CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA.

AT MWANZA ( CORAM: MUGASHA. 3.A.. MAIGE. J.A. And KHAMIS. J.A.^ CRIMINAL APPEAL NO. 387 OF 2019 THE DIRECTOR OF PUBLIC PROSECUTIONS............................. APPELLANT

VERSUS EMMANUEL FULA................................................................ RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mwanza) / CRumanvika. 3.1 dated the 18thday of June, 2019 in Criminal Sessions Case No. 172 of 2012

JUDGMENT OF THE COURT 7th & 10thJune, 2024 KHAMIS. J.A.: The Director of Public Prosecutions (the DPP), the appellant herein, is aggrieved by the decision of the High Court, Mwanza handed down during the course of trial of the respondents in Criminal Sessions Case No. 172 of 2012. In that case, Emmanuel Fula, the respondent herein, was charged with murder contrary to section 196 and 197 of the Penal Code, Cap 16, R.E 2002 (2023). The particulars of the offence were that, on 18th day of March, 2011, at Kahunda Village, Sengerema District, Mwanza Region, the respondent killed one Magreth D/o Samora Ghati. The initial trial was nullified by the Court and a fresh trial was ordered. The respective fresh trial commenced on 11thJune, 2019. When the matter came up for the first hearing on 11th June, 2019, the prosecution reported that it was not ready to proceed due to absence of witnesses. The learned State Attorney for the Republic sought an adjournment to sort out the issue. The learned defence counsel resisted the prayer asserting that, the prosecution was not serious. He moved the court to exercise its inherent powers to dismiss the case. Hearing was adjourned to 12th June, 2019. On that day, the learned State Attorney reported that, witnesses were not yet procured. She contended that, the Regional Crimes Officer (RCO Mwanza) was sorting out the matter and prayed for an

adjournment. The prayer was not resisted to by the learned defence counsel. However, the learned Judge fixed the matter for ruling on 14th June, 2019. In the ruling delivered on 18th June, 2019, the learned Judge dismissed the charge and discharged the respondent in terms of section 264 of the Criminal Procedure Act, Cap 20 R.E 2002 (2023) (the CPA) for the reason that, the prosecution had given flimsy excuse for an adjournment. Further, he reasoned that: mere non-appearance of witnesses in court is no cogent ground for adjournment; none of the parties pleaded short or insufficiency notices to witnesses; no single copy of returned summons was presented to the court; the prosecution neither wished to withdraw nor close its case; and; that, flimsy grounds of adjournments was a breeding ground for indefinite pending cases in court registers. The learned Judge went ahead to draw adverse inference against the prosecution thereby alluded that: the intended prosecution witnesses were non-existent; the witnesses were no longer interested with the case; the process server was compromised and for reasons known to himself had chosen not to serve the witnesses. He concluded that, like any other court order, a notice of hearing has never been meant to serve for cosmetic purposes. Aggrieved by the decision of the court, the appellant preferred this appeal citing one ground namely, the trial

Judge erred in law and fact by dismissing the case and discharging the accused (respondent). However, when hearing of the appeal was about to commence, with leave of the Court, the appellant invoked rule 73 (1) of the Tanzania Court of Appeal Rules, 2009 [the Rules] and presented the supplementary memorandum of appeal comprising of the following ground: "1. The trial Judge erred in iaw and fact by dismissing the case and discharging the respondent without giving parties the right to be heard on the issue as to whether the case can be adjourned or proceed with the hearing." At the hearing of the appeal, Mr. Daniel Masambu and Ms. Jaines Kihwelo, learned State Attorneys, appeared for the appellant. The respondent did not show up although was duly served by publication in the Mwananchi Newspaper of 18th May, 2024. Nonetheless, he was duly represented by Mr. Stephen Makwega, learned advocate. In support of the appeal, Mr. Masambu submitted that, there has been a denial of the right to be heard on the part of the appellant. He contended that, the decision under the microscope in this appeal has relied on issues that were not canvassed at the hearing. The learned State Attorney took us through the record of the High Court proceedings from 11th to 12th June, 2019. The case was adjourned only once before the trial Judge. During this period, the trial Judge had instructed the

