JAIROS SAKUZI v MCHEMWA MNYAMBUYU 1994 TLR 21 (HC)

 

JAIROS SAKUZI v MCHEMWA MNYAMBUYU 1994 TLR 21 (HC)

Court High Court of Tanzania - Dodoma

Judge Maina J

CRIMINAL APPEAL NO. 19 OF 1990 H

19 May, 1992

Flynote

Criminal practice and procedure - Natural justice - The Right to be heard - Person

acquitted by trial court is convicted by appellate court without being heard -

Whether proper.

Magistrate's Courts - Appellate jurisdiction of district court - I

1994 TLR p22

A Whether district court as an appellate court may substitute a conviction for an

acquittal without hearing the accused - Section 21(1)(b) of the Magistrates' Court Act

1984.

-Headnote

The appellant was acquitted of the charge of cattle theft by the primary court but on

appeal the B district court reversed that decision and convicted the appellant of

cattle theft and sentenced him to five years imprisonment. No notice for the hearing

of the appeal was served on the appellant and the appeal was determined in his

absence. He appealed to the High Court.

Held:

C (i) It is a fundamental principle of law that no person shall be condemned

unheard; a person acquitted by a trial court cannot be convicted by an appellate court

without being given an opportunity to be heard.

(ii) The district court, on appeal, had no jurisdiction to substitute a

conviction for acquittal D without first giving the appellant an opportunity to be

heard.

Case Information

Conviction quashed and sentence set aside; appeal to the district court to be heard de

novo.

No case referred to.

E Rweyongeza, for the appellant.

Mbezi, for the respondent.

Kifunda, state attorney, as amicus curiae.

[zJDz]Judgment

F Maina, J: delivered the following considered judgment of the court:

The appellant was charged in the primary court at Mvumi with cattle theft and he

was acquitted. On appeal to the district court at Dodoma, by the respondent who was

the original complainant, the decision of the primary court was reversed, and the

appellant was convicted of cattle theft as G charged and he was sentenced to five

years imprisonment. This appeal is against the conviction.

Mr Rweyongeza, learned counsel for the appellant, argued several grounds of appeal,

but I shall base my decision on one ground only, and that is the second ground of

appeal. Mr Rweyongeza submitted, H in respect of the second ground of appeal, that

the learned district magistrate erred in law in failing to serve a notice on the

appellant, and in determining the appeal in the absence of the appellant, without

giving the appellant an opportunity to be heard. Learned counsel cited s 21(1)(b) of

the Magistrates' Courts Act 1984 which states in part that in the exercise of appellate

jurisdiction, the I district court shall have

1994 TLR p23

MAINA J

power to confirm, reverse, amend or vary in any manner, the decision of the primary

court, and that, A

`. . . no conviction or conviction and sentence shall be substituted for an

acquittal, and no sentence shall be enhanced, unless the accused or convicted person,

as the case may be, shall have first been given an opportunity B of being heard'.

It is a fundamental principle of law that no person shall be condemned unheard. A

person who has been acquitted by a trial court cannot be convicted by an appellate

court without being given an C opportunity of being heard. Since the appellant was

acquitted by the primary court, the district court, on appeal, had no power to

substitute a conviction for the acquittal without first giving the appellant an

opportunity to be heard. The requirement to give such an opportunity to the person

who has been acquitted, is mandatory, and not discretionary. The learned district

magistrate erred in law in not D giving the appellant the opportunity to be heard.

The error is incurable. Mr Mbezi, learned counsel for the respondent, conceded that

failure to give to the appellant an opportunity to be heard, was an incurable error in

law and Mr Kifunda, learned State Attorney who appeared as amicus curiae,

concurred.

For the reasons given, I agree with counsel that the appellant's conviction cannot

stand. I quash the conviction and set aside the sentence. As the appellant has served

one year and nine months out of the five years imprisonment, it is, in my view, fair

and in the interest of justice that the appeal be re-heard in the district court. Since the

appellant has not served a substantial term of the sentence imposed, it is necessary

that the appeal be re-heard by the district court.

Having found that the district magistrate erred in law in substituting a conviction for

the acquittal, without giving the appellant an opportunity to be heard, I do not

consider it is necessary to decide on the other grounds of appeal. The other grounds

are based on the evidence, and anything I comment on the evidence will prejudice

the magistrate who will hear the appeal in the district court.

The appeal is allowed. The proceedings before the district court are declared a nullity.

The conviction is quashed and the sentence is set aside.

It is ordered that the appeal be heard de novo in the district court by another

magistrate of competent jurisdiction.

1994 TLR p24

A