DIRECTOR OF PUBLIC PROSECUTIONS v SABINIS INYASI TESHA AND RAPHAEL J. TESHA 1993 TLR 237 (CA)

 DIRECTOR OF PUBLIC PROSECUTIONS v SABINIS INYASI TESHA AND RAPHAEL J. TESHA 1993 TLR 237 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Ramadhani JJA and Mfalila JJA

CRIMINAL APPEAL NO. 127 OF 1993 B

8 November, 1998

(From the acquittal by the High Court of Tanzania at Arusha, Nchalla, J.) C

Flynote

Criminal Practice and Procedure - Appeals - Appeals against Interlocutory Orders -

Whether appellable by the Director of Public Prosecutions - Appellate Jurisdiction

Act 1979, s 6(2). D

Criminal Practice and Procedure - Incomplete trial within a trial Whether Court can

make a ruling on it.

Natural Justice - The right to be head in criminal trials - The right of the prosecution

to be heard.

-Headnote

The appellant was aggrieved by the ruling of the Trial Court that the respondents had

no case to E answer to the charge of manslaughter. Three grounds of appeal were

advanced: firstly, refusal of the Judge to admit extra-judicial statements of both

respondents and the cautioned statement of the first respondent; secondly, refusal to

give the appellant right to reply to objections by the respondents' advocate; and lastly,

the ruling of no prima facie case. F

Held: (i) Since the Justice of the Peace was the only witness in the trial within a

trial, and his testimony was not controverted even by the respondents, and since the

Trial Judge rejected his evidence, the trial within a trial was incomplete; therefore,

the Judge erred in making a G ruling on it;

(ii) It is a cardinal principle of natural justice that a party should not be

condemned unheard; the appellant was not given an opportunity to respond to the

allegation that the cautioned statement made by one of the respondents was illegally

obtained;

(iii) Failure to conduct a second trial within a trial was a fundamental error;

H

(iv) The D.P.P has the right to appeal against an interlocutory order in

criminal proceedings; it is only the accused person who does not have such a right.

Case Information

Appeal allowed. The proceedings are quashed and a retrial ordered before another

Judge. I

1993 TLR p238

A Cases referred to:

1. General Medical Council v Spackman [1943] AC 627.

2. Hypolito Cassiano De Souza v Chairman and Members of the Tanga

Town Council [1961] EA 377.

3. Alois Kula and Another v Republic, Criminal Appeal No. 120 of 1990

(unreported).

B J. Mono, for the appellant.

C.J. Maruma, for the respondents.

[zJDz]Judgment

C Ramadhani, J.A., read the following considered judgment of the Court:

The High Court of Tanzania at Arusha (Nchalla J), on 4 November 1992, made a

ruling that the two respondents, Sabinis Inyasi Tesha and Raphael Jacob Tesha, had

no case to answer. Thus they were acquitted of the charge of manslaughter c/s 195 of

the Penal Code.

D That ruling aggrieved the Republic and so the Director of Public Prosecutions has

come up with this appeal. At the hearing Mr Mono, the learned Principal State

Attorney, appeared on behalf of the appellant Republic, while Mr Maruma learned

Counsel, represented both respondents, just as he had done at the trial.

E Mr Mono filed three grounds of appeal. First he attacked the refusal of the learned

Trial Judge to admit as evidence the extra-judicial statements of both respondents and

the cautioned statement of the first respondent. Secondly, Mr Mono said that Nchalla

J erred when he refused to give DPP the F right to reply to the objections of Mr

Maruma to the production of the cautioned statement of the first respondent. Lastly it

was submitted that the ruling of no prima facie case was wrong since the evidence of

the remaining prosecution witness PW1 was sufficient to make out a case for the

respondents to answer.

G In the course of hearing the appeal, four fundamental omissions vividly stood out,

and Mr Maruma was very quick to admit them when he came to address the Court.

We intend to dispose of this appeal in those four errors.

H Firstly, the record is patently clear that the trial within a trial that was conducted

was incomplete and yet the learned Trial Judge made a ruling on it. Secondly, the

DPP was denied his right of reply after the defence made its objection. Thirdly a

second trial within a trial was not held while it ought to have been conducted. Lastly

the DPP was denied a stay of proceedings he requested so that he I could appeal

against the rejection of the cautioned statement of the first respondent.