prosecution to ascertain the situation on the ground and establish status of the notices issued to the witnesses. The prosecution had reported that, the RCO Mwanza was in the process of tracing the witnesses although he could not be contacted over the phone that morning. It was contended that, in dismissing the charge and discharging the respondent, the trial Judge introduced extraneous matters that were not part of the proceedings before him. The counsel drew our attention to page 125 of the record where the Judge concluded that, the reason for the adjournment was flimsy and casual. He asserted that, the conclusion was derived from five assumptions crafted by the Judge which were not a subject of submissions of the parties. Further, the counsel faulted the trial Judge for drawing an adverse inference against the prosecution based on three propositions that were not put forward by either counsel. He contended that, it was not open for the trial Judge to make a ruling on the adjournment whereas the prayer was not objected to by the learned defence counsel. The learned State Attorney submitted that, the appellant has been prejudiced for being condemned unheard and urged us to allow the appeal so that, the trial can resume from the stage it ended. On the other side, Mr. Makwega did not take up issues with the appeal. He contended that, in reading the record, he found out that,

the appellant was denied the right to be heard before an adverse inference was drawn by the trial Judge. He submitted that, had the Judge exercised his discretion judiciously, he would have arrived at a different finding. We have considered the learned counsel submissions, the impugned decision of the High Court and examined the entire record of appeal. The question for our determination is whether the trial Judge was justified in dismissing the charge and discharging the respondent without affording the parties the right to be heard. The circumstances of this appeal are somehow similar to the recently decided case of the Director of Public Prosecutions v. Shitula William & Peji Ng'wenhuwa Ndege, Criminal Appeal No. 381 of 2019 [unreported]. In resolving the issue on denial of the right to be heard, we directed our minds to the minimum standards for fair trial as discussed in Mfaume S/o Daudi Mpoto & Others v. Republic [2023] TZCA 17568 [31 August 2023] and; Kabula D/o Luhende v. Republic, Criminal Appeal No. 281 of 2014 [unreported] and recapitulated the law that, any court, tribunal or authority having power to affect the rights, interests or privileges or legitimate expectations of a person is bound to hear that person before exercising its power. It is glaring that the subject before the trial court was adjournment and this is what parties submitted on. However, instead of

deciding on adjournment, the trial Judge suo motu raised different issues which he determined without hearing the parties. Such issues range from what transpired during committal on witnesses' statements, non-existent prosecution witnesses, the process server being compromised and the case being a backlog. In a conclusive statement, the trial Judge stated that, justice of the case demands the charges be dismissed and the accused discharged. That conclusion, like those stated before, was arrived at without affording parties an opportunity to be heard. The right to be heard is a cardinal principle of our legal system and it is enshrined under article 13 (6) (a) of the Constitution. It is settled law that, a fair trial encompasses, first and foremost, strict adherence to the rules of natural justice, whose breach would lead to nullification of the proceedings. In the circumstances, we are inclined to agree with the learned counsel that, parties were denied opportunity to be heard. This was a serious omission which occasioned a failure of justice. Before dismissing the charge, it was incumbent on the trial Judge to invite parties to address him as to why the case should not be dismissed under section 264 of the CPA. For the above reasons, this appeal is allowed. We accordingly quash the impugned ruling and the order of discharge. We order that, this matter be sent back to the High Court for retrial before another Judge as it was not heard on merits. Meanwhile, the respondent be re-arrested and remanded pending trial. DATED at MWANZA this 10th day of June, 2023. S. E. A. MUGASHA

JUSTICE OF APPEAL I. J. MAIGE

JUSTICE OF APPEAL A. S. KHAMIS

JUSTICE OF APPEAL The Judgment delivered this 10th day of June, 2024 in the presence of Ms. Revina Tibelangwa, learned Principal State Attorney for the appellant / Republic and in the absence of the respondent, is hereby certified as a true copy of the original. 8