CRIMINAL APPEALNO

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MUGASHA. J.A.. MAIGE. 3-A. And KHAMIS. 3.A.) CRIMINAL APPEAL NO. 380 OF 2019 THE DIRECTOR OF PUBLIC PROSECUTIONS.............................. APPELLANT VERSUS JANE CHARLES.................................. ................................. RESPONDENT (Appeal from the Ruling of the High Court of Tanzania at Mwanza) (Rumanvika, 3.) dated the 18th day of 3une, 2019 in Criminal Session Case No. 167 of 2015 JUDGMENT OF THE COURT 31st May & 5th June, 2024 MUGASHA. J.A.: The Director of Public Prosecutions (the DPP) has lodged this appeal against the Ruling of the High Court dated 18/6/2019 in which the respondent who was charged with the offence of Murder was discharged following the dismissal of the charge. This was after the appellant had paraded four prosecution witnesses and sought adjournment of the trial to another date due to absence of its witness. It is against the said backdrop, this appeal has been preferred and it is predicated on the sole ground of appeal as hereunder: i 1. THAT, the trial Judge erred in law and fact by dismissing the case and discharging the accused person. At the hearing, the appellant had the services of Messrs. Daniel Masambu and Ibrahim Salim, both learned State Attorneys. The respondent who was absent though served vide publication in Mwananchi Newspaper dated 18/5/2024, was represented by Mr. Steven Kitale, learned advocate. Following a brief dialogue with the Court, Mr. Daniel Masambu narrowed down his submission on the issue of the parties being denied the right to be heard before the High Court Judge dismissed the charge and discharged the respondent. On this, he argued that although the issue at stake before the High Court was a prayer for adjournment which was not objected to by the respondent's counsel, the learned High Court Judge raised and determined different issues without according the parties an opportunity to be heard. He pointed out, the issues raised by the learned High Court Judge included non-existence of witnesses and the unfaithfulness of the process server and ultimately, he invoked section 264 of the Criminal Procedure Act CAP 20 R.E 2019 to dismiss the charge and discharge the accused person. In this regard, it was the contention of the learned State Attorney that, since parties were denied the right to be heard which is fundamental and mainstreamed in the Constitution of the United Republic of Tanzania, 1977, (the Constitution) it was not proper to dismiss the charge and discharge the respondent He thus urged the Court to allow the appeal, nullify the impugned ruling and order the case file to be remitted to the trial court for it to continue with the trial. On the other hand, the respondent's counsel initially, did not support the appeal. However, following a brief dialogue with the Court on the fundamental right to be heard as embraced in the Constitution, on a reflection; he supported the appeal together with the submissions advanced by the learned State Attorney. Having carefully considered the record before us, the ground of appeal and submission of the learned counsel, the issue for our determination is the propriety or otherwise of the ruling which dismissed the charge and discharged the respondent in the course of trial. We begin with what transpired before the High Court and which resulted to delivery of the impugned ruling. On 30/5/2019, the appellant sought and was granted an adjournment of the hearing to the following day so that she could parade two remaining prosecution witnesses. 3 However, as the witnesses could not be procured, at the instance of the prosecution, the hearing was adjourned to 10/6/2019 so as to enable the remaining two prosecution witnesses to enter appearance and adduce evidence. On 10/6/2019, none of the two witnesses managed to appear and what ensued is evident at page 31 of the record of appeal as hereunder: " Ms. Angelina Nchalla, Senior State Attorney: We have no witnesses today. We pray for another adjournment to 12/06/2019." The respondent's counsel who had no objection to the prayer for adjournment, his response was as follows: "Mr. Mshongi advocate: no objection, However, we doubt if the prosecution are serious/ Much as last time i.e. 31.05.2019 they successfully prayed for a 10 days adjournment" After being addressed by the parties on the issue of adjournment, the learned trial Judge made the following order: ” Ruling on 14/06/2019. Accused further remanded." Part of the ruling of the learned High Court Judge at pages 45 and 46 of the record of appeal is as follows: " The Issue is whether a case which was, by consent adjourned and now comes up for hearing can, with no good cause be adjourned\ The answer is in the negative for five main reasons: - One; it is trite iaw that unless cogent reasons, worth being recorded and acceptable by any reasonable tribunal were assigned. No court should entertain unwarranted flimsy adjournments. Two; there was, on their part no complaint on proof o f insufficient notices to the intended witnesses, Three; no copy o f returned summons was presented\ Four; the prosecution neither wished to withdraw nor dose their case, Five; flimsy adjournments o f the like matters was no doubt breeding grounds for indefinitely pending cases in the court registers. It follows therefore that under the circumstances, justice o f the case would demand that the charges be dismissed and the accused be discharged." Ultimately, the learned trial Judge concluded and disposed of the matter as follows: " I will, in the end without hesitation hold that where there was sufficient notice, the intended witnesses did not appear but no copy o f returned summons was, under sections 259 and 263 o f the Criminal Procedure Act Cap 20 R.E2002 presented, leave alone endorsement and affidavit o f the process server, courts will always draw adverse inferences as under: - (i) That the intended witnesses were non existent, (ii) That the intended witnesses were no longer interested if not having quietly turned hostile. (Hi) That in the most unlikely event, God forbid the process server was compromised and or, for the reasons known to himself he just chose not to serve the witnesses. Like any orders, a notice o f hearing has never been meant to serve cosmeticpurposes. Any o f the three incidents happening, no doubt cases would indefinitely remain pending in court registers. As case managers, any assigned judges shall have, as hereby do, invoke section 264 o f the Criminal Procedure Act Cap 20 R E 2002. In the fine, the charges o f murder under section 196 o f the Penal Code Cap 16 R.E 2002 are in