IN THE COURT OF APPEAL OF
AT
ARUSHA
(CORAM: MROSO, J.A., KAJI, J.A., And RUTAKANGWA,
J.A.)
CRIMINAL
APPEAL NO. 132 OF 2004
DISHON
JOHN MTAITA ……………………………..… APPELLANT
VERSUS
THE
DIRECTOR OF PUBLIC PROSECUTIONS .… RESPONDENT
(Appeal
from the Judgment and Order of the
High
Court of Tanzania
(Mchome,
J.)
dated
the 11th day of February, 2002
in
HC
Criminal Appeal No. 60 of 2000
------------
JUDGMENT
OF THE COURT
9 & 15 October
2007
RUTAKANGWA,
J.A.:
The
appellant’s case is a perfect vindication of the old English adage which
says: “More haste less speed”.
We shall shortly demonstrate why we
are saying so.
The
appellant was convicted by the District Court of Moshi of the offence of rape
contrary to sections 130 (1) (a) and 131 (3) of the “Sexual Offence Special
Provision Act No. 4/1998”. He was
sentenced to life imprisonment. Being
aggrieved by the conviction and sentence he appealed to the High Court at
Moshi. In his seven-point memorandum of
appeal he unequivocally expressed his desire to be present at the hearing of
his appeal. The appeal was assigned to
Mchome, J. on 25/08/2000. On the same
day it was ordered that the appeal be mentioned on 10/10/2000 and the parties
be notified.
On
10/10/2000 the appeal came up for mention before Mchome, J. While the appellant was absent, the
respondent Republic was represented by Mr. Mwaimu, learned Senior State Attorney. The learned appellate judge then ordered as
follows:-
“Order: Written submission by 4/11/2000. Mention 21/11/2000”.
No submission was filed at all. Instead the appeal was adjourned on a number
of occasions, and each time the matter was called on for mention the appellant
who was serving his prison sentence was absent.
On 14/09/2001 the High Court (Mchome, J.) fixed the appeal to come up
for hearing on 9th November, 2001.
As the appellant was not present, the learned judge ordered that he be
duly notified of the date of hearing.
When the
appeal was called on for hearing on 9th November, 2001, the
appellant was absent, but Mr. Kakolaki, presumably a State Attorney (as the
record does not show his designation) was present representing the
Republic. The record of the High Court
also does not show whether the appellant had been served or not. Without much ado, Mr. Kakolaki addressed the
Court supporting the conviction of the appellant and the sentence imposed on
him. The learned appellate judge
reserved his judgement. It was to be
delivered on 24th January, 2002.
The judgement was probably delivered on 11th February,
2002. The appeal was dismissed in its
entirety, again in the absence of the appellant. We have used the word “probably”
deliberately, because it is only dated 11th February 2002, but the
record does not show the exact date when the same was delivered.
When the
appellant eventually became aware of the dismissal of his appeal on 2nd
January, 2003, through his relative Peter Kiwale, he was aggrieved. By that date, however, he was patently time
barred to lodge a notice of appeal.
Through the services of Mr. Maro, learned advocate, he filed
Miscellaneous Criminal Application No. 4 of 2003 in the High Court at Moshi
applying for extension of time to file a notice of appeal and for leave to
appeal out of time. The application was
heard by Mmila, J.
In a well
reasoned ruling the learned judge found it as an established fact that the
appellant’s appeal had been heard and determined in his absence without being
served with any notice of hearing. The
learned judge also aptly observed that:-
“The record is very silent as to why the hearing had to
proceed in absentia”.
He was, therefore, of the settled view that this
offended the “audi alteram partem”
rule of natural justice. Obtaining
guidance from the decisions of this Court in the cases of Mbeya-Rukwa Auto Parts & Transport Limited vs Jestina George Mwakyoma, Civil Appeal
No. 45 of 2000 (unreported) and The
Principal Secretary, Ministry of Defence & National Service vs Devram Valalmbhia [1992] T.L.R. 185,
the learned judge found this violation of the rule of natural justice, to be a
point of law justifying him to grant the orders sought in the application. Leave to file a notice of appeal to this
Court out of time was accordingly granted.
Hence this appeal which was duly instituted on 6th April,
2004.
The appellant,
through the same Mr. Maro, has come to this Court with only one ground of
appeal. The same reads as follows:-
“That the learned first appellate judge erred in
entertaining and disposing the appeal without according the appellant a
right/opportunity to be heard”.
Mr. Maro
represented the appellant and Mrs. Neema J. Ringo, learned State Attorney,
represented the respondent Republic at the hearing of the appeal. The respondent Republic did not oppose this
appeal.