1993 TLR p239

RAMADHANI JA

Both respondents recorded extra-judicial statements before a Justice of the Peace

(PW3). When A these statements were about to be tendered as exhibits, Mr Maruma

objected. So a trial within a trial was held. PW3 became the first prosecution witness

in the trial within a trial. In fact PW3 was the only witness. After examination-inchief,

cross-examination and re-examination the learned Trial B Judge went on to

make his ruling rejecting both statements. What the Justice of the Peace deposed was

not controverted even by the respondents. We just wonder on what other evidence

did the learned Judge reject that of the Justice of the Peace. This is why we say that

the trial within a trial was incomplete. C

The first respondent had also recorded a cautioned statement before PW4 and when

that was about to be tendered, the defence objected alleging that s 53 to s 58 of the

Criminal Procedure Act 1985 had not been complied with. After that address by Mr

Haruma, the learned Judge made his ruling D rejecting the cautioned statement for

failure to comply with the mandatory provisions of the Criminal Procedure Act.

Mr Mono is recorded to have said:

`I have not been given opportunity to reply to the objection by my learned

friend on the admissibility of the statement which PW4 recorded from first accused.

For that reason I apply to appeal against the ruling. The proceedings be E stayed.'

Thus Mr Mono registered two points. Firstly he pointed out that he was denied his

right of reply. Secondly he wanted to exercise his right of appeal and so asked for the

proceedings to be stayed. F

We shall deal with the first point first. With respect, the learned Judge erred. It is a

cardinal principle of natural justice that a party should not be condemned unheard. In

the issue of objecting to the admission of the cautioned statement, tables were turned;

Mr Maruma was the prosecutor accusing G Mr Mono of producing a document

which had been illegally obtained. Mr Mono had to defend the Republic against that

allegation but was not given opportunity.

Lord Wright had this to say in General Medical Council v Spackman (1), at 644: H

`If principles of natural justice are violated in respect of any decision, it is

indeed immaterial whether the same decision would have been arrived at in the

absence of the departure from the essential principles of justice. That decision must be

declared to be no decision.' I

1993 TLR p240

RAMADHANI JA

A That was quoted with approval by the Court of Appeal for Eastern Africa in De

Souza v Tanga Town Council (2) at 388. We think it is a sound principle.

However, in the present case, `in the absence of the departure' from that rule of

natural justice, B namely the right to be heard, the learned Judge would not have

arrived at the same decision. More likely he would have ordered a trial within a trial

which is the test a statement has to pass before it is admitted as evidence. So the

departure here is even more offensive. This is the third fundamental error: the failure

to conduct a second trial within a trial.

C To go back to the second point of Mr Mono, that is, his request for staying the

proceedings so that he could appeal, the learned Judge responded with the following

order:

`As the ruling is on an interlocutory point I rule out the application to stay the

proceedings. I order accordingly.'

D Mr Mono complied in the only way open to him: `In that case my Lord, I close

the Prosecution case.' That, of course paved the way for the ruling of no case to

answer which gave birth to this appeal.

E At the appeal Mr Mono submitted that the learned Judge erred in his opinion that

an interlocutory order in criminal proceedings is not appealable by the DPP. He

relied on our decision in Alois Kula v Republic (3). The learned Principal State

Attorney said that the DPP has a right of appeal even against such orders. With

respect, that is so. In Alois Kula (3) we were just interpreting the F provisions of s

6(2) of the Appellate Jurisdiction Act 1979 which says:

`(2) Where the Director of Public Prosecutions is dissatisfied with any

acquittal, sentence or order made or passed by the High Court or by a subordinate

court exercising extended powers he may appeal to the Court of Appeal G against

the acquittal, sentence or order, as the case may be, on any ground of appeal.'

Here the DPP wanted to appeal against the order of the learned Judge in rejecting the

cautioned H statement of the first respondent. That order was appealable by the

DPP. It is only the accused person who does not have a right of appeal against an

interlocutory order in criminal proceedings. That is what we decided in Alois Kula

(3).

The learned Judge certainly had his reasons, rightly or wrongly, in conducting the

proceedings in the way he did, however, the four errors pointed out are

uncomfortably glaring. Justice must be seen to I be done both to the accused person

as well as to the prosecution.

1993 TLR p241

Here it cannot be said to have been so on the part of the Republic. A

As Mr Mono prayed the only remedy is to direct a new trial. The proceedings are

quashed and a retrial by conducted by another Judge. It is so ordered.

The appeal is allowed. B

1993 TLR p241

C