favour o f the accused dismissed. The accused is consequently discharged..." We are aware that the procedure in trials before the High Court is regulated under Part VIII of the CPA which prescribes the practice and 6 mode of trial. It is not in dispute that section 264 of the CPA mandates the High Court to regulate its own practice in the exercise of criminal jurisdiction having stipulated as follows: " The High Court may, subject to the provisions of this Act and any other written laws, regulate its own practice in the exercise o f its criminaljurisdiction." [Emphasis supplied] In terms of the bolded expression, the mandate of the High Court in exercising discretion in criminal jurisdiction is subject to not only other provisions of the CPA but also embraces other written laws which means that section 264 of the CPA is not a stand-alone provision. We are fortified in that regard because the words subject to the provisions o f this Act embrace the provisions of section 284 (1) of the CPA according to which, in the event of the absence of the witnesses, the High Court is mandated with power to postpone or adjourn proceedings in a criminal trial as per the following direction: " 284 (1) Where, from the absence of witnesses or any other probable cause to be recorded in the proceedings, the court considers it necessary or advisable to postpone the commencement of the trial or to adjourn any trial, the court may from time to time postpone or adjourn the trial on such terms as it thinks fit for such time as it considers reasonable and may, by warrant, remand the accused person to a prison or other place o f security." [Emphasis supplied] Given that, the prosecution prayed for an adjournment due to absence of witnesses and that is what was argued by the parties, at that stage it was incumbent on the learned trial Judge to limit his decision to grant or refuse adjournment. The issue of regulating the court's own procedure would perhaps come after deciding the issue of adjournment. In the premises, the learned trial Judge wrongly invoked section 264 of the CPA to dismiss the charge and discharge the respondent. Without prejudice and for the argument sake, even if the learned trial Judge wished to exercise discretionary powers in the matter before him, did he exercise the discretion judiciously? The answer is in the negative. We say so because; it is settled law that the discretion must be exercised judiciously and not arbitrarily. That apart, the law is settled on the general principles upon which an appellate court can interfere with the exercise of discretion of an inferior court or tribunal. This was considered in the case of cred o SIWALE VS the republic, Criminal Appeal No. 417 of 2013 relying on the case of MBOGO and ANOTHER VS shah (1968) EA 93 the Court said: " (!) I f the inferior Court misdirected itself; or (ii) it has acted on matters it should not have not have acted; or (Hi) it has failed to take Into consideration matters which it should have taken into consideration, And in so doing, arrived at wrong conclusion. Other jurisdictions have put it as "abuse o f discretion" and that an abuse o f discretion occurs when the decision in question was not based on fact, logic, and reason, but was arbitrary, unreasonable or unconscionable - See-PINKSTAFF VS BLACK & DECKTZ (US) Inc, 211 S. W361." In view of the stated principles on which judicial discretion can be interfered with, and what transpired before the High Court, it cannot be safely vouched that the learned trial Judge did exercise judiciously the discretion bestowed under section 264 (1) of the CPA to dispose of the matter. We are fortified in that regard because since the parties were heard on the subject of adjournment it was incumbent on the trial Judge to make a determination on the subject of adjournment and not otherwise. Thus, it was not open on him to suo motu raise and determine own issues without inviting the parties to address him as to why the case should not be dismissed in terms of section 264 of the CPA. Moreover, granting each party an opportunity to be heard in the proceedings embraces the principles of natural justice and addresses every question of fairness of the procedure or due process. This is crucial because natural justice is not merely a principle of common law, it has become a fundamental constitutional right under article 13 (6) (a) of the Constitution which includes the right to be heard before an adverse decision is made against any party as among the attributes of equality before the law See: MBEYA RUKWA AUTOPARTS AND TRANSPORT LTD VS JESTINA GEORGE MWAKYOMA [2003] T.L.R 25; EX- D .8656 CPL SENGA IDD NYEMBO AND 7 OTHERS VS THE REPUBLIC, Criminal Appeal No. 16 of 2018 and THE DIRECTOR OF PUBLIC PROSECUTIONS VA MUSSA LYAMHELO @ SEBA AKUJIWE AND ANOTHER Criminal Appeal No. 156 of 2015, MABULA LUHENDE VS REPUBLIC, Criminal Appeal No. 281 of 2014 (all unreported). In the latter case, confronted with a similar scenario in which the appellant was denied a right to be heard the Court observed as follows: " The right to a fair trial is one o f the cornerstones o f any just society. That is, it is regarded as a fundamentai safeguard to ensure that individuals are protected from unlawful or arbitrary deprivation o f their rights and freedoms." Given that, the learned trial Judge dismissed the charge and discharged the respondent without hearing the parties, this was an omission which occasioned a failure of justice as parties were not accorded a fair trial. In a nutshell, as the parties were denied the right to be heard, the resulting ruling cannot be spared on account of being a nullity. In the premises, we find the appeal merited and it is allowed. The impugned ruling and orders of the High Court dated 10/6/2019 are quashed and set aside. Consequently, we order the re-arrest of the respondent and placed in custody to await the trial. Meanwhile, the case file is remitted to the High Court for continuation of the trial from where it was last left in accordance with the law before another Judge. Given that the case was partly heard, the Judge who will be re-assigned the matter 11 should comply with the provisions governing continuation of the trials in partly heard cases. It is so ordered. DATED at MWANZA this 3rd day of June, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 5th day of June, 2024 in the presence of Mr. Daniel Masambu, learned State Attorney for the appellant / Republic through Video link from the Office of National Prosecution Service at Mwanza and Mr. Steven Kitali, learned counsel for the respondent, is hereby certified as a true copy of the original. 12