This realisation was belated as at that stage parties had concluded their written submissions. It is a principle of law that whenever an appellate court takes notice, or rather raises an additional issue, it is bound to resummon the parties and hear them on that issue. In Marwa Mahende v R [1998] TLR 249, the accused who had jumped bail was convicted and sentenced in absentia, of robbery with violence. On a further appeal against conviction to the Court of Appeal, the Court of Appeal raised the issue of the appropriateness of the accused’s conviction and sentence in absentia. It pointed out that it is the duty of an appellate court to “apply and interpret laws” if it accords parties an opportunity to be heard. The approach taken by the appellate District Court was a procedural misstep that occasioned failure of justice. To make matters worse, in the instant appeal, the appellate District Court had no authority to determine the validity of the charge of criminal trespass. 3 As mentioned earlier, this Court resolved the issue of validity of the charge in the course of determining the original appeal against the finding of no case to answer. This Court directed defence hearing on the premise that the charge was valid. It was not open to either the Bashnet Primary Court or the appellate Babati District Court to pronounce on the validity of that charge. Nor is it open to me on this appeal to decide on that issue. While the Bashnet Primary Court and Babati District Court are bound by that finding on the validity of the charge of criminal trespass, this Court is functus officio to make such determination again. In so far as the appellate Babati District Court assumed jurisdiction to re-determine the validity of the charge of criminal trespass, its finding is contrary to the law and cannot be allowed to stand. It follows that this second appeal is allowed and that the first appeal before Babati District Court remains undetermined. It is hereby ordered that the case file be remitted to Babati District Court for hearing of the pending appeal within thirty days from the date of the delivery of this judgment., and parties be re-summoned for hearing as such. It is further ordered that the appeal be heard by a different magistrate and the two magistrates at Babati District Court who originally dealt with this case be excused from its determination. It is so ordered. DATED at BABATI this 5th day of July, 2024 F.M. MIRINDO JUDGE 4 • th • Court: Judgment delivered in chambers this 11 day of July, 2024 in the presence of Mr. Festo Jackson, appellant’s counsel and in the presence of the respondent in person. F.M. M INDO JUDGE 11/7/2024 5