19801017 TZHC Mbeya

- I - IN. TFE HIGH COURT OF .TANZMJIA A21 MBEYA APPELLATF JRISDICTION CRININIkL APPEAL NO. 132. OF 1978 (ORIGINAL CRIMINAL CASE NO. 11 OF 197 8 OF THE DISTRICT COURT OF MtJPINDI DISTRICT AT MAFIIGI1 ) HEZEKIEL MaITT.A . • . . . .•. . . . . . APPELLANT VERSUS REPUBLIC .... • ,,......... 00...I RESPONDENT JUDGMENT ShNATTA,J., - Mr Saffari, counsel for the Republic, has, if I may respeótfully say so, argued this .ppea1 gallantly, -but, in spite of hii attractive arguments in support of the lower court's decision,. I have reached the settled concitsion that it would not be right to uphold that decision. The ape1lant was convicted by the district court of Nufindi district on four counts of stealing by a person employed in public service, contrary to s, 265 and 270 of the Penal Code and was sentenced to a subs;antive term of three years' imprisonment, I will not go into the facts of the case. In view of the nature of the reason which has coinpell€:d me to disagree with Mr Saffari, it is unnecessary for me to embark upon that task, What I propose to do is to narrate, as briefly as possible, the history of the case before the trial commenced. The appellant appeared before the district court for the first time on January 27, 1978. After several mentions, the case car:e up for mention on April 179 1 978 , before Mr G. Kayaga, District Magistrate. What transpired in the .12 p. I ô'ótjo= on tht dar is meordOd; &G.. fol1ows " Accd - I. wrote a letter to my advocate, but 1 have riot received a repl I iequest for hearing date. Oder H 3/5/78. A R.I" About a week later - on April 25 to be more precise - the .case cane up before Mr Mi Sj M oz Nuhi, Resident Magistrate. After the learned rsideh magistrate had recorded the appellantts pleas of not guilty this is what followed in the courtroom, according to the record of the casdi "Aced: I had engaged an Advocate. My brother was dealing with this issue and I had informed him that the case was to cone for hearing on the 3rd May, 197 8 . He is not informed that the case is being heard today. I request the court to adjourn this case till 3/5/978 when my advocate will appear. P1!OSECUTOR Msanga The accused purports to have engaged Mr Mwaicingwe as his. Defence Counsel. But I have personally talked to Mwakingwe who told me that the accused's brother had previously requested Mr Nwakine to defend the accused but later on withdrew, taking even the instruction fees. The question of Mwakingwe being Advocate of the accused doesn't exist, accused should say if he has another lawyer. If the accused is in a position to pay for the expenses of the prosecution witnesses, and if in the opinion of the court what the accused says has something to contribute in the pursuit of justice, then. this is left to the court's discretion. Aced. inRg I still request the court to adjourn my case till 3/5/1978. I do not have the money for the Republic witnesses. Court: One of the witnesses has come all along from Musona, Mara Region, to adduce evidence and go back home to build the nation, he being a village manager. Due to infra- structural problems which have been created by cholera which itself has created quarantines, this court will lack reasoning if it lets go a witness who might not be able to get another chance of coning to adduce evidence, considering the ups and downs of cholera, and as the .13 3 - ocusd cannot foot the expenses of the witnéses shs 8001=, if we wrè to make them to stay on, I hereby rule that the case probeeds (the underscoring.at thö end Of the ruling is supplied). The appellant had lost the battle for adjothnment. The ti'iai hád., to oommence on that day. 1t did; To key witnesses gave evidene before the trial was adjourned to ?ay 3 1978 . On June 5; 19781, the trial ended The appellant s who was a clerical' officr. at the distriot court before his arrest, had riglit..tothe end of the trial no legal representation, He now coiplains that he was not afforded by the trial court a reasonable opportunity to be defended by a man learned in law. In my judent the cdrnplant is valid. I will give my reasons why I am of that view. In his ruling, cited above, he learned trial magistrate appears to have thought that the case was fixed for hearing on April 259 . 1978 . With unfeigned respect, he was v.rrong. As the portion of the proceedings I have cited in thi judent reveals the case was to come up for hearing on May 3, 197 8 . The plan referred to by the learned trial magistrate in his ruling is mentioned nowhere in the record of the case. It might well have been true, as was asserted by the prosecutor, that Mr Mwaking-ie had dedided not to offer, his services to the appellant, but was it not the duty of the learned trial magistrate to give an o?portunity to the accused ( or his brother) to engage another lawyer? Many a lawyer wOuld answer: "Yes," and I would nod my assent. In any event, the appellant was not even in the slightest deee responsible for the mistake of summoning the witness f:oLi Musoma to appear before the cotrt on April 25, Why thiould he have been punished for the sins of another or others? The cad3 should have been adjourned to May 3 - the date it was supposed tD come up for hearing - and the shs, 800/= expended by the State should have been recovered from the State employee who was responsible for the mess. . 0 0 0• — - 4 - Legal representation is recognised as at'ight in this ocutrg se6 s i 190 of the C±iraind.i Prooedure Code I iecognise, Of cOursé that the 1-ight is not an absolute one By his conduct the accused may be held or deemed to have waived the right, bi.it no couit should reach that concluion 1ighti. f I may cite from ny own judent I would read what t said in part in Criminal Apeâi No 175 of 1979 (tbeya registr), Alimasi Kalumbeta v Republic (unreported) " An accused person should not be deprived of his iight of legal representation unless Very cogent and exceptional reasons exist which warrant the taking of such a drastic measure. It is not merely in the interest of aôcused persons but it is also in the public interest that legal representation is recognised as a right. The importance whirth lawyers attach to justice being seen to be done camiot besacrificed on the altar of speed.tt I still adhere to those views. In my opinion the appellant in the case at the bar was not afforded a reasonable and fair oportunity to have a lawyer tdefend him. :?or that reason alone the appeal must be and is allowed 9 the convictions are quashed and the sentences imposed thereon are set aside. As the appellant must have already finished servinG his sentence, no order for his release is made. The Director of Public P±osecutionz is at liberty- if it must be pointed Out - to prosecute the appellant denovo. - - -- B. A. SANnTTA JUDGE. Delivered this 17th day of October, 1980, in the presence of Mr SafiThri, counsel for the Republic. B. A. SANATTL JUDGE.