20170317 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM CRIMINAL APPEAL NO. 237 OF 2016 1. LAURENT S/O MBANGU.,. ............................ APPELLANT 2. SE LEMAN SAID ...........................................APPLICANT

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

JUDGMENT MURUKE, J. The two appellants were charged and finally convicted for robbery with violence and sentenced to lSyears imprisonment, on 28 August 2012, in Criminal Case No. 26 of 2009 of Mahenge district court at Mahenge. Being dissatisfied, they filed joint memorandum of appeal, raising three grounds of appeal. On all the three grounds, appellants complained lack of evidence to ground conviction. On the date set for hearing appellants were . in ~ " person while respondent was represented by Mwasiti Athumani learned State Attorney. 1 ~ -• -• -c•• ---•h- • - -- -- • ~ - •---·---- •- -- - • - ..:,_,:;_. '•-+=F'f ::.: .;;;:..- - - - -- •- - __ --=----.- , ---- - -- ---· - --- ..- . - ---·- ··-:- - .. ----- ·-...,,,.,_.- _...*- ·- -- ..... - \ .,, The two appellants requested the court to adopt their grounds of appeal as their submission in support of the appeal. Their prayer were accepted by the court after receiving no objection from the respondent counsel. Perusal of the lower court records reveals that, after closure of prosecution case, appellant were supposed to defend themselves on 26/01/2010. They both did not appear, because they Jumped bail. After more than two years, Court entered Judgment in their absence on 28/08/2012. Record is silent, as to what happened, to the accused now appellant before this court since 28/08/2012 when court read Judgment in their

absence. Appellants filed their appeal through prison officer incharge. This shows that, they were arrested and taken to prison to serve sentence of 15 years, on a judgment read in their absence. Learned State Attorney was quick to point irregularity that, after arrest the appellant were supposed to be taken back to the trial court in terms of section 227 (b) of the CPA which reads. Where the accused appears on any subsequent date to which the proceedings may have been adjourned under this section on the day or days on which the accused was absent shall not be invalid by reason only of his absence. 2 - -----.;._... -X-. ee:.. - - - .:.-_~ ----- - ,_..-..,.___ - - - --·- -. --- .... ---- .... - - - - • • ... ' .. ' ·~ :.~ -~ , .. •. . "".:: •. : . ~ . . ... ... - .-....... -- .. .. _........ . - --~ ..... •' ...... ·- +·. , - . ~ - The right to be heard fully is therefore protected under the Article 13 (6) (a) of the Constitution of the United Republic of Tanzania that insist any person must be afforded a fair hearing and the right of appeal against any decision on his rights. The Kiswahili version of the Constitution read as follows. "(6) kwa madhumuni ya kuhakikisha usawa mbele ya sheria, Mamlaka ya Nchi, itaweka taratibu zinazofaa au zinazozingatia m1s1ngi kwamba wakati haki na wajibu wa mtu yeyote vinahitaji kufanyiwa aumuzi wa mahakama au chombo kinginecho kinacdhohusika

basi mtu huyo atakuwa na haki ya kupewa fursa ya kusikilizwa kwa ukamilifu na pia haki ya kukata rufaa au kupata nafuu nyingine ya kisheria kutokana na maamuzi ya mahakama au chombo kinginecho kinachohusika". The official translation of the Article is: "(6) To ensure equality before the law, the state authority . shall make procedures which are appropriate or which take into account the following principles namely: 3 - ·-····•,..,.....,..._.. ~-- --·--· . -::-:;,-~,---- . - ... _ . ··-----. ~---~--~- - . --~ . When the rights and duties of any person are being determined by the court or any other agency, the person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned". It follows therefore in my view that, in this appeal, upon arrest the appellants should have been asked to explain why they did not appear on the days the case had been adjourned and as to whether they had probable defences on merit. If the trial court had carefully studied the record, they would have discovered that between the date the applicants had been advised of their rights ·to enter their defence and the date of Judgment. The case had been adjourned for two years and 7 months. Since section 227 of the Criminal Procedure Act confers discretionary powers to the trial court, It is doubtful whether such

powers had been · judiciously exercised in the circumstances. In view of all the serious irregularities pointed out above, I agree with Mwasiti Athumani learned Senior State Attorney that t:his is a fit case to quash the conviction. Next question, is should the court order re-trial? The position of the law is that, in ordering so, the court must always have regard to the questions whether 4 ., __ " ~--~---~-·- the trial was defective, whether the interest of justice so requires and whether the order won't prejudice the accused. In FATEHALI MANJI v THE REPUBLIC [1966] 1 EA 343, the court held at page 344: " ... in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause an injustice to the accused person." Likewise, it was held in AHMEDI ALI DHARAMSI SUMAR v REPUBLIC [1964] 1 EA 481

at page 483 that: 5 -_::,- .- . -'-------- -::..~,r.,-:, ----· ~,,_-~-- . ·-------~ --- . -- - - ·- - -----:--- ... t ---- --- · ·- ---· -- ----=- ""~ - ~ - - ----- z: - ----· . - - =~-- • "Each case must depend on the particular facts and circumstances of that case but an order for re-trial should only be made where the interests of justice require it, and should not be ordered where it is likely to cause an injustice to an accused person." I have considered prosecution evidence, it is not enough to ground conviction. So, ordering retrial will cause injustice to the appellants. In my opinion, justice in this case demands immediate release of the appellants. The appellants conviction is quashed and the un-served part of their sentence is set aside. The appellants unless lawfully held, are forthwith set at liberty. It is so ordered ,::~,ttSYHft·>:, ,i~-;,,,,--:·--~,_-~.t:.\ f!i'( , -~ - )-~-3~\f\z z\ • G• \\y ~ >t \l~ )~1 \-,' ,-:, JJf'?', c1 I .&ar/~:/ JUDGE ' ..__ _,/ ...l // ~~~';;:"-:,__~.<-~;~;{::-· 17/3/2017 Judgment delivered in the presence for the appellants and Mwasiti Athuman learned State Attor. ey for the respondent. 6 . ::..:·~~-:--;. _- - .... ,.·;~ ·--~•- •·· -~~-;'~:~-:~-:4~~~~: _~;-:_;_··~c~::-~;~.. - ----- . .- -·-