Abdallah Hamisi v. Republic, Cr app no 26 of 2005 (Rape)

IN THE COURT OF APPEAL OF TANZANIA

AT TANGA

(CORAM:    MAKAME, J.A., MUNUO, J.A., And KAJI, J.A.)

CRIMINAL APPEAL NO. 26 OF 2005

ABDALLAH HAMISI………………….……. APPELLANT

VERSUS

THE REPUBLIC …………………..……… RESPONDENT

(Appeal from the conviction and sentence

of the High Court of Tanzania at Tanga)

(Longway, J.)

dated the 22^nd day of October, 2002

in

Criminal Appeal No. 27 of 2001

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JUDGMENT OF THE COURT

23 June & 5 July 2006

KAJI, J.A:

        In Lushoto District Court Criminal Case No. 38 of 2000, the appellant, Abdallah Hamisi, was convicted in absentia of rape contrary to Sections 130 (1) (2) (b) and 131 of the Penal Code Cap 16, as amended by the Sexual Offences (Special Provisions) Act, 1998.  He was sentenced to thirty (30) years imprisonment and 12 strokes.  He was also ordered to pay the victim of the rape PW1 Mwanaasha d/o Shaban Shs. 75,000/= as compensation.  He was alleged to have raped PW1 Mwanaasha d/o Shaban during the night of 23.4.2000, at Tewe Village, within the District of Lushoto, Tanga Region. 

His appeal to the High Court at Tanga was dismissed for want of merit.  Still undaunted he preferred this appeal in the Court.

        The record of the trial court shows that, on 9.8.2000 when the case was set down for hearing on 6.9.2000 the appellant who was out on bail, was present.  But on the hearing date on 9.8.2000 he was absent without notice.  His surety was also absent.  The hearing was adjourned till on 4.10.2000.  It was ordered that the appellant should be arrested.  On 4.10.2000, neither the appellant nor his surety was present.  Hearing was adjourned till on 6.11.2000, although five prosecution witnesses were already in attendance.  On 6.11.2000 three prosecution witnesses turned up but neither the appellant nor his surety was present.  The case proceeded to hearing under the provisions of Section 226 (1) of the Criminal Procedure Act, 1985.  The appellant continued to be absent and the case proceeded in his absence until conviction and sentence.

        About a month later the appellant was arrested and taken to the trial  court where judgment and sentence were read over to him, and the right of appeal explained.  The record does not indicate whether he was asked to account for his absence, and whether he had a probable defence on merit as provided for under Section 226 (2) of the Criminal Procedure Act, 1985.

        In the course of the hearing, the Court suo motu raised the issue of whether the correct procedure applicable when the court convicts an accused person in absentia as provided for under Section 226 (2) of the Act was followed.

For a better appreciation of the import of the said provision we hereunder reproduce it:

226 (1)    If at the time or place to which the hearing or further hearing shall be adjourned the accused person shall not appear before the court which shall have made the order of adjournment, it shall be lawful for such court to proceed with the hearing or further hearing as if the accused were present, and if the complainant shall not appear, the court may dismiss the charge and acquit the accused with or without costs as the court shall think fit.

(2)        If the court convicts the accused person in his absence, it may set aside such conviction upon being satisfied that his absence was from causes over which he had no control, and that he had a probable defence on the merit.

At this juncture we may pause and ask: What is the true meaning of this provision of the law (i.e. 226 (2)).  This question is not new in this Court.  Dealing with a more or less similar case like the one at hand, the case of Lemonyo Lenuna and Lekitoni Lenuna v. R (1994) TLR 54, the Court held that, when a court convicts an accused person in absentia, the court should exercise the discretion under Section 226 (2) of the Criminal Procedure Act in order to afford the accused person the opportunity to be heard on why he was absent and on whether he had probable defence on the merit.  In another more or less similar case which was decided after the Lemonyo case supra, the case of Marwa Mahende v. R,  Criminal Appeal No. 133 of 1994 (unreported), the Court reiterated its holding in the Lemonyo case and went further and said:

In our view the subsection is to be construed to mean that an accused person who is arrested following his conviction and sentence in absentia, should be brought before the trial court … The need to observe this procedure assumes even greater importance bearing in mind that by and large accused persons of our community are laymen not learned in the law, and are not often represented by counsel.  They are not aware of the right to be heard which they have under the sub-section, it is, therefore, imperative that the law enforcement agencies make it possible for the accused person to exercise this right by ensuring that the accused, upon his arrest, is brought before the court, which convicted and sentenced him, to be dealt with under the sub-section.

In the instant case we do not find anything to make us depart from the holding of the Court in the above cases.  We adopt a similar holding.

        Lastly, as pointed out earlier on, this issue of whether the trial court followed the correct procedure applicable when the court convicts and sentences an accused person in absentia, was raised by the Court suo motu .  One may ask whether it was proper for this Court to raise an issue of this nature suo motu which was not one of the grounds of appeal.  In the Marwa case supra the Court considered this too and said:

The issue of the trial magistrate not exercising his discretion under the sub-section was not a ground of appeal but was only raised by the Court in the course of the hearing.  Doubt was expressed as to the propriety of this move by the Court.  We think, however, there is nothing improper about this.  The duty of the courts is to apply and interpret the laws of the country.  The superior courts have the additional duty of ensuring proper application of the laws by the courts below.  In the instant case this Court is pointing out that the correct procedure as sanctioned by law, i.e. section 226 (2), as construed hereinbefore, was not followed, and that this should be put right.  We think that it was not only proper for this Court to adopt such a course, but that the Court had a duty to do so …

It is our firm view that this is the answer to the above posed question.

        In the final analysis, we are of the view that failure by the learned trial magistrate to exercise his discretion under the sub-section was fatal in as much as it thereby denied the appellant his fundamental right to be heard.  Such failure vitiated the proceedings subsequent thereto as was held by the Court in the Marwa  case supra.  In the end result, we set aside the proceedings and judgment of the High Court, and remit the case to the trial court with the direction that the appellant be brought before the trial court to be dealt with in accordance with the provisions of section 226 (2) of the Criminal Procedure Act.  The appeal is therefore allowed to this limited extent.

        DATED at TANGA this 5^th day of July, 2006.

L. M. MAKAME

JUSTICE OF APPEAL

E. N. MUNUO

JUSTICE OF APPEAL

S. N. KAJI

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

(S. M. RUMANYIKA)

DEPUTY REGISTRAR

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