DIRECTOR OF PUBLIC PROSECUTIONS v ESTON SELEMAN 1994 TLR 9 (CA)

 

DIRECTOR OF PUBLIC PROSECUTIONS v ESTON SELEMAN 1994 TLR 9 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Makame JJA, Kisanga JJA and Omar JJA

CRIMINAL APPEAL NO. 122 OF 1987 B

28 July, 1989

(From the conviction of the High Court of Tanzania at Tabora, Korosso, J) C

Flynote

Criminal Practice and Procedure - Sentencing - Sentence of conditional discharge and

order to pay compensation - Whether convict may be remanded until compensation

is paid. D

Criminal Practice and Procedure - Appeals - Failure of respondent to appear for

hearing after being served - Whether hearing may proceed in the absence of

respondent - Rule 72(6) of the Court of Appeal Rules 1979.

Criminal Law - Murder - Whether murder may be alleged without evidence of

killing. E

-Headnote

In the District Court of Tabora the respondent was charged with being in possession

of a firearm without a licence. He pleaded guilty and was convicted and sentenced to

a fine of Shs 90/= or eight F months imprisonment in default. There was no

indication as to whether or not he in fact paid the fine. The respondent was also

charged with causing grievous harm to which he pleaded not guilty. At the end of the

trial he was convicted and sentenced to a conditional discharge, and he was also

ordered to pay Shs 15,000/= as compensation to the person grievously harmed. The

respondent was G ordered to be remanded in custody until he pays the

compensation money.

The Director of Public Prosecutions appealed to the High Court against sentence,

praying for a custodial sentence and enhancement of the compensation.

At this point the High Court judge formed the opinion that the respondent should

have been charged H with murder contrary to s 195 of the penal code and quashed

the trial court proceedings and ordered the respondent's immediate arrest so as to be

tried for murder.

Meanwhile, the appeal by the DPP came to the Court of Appeal but could not

proceed because the respondent was absent and unserved. Next time again the

respondent did not appear though he had I been served.

1994 TLR p10

A Held:

(i) Where the respondent is served but does not appear it is permitted to

hear an appeal by virtue of Rule 72(6) of the Court of Appeal Rules, 1979.

(ii) Before the respondent's presence can be dispensed with under Rule

72(6), there must be B proof, as there is in the instant appeal, that the respondent

was made aware of the time and place at which the appeal would be heard;

(iii) Where the respondent fails to pay the compensation ordered the next

step would be to order distress, and only in default of distress is an accused person

liable to imprisonment; C the order for remand in custody until compensation is

paid was irregular;

(iv) A change of murder presupposes unlawful killing, but in this case there

was no killing at all, let alone an unlawful one.

Case Information

Appeal allowed: case remitted back to the High Court for the appeal to be heard on

merit complying with s 381 of the Criminal Procedure Act.

D No case referred to.

J Tendwa, for the appellant.

[zJDz]Judgment

E Makame, JA delivered the following considered judgment of the court:

This appeal by the Director of Public Prosecutions first came before this court in

November 1988 but it was not possible to be proceeded with because the respondent,

Eston Seleman, was absent and unserved. This time the respondent again did not

appear but it was possible to hear the appeal, and F we heard it, because he has now

been served and it is permitted to hear an appeal in such a situation by virtue of Rule

72(6) of Tanzania Court of Appeal Rules which provides:

G If on the day fixed for the hearing of an appeal the respondent does not appear

in person or by advocate the appeal shall proceed unless the court sees fit to adjourn

the hearing.

The above subrule must of course be read together with, and is subject to, Rule 72(1)

which H provides that `The Registrar shall cause notice to be given to the appellant

and to the respondent of the time and place of which an appeal will be heard' and

Rule 73(1) which says that both the appellant and the respondent shall be entitled to

be present at the hearing of the appeal. So that before the respondent's presence can

be dispensed with under rule 72(6), there must be proof, as I there is in the instant

appeal, that the

1994 TLR p11

MAKAME JA

respondent was made aware of the time and place at which the appeal would be

heard. A

This appeal has a back-drop which is out of the ordinary. In the District Court of

Tabora at Tabora the respondent was charged with being in possession of a firearm

without a licence to which he pleaded guilty and was fined Shs 90/= or eight months

imprisonment in default. There is incidentally no B indication as to whether or not

he in fact paid the fine, so those responsible may wish to follow up that matter.