With a
legion of authorities supporting his cause, Mr. Maro was brief and precise in
his submission urging us to allow this appeal.
He invited us to appreciate the naked fact that the appellant had
plainly indicated his desire to be present at the hearing of his appeal in the
High Court. That being the position, the
High Court, in terms of section 365 of the Criminal Procedure Act, (the Act)
was duty bound to cause notice to be given to the appellant of the time and
place at which his appeal would be
heard, he argued. He also referred us
to section 366 (2) (a) of the Act which provides that “an appellant whether in custody or not shall be entitled to be present
at the hearing of an appeal”. As the
appellant was not informed of the day and place at which his appeal would be
heard and the same was heard and determined without him being heard at all, he
was condemned unheard, he contended.
Failure to hear the appellant vitiated the entire proceedings in the
High Court and its judgement, he concluded.
He urged us, therefore, to allow the appeal, quash and set aside the
High Court judgement and order a re-hearing of the appeal by the High
Court. In support of his position he
referred us to two cases decided by this Court.
These are:-
(a)
Francis
Kwaang Musei vs
Honourable W.P. Slaa & Others, Civil Application No. 2 of 1999
(unreported) and
(b)
The
D.P.P. vs
Sabina I. Tesha & Others [1992] T.L.R. 237.
On her part, Mrs. Neema, as already
indicated, did not oppose this appeal.
As the appellant was denied his fundamental right to be heard by the High
Court, she asserted, the appeal should be allowed as proposed by Mr. Maro and
the High Court be ordered to re-hear it in accordance with the provisions of
the law.
In view of the clear position of the
law, this appeal should pose no difficulties.
The undisputed facts clearly establish that contrary to his express wish
and the mandatory provisions of the law (e.g. the C.P.A.) the appellant was
condemned unheard by the High Court, for no reason at all, be it justifiable or
unjustifiable. May be the High Court was
more concerned with a speedy disposal of the appeal without regard to both the
natural, statutory and constitutional rights of the appellant to be heard. If that were the case, that would be a very
dangerous trend which cannot be condoned by this Court. It is anathema to the concept of the rule of
law. As pointed out by both learned
counsel in this appeal, the right to be heard when one’s rights are being
determined by any authority, leave alone a court of justice, is both elementary
and fundamental. Its flagrant violation
will of necessity lead to the nullification of the decision arrived at in
breach of it. Hence the impeccability of
the earlier referred to saying of “More
haste, less speed”.
That is why this Court unequivocally
held in the case of the D.P.P. vs S. I. Tesha (supra) that a denial of a
right to be heard in any proceeding would definitely vitiate the
proceedings. But the Court went further
in the Mbeya-Rukwa Auto Parts &
Transport Limited case (supra) and definitively held that:-
“In this country natural justice is not merely a
principle of common law; it has become a fundamental constitutional right. Article 13 (6) (a) includes the right to be
heard amongst the attributes of the equality before the law, and declares in
part:
(a)
Wakati
haki na wajibu wa mtu yeyote vinahitaji kufanyiwa uamuzi na Mahakama au chombo
kinginecho kinachohusika, basi mtu huyo atakuwa na haki ya kupewa fursa ya
kusikilizwa kwa ukamilifu”.
In yet another case, Abbas Sherally & Another Vs Abdul
S.H.M. Fazalboy Civil Application No. 33 of 2002 (unreported) this Court
did not hesitate to hold that:-
“The right of a party to be heard before adverse action
or decision is taken against such a party has been stated and emphasized by the
courts in numerous decisions. That right
is so basic that a decision which is arrived at in violation of it will be
nullified, even if the same decision would have been reached had the party been
heard, because the violation is considered to be a breach of natural justice”.
This decision was followed very recently by the Court in
the case of ECO-TECH (Zanzibar
In the
circumstances of this case, there was no justification at all for the High
Court to hear and determine the appellant’s appeal without affording him
opportunity to be heard. Consistent with
settled law, we are of the firm view that the decision of the High Court
reached at in violation of the appellant’s constitutional right to be heard
cannot be allowed to stand. It was a
nullity. It is accordingly quashed and
set aside. The High Court is directed to
re-hear the appellant’s appeal in accordance with the dictates of the law.
In fine,
the appeal is allowed.
DATED at ARUSHA this 15th day
of October, 2007.
J. A. MROSO
JUSTICE
OF APPEAL
S. N. KAJI
JUSTICE
OF APPEAL
E. M. K. RUTAKANGWA
JUSTICE
OF APPEAL
I certify
that this is a true copy of the original
(I. P. KITUSI)
DEPUTY
REGISTRAR
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