DIRECTOR OF PUBLIC PROSECUTIONS v FONJA MATHAYO 1995 TLR 23 (CA)

 

DIRECTOR OF PUBLIC PROSECUTIONS v FONJA MATHAYO 1995 TLR 23 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Mnzavas JJA and Mfalila JJA B

CRIMINAL APPEAL NO. 126 OF 1993

November 28, 1994

(From the decision of the High Court of Tanzania at Arusha, Mroso, J.) C

Flynote

Criminal Practice and Procedure - Adjournment - Adjournments in trials before

subordinate courts - Trial court granting adjournment beyond aggregate of 60 days -

Whether proceedings are vitiated - Sections 225(4) and (5) of the Criminal Procedure

Act, 1985. D

-Headnote

The respondent was convicted by the District Court for shop breaking and stealing

contrary to s 296(1) of the Penal Code. On appeal, the High Court declared his trial a

nullity because the trial court had granted adjournments beyond an aggregate of 60

days contrary to s 225(4) and (5) of the Criminal Procedure Act, 1985. The Director of

Public Prosecutions appealed against that decision of the High Court.

Held: Breach of the provisions of s 225(4) and (5) of the Criminal Procedure Act,

1985, does not necessarily vitiate the trial unless it is shown that the accused person

has been prejudiced in his defence or that the adjournments did affect the substance

of the conduct of the trial.

Appeal allowed; case remitted to the High Court to consider the appeal on merit.

Case Infomation

Case referred to:

(1) John Joseph Onenge and Another v. Republic [1993] T.L.R.

Mono, for the republic

[zJDz]Judgment

Kisanga, J.A., delivered the following considered judgment of the court:

The respondent was convicted by the District Court for shop breaking and stealing

contrary to s 296(1) of the Penal Code. He was sentenced to three years'

imprisonment, with an order to compensate the victim of the offence in the sum of

Shs 691,600/= being the value of the property stolen from him. The respondent

appealed to the High Court which declared his trial a nullity by reason of a

1995 TLR p24

KISANGA JA

A breach of the mandatory provisions of s 225(4) and (5) of the Criminal Procedure

Act. It is against that decision that the Director of Public Prosecutions is now

appealing to this Court.

In this appeal the Republic was represented by Mr Mono, learned Principal State

Attorney, but the respondent was absent and unrepresented. When the appeal first B

came on for hearing on 21 October 1993 the Court was informed by the Registry that

the summons to the respondent was returned unserved. Upon Application by the

Republic, the hearing was adjourned to a later date in the Session to allow for the

prosecution to make another attempt to serve the C respondent. On 1 November

1993 the Court was informed that the summons to the respondent was returned

unserved with the endorsement on it to the effect that the respondent escaped upon

seeing the process server. Whereupon the Court directed process by substituted

service through publication of the notice of hearing D in the Uhuru newspaper. On

17 November 1994 during the current Session, the Court was informed by the

Registry that substituted service was duly effected through publication of the notice

of hearing in the Uhuru newspaper on 1 and 2 November, 1994. The Court took this

to constitute sufficient notice and proceeded to hear the appeal. E

Mr Mono filed and argued only one ground of appeal, the essence of which was that

the learned High Court judge erred in holding that a breach of s 225(4) and (5) of the

Criminal Procedure Act renders the trial a nullity. For this view he relied on the

decision of this Court in the case of John Joseph Onenge and Another v Republic (1)

involving similar facts. F

In the present case the learned High Court judge found that the trial court had

granted adjournments after the expiry of the aggregate of 60 days periods in terms of

the time frame stipulated under s 225 of the Criminal Procedure Act without the G

requisite certificates by the specified officers pursuant to paras (a), (b) and (c) of ss (4)

of that section. In the case of John Joseph Onenge and Another cited above, we held

that a breach of s 225(1) and (4) which did not effect the substance of the trial does

not render the trial a nullity. That principle equally H applies here. For, as in that

case, it has not been suggested that the granting of adjournments in the present case

prejudiced the respondent in his defence or in any way affected the conduct of his

trial.

Perhaps it is pertinent to note here that during the adjournments the respondent was

out on bail, unlike in the case of John Joseph Onenge and Another where the

appellants remained in remand I

1995 TLR p25

KISANGA JA

custody. So the principle here applies with even greater force, but the main point A

being emphasized is that the adjournments did not in any way affect the conduct of

the trial, the process by which the issue of the respondent's guilt or innocence was

determined.

At the same time we desire to make it quite clear that we do not in any way view

lightly breaches of the provisions of s 225 of the Criminal Procedure Act which have

been designed to protect and safeguard the liberty of the accused person in a criminal

case. B

Section 225 of the Act is an important provision for the safeguard of the basic rights of

an individual accused of a criminal offence. It is for that reason that we C renew our

call upon the magistracy to be more vigilant in the application of that section in order

to ensure that accused persons really enjoy the protection which the provisions of

that section seek to accord to them.

For the foregoing reasons we allow the appeal by the Republic and set aside the D

judgment of the High Court. In fairness to the High Court, however, we have to add

that our decision in the case of John Joseph Onenge and Another v Republic above

cited was handed down only after the judgment of the High Court in this case was

given. So that the learned High Court judge cannot have been aware of that judgment

before he delivered his own. We have every reason to think that had he seen that

judgment before he would have decided the case before him differently. E

The learned High Court Judge, having declared the proceedings of the District Court a

nullity, rightly refrained from considering the merits of the appeal before him, and

instead ordered a trial denovo. However, in the light of the decision we F have taken

of setting aside the judgment of the High Court, we remit the matter to that Court

with a direction that the Court now proceeds to consider the appeal on the merits. G

1995 TLR p26

A