The respondent was also charged with causing grievous harm to which he pleaded not

guilty. He C was duly tried and at the end of the trial he was found to have

committed the act. He got a conditional discharge but he was also ordered to pay Shs

15,000/= as compensation to the person he had emptied his muzzle gun on.

Thereafter, incidentally, the learned trial magistrate committed the illegality of

ordering the respondent to be remanded in custody until he paid the compensation

money. This was on 19 March 1985 and D the respondent was accordingly

remanded. Nine days later a prison officer, Cpl Kibira, apparently took some

initiative: He went to the trial magistrate and told him,

Your Honour the committal order is not clear as to what should be the fate of

the convict if the compensation is not E paid. For how long should the convict

remain in our custody?

The trial magistrate had the respondent brought before him on 1 April 1985 and

when the respondent F informed the court that his relatives were looking for the

money the magistrate further remanded him for fourteen days `to compel his

relatives to pay the ordered sum. If they shall fail to pay them an order for distress

shall be given'. G

The foregoing orders were irregular and it is distressing to note that the High Court

made no comment on them when the matter reached there, albeit on some other

issue, which we shall presently turn to. If the respondent failed to pay the

compensation ordered the next step would be to order distress. Only in default of

distress is an accused person liable to imprisonment, `for a term H not exceeding six

months unless such (costs or) compensation shall be sooner paid'. There is no question

of remanding him in custody to compel his relatives to pay.

The Director of Public Prosecutions appealed to the High Court complaining that the

case was not fit for a conditional discharge I

1994 TLR p12

MAKAME JA

A and that the compensation award was too small. The pubic prayed for a custodial

sentence and enhancement of the compensation. The matter was taken before

Korosso J on 26 February 1987 but the respondent was not in court. The State

Attorney asked for an adjournment so that the respondent B might be served. His

lordship did not grant the adjournment prayed for, instead he said:

It is true that under normal circumstances the respondent must be present at

the hearing of the appeal of this nature. But having gone on the evidence on both the

prosecution and the accused as recorded by the trial court and I having formed the

opinion that the respondent should in the first place have been charged with the

offence of C murder c/s 195 of the Penal Code, I find it unnecessary hearing his

evidence.

This must have been shattering to the learned State Attorney because not only was

the appeal not D heard but, more important, the victim Lucas Jacob the respondent

had shot at had not died and had in fact been PW1 at the trial. Little doubt that Mr

Nyabiri, the State Attorney said,

E As the court had decided to order that the respondent be charged with the

offence of murder I do not think I will have anything to submit to your Lordship.

When the learned judge eventually delivered the judgment on 2 March 1987 he

quashed the trial F court proceedings and indeed ordered the respondent's

immediate arrest so that he might be tried for murder.

Mr Tendwa, learned State Attorney before us, was quite brief. He pointed out what

the Director of G Public Prosecutions had gone to the High Court for and the

unexpected result he got. Mr Tendwa finally asked us to remit the matter back to the

High Court for the appeal to be heard.

There is no doubt that the High Court order was unusual and we think it was an

unhappy slip on the H part of the learned High Court judge: a charge of murder of

course presupposes an unlawful killing, whereas here there was no killing at all, let

alone an unlawful one. The Director of Public Prosecutions' appeal was not heard at

all and the respondent had no opportunity to respond to the issues raised. This appeal

must of necessity succeed. We accordingly allow the appeal and set aside the

impossible order. We remit the matter back to the High Court for the High Court to

hear the I appeal on

1994 TLR p13

merit after duly complying with the provisions of s 381 of the Criminal Procedure

Act. A

1994 TLR p13

C