HASSAN MOHAMED MKONDE & ANOTHER v REPUBLIC 1991 TLR 148 (HC)

 

HASSAN MOHAMED MKONDE & ANOTHER v REPUBLIC 1991 TLR 148 (HC)

Court Court of Appeal of Tanzania - Tabora

Judge Korosso J

7 October, 1991

Flynote

H Criminal Practice and Procedure - Legal representation - Right to engage an

advocate.

-Headnote

In a trial before the subordinate court the appellant was represented by an advocate

who persistently defaulted I appearing in court. The trial magistrate ordered the

trial to proceed without the advocate's representation. On an application to quash the

proceedings before

1991 TLR p149

KOROSSO J

the trial court the judge found that the trial court had acted properly in proceeding

with the trial in the absence of the A Advocate.

Held: Under the provisions of section 310 of the Criminal Procedure Act, No. 9 of

1985 an accused has a right to engage an Advocate. But such a right has to be

reasonably exercised and must be considered along with other B equally important

rights. For example, a court of law cannot consider only the right of an accused

before it in complete oblivion of the rights of witnesses who appear before it after

they have travelled from near and far.

Case Information

Appeal dismissed. C

[zJDz]Judgment

Korosso, J.: This is an application filed by the Applicant one Hassan Mohamed

Mkonde who is the 2nd accused in this case which is being tried by Mr G.W.

Mirumbe, Resident Magistrate. D

The main reason for the application is that the trial Magistrate conducted the trial in

the absence of his counsel despite his complaint that he was unable to conduct his

defence without his Counsel, that he entertained reasonable fear that the trial

Magistrate would not decide the case impartially. E

Mr. Kwikima, Counsel for the Applicant, submitted that there should be a change of

trial Magistrates because the current trial Magistrate has proceeded with the hearing

of the case despite his absence at the trial, as he had then been appearing before the

High Court, that the trial Magistrate had not supplied him with copy of the

proceedings F on application made to the Court and that when his client had alleged

that he would not defend himself without his Counsel, the bail bond was cancelled

and the Applicant was remanded in Custody. A collection of incidents have been the

cause for the Applicant's fear that he would not get a fair trial. Mr Kwikima further

submitted that the G proceedings be quashed.

On examination of the Lower Court's record, I find that a greater part of the

complaint is unfounded.

The record shows that on 12/3/91 and 13/3/91, the case couldn't proceed for hearing

though the prosecutor had H witnesses because Mr Kwikima for the Applicant was

reportedly engaged before the High Court Tabora. Again, on 9.4.91 when the case

came up for hearing, the prosecutor had witnesses and was ready to proceed. The

Applicant (2nd Accused) told the Court that he had engaged Mr Kwikima. The trial

Magistrate admitted that Mr I Kwikima had written a letter thus: "Owing to more

pressing

1991 TLR p150

KOROSSO J

A commitment elsewhere, we will not be able to attend the hearing of this matter.

We apologize and beg to be excused". The trial Magistrate reacted to the contents of

Mr Kwikima's letter in these terms.

B This Court cannot entertain these types of correspondence by a senior member

of the bar. In essence, the Counsel has permitted himself and thus, this letter is but

an information to that end. This Court will not attach any importance to this letter.

This case has witnesses from as far as Mwanza who are going to be paid. The Court

cannot adjourn on the vague C correspondence by Mr Kwikima.

The hearing of the case proceeded in the absence of Mr Kwikima. The 2nd Accused

(Applicant) was given an D opportunity to cross-examine every witness who

testified.

In my humble view, the trial Magistrate was entitled to proceed in the absence of Mr

Kwikima, who had chosen to write to the court an ambiguous letter. The trial

Magistrate was not obliged to speculate whether such commitment E would be at a

wedding, a rally or funeral. A Magistrate whether young by age or new in the

profession, must always jealously safeguard the authority of the Court over which he

presides at a particular time. He must resolutely resist any attempt by anybody who

deliberately or otherwise erodes or belittles the authority of such a Court.

F Again, according to the record, on 2/5/91 Mr Kwikima appeared in Court. By this

date 4 prosecution witnesses had testified and then cross-examined by the 2nd

Accused (Appellant) in the absence of the learned defence Counsel. On 2/5/91 the

prosecutor asked for an adjournment because he had no witness. Mr Kwikima,

objected G on the ground that on 12/4/91 the hearing had proceeded despite his

absence. His objection was overruled. Mr Kwikima, personally suggested a hearing

date of 27/5/91. The application was granted and the case fixed for hearing on

27/9/91. On 27/5/91 the case came up for hearing as originally fixed on the

application by Mr Kwikima. H The prosecutor told the Court that he had two

witnesses in attendance. The Court asked the 2nd Accused (Appellant) thus:- "Where

is your Counsel?" The 2nd Accused replied:- "He has just gone out". I pray that I go

and look for him". The Court remarked thus:- "This is not possible. The Counsel was

in Court just now and it I was for this case". In spite of such remarks by the trial

Magistrate he adjourned the hearing of the case to

1991 TLR p151

KOROSSO J

28/5/91 partly because the prosecutor had not brought the exhibits in Court. A

When on 28/5/91 the case came up for hearing, Mr Kwikima was not in Court. His

client, the 2nd Accused (Applicant) told the Court that his Counsel had travelled to

Mwanza. The trial Magistrate remarked. "But this case was to have proceed

yesterday and Counsel left the Court without any information. The witnesses in this

case came B from far. This case has to proceed". The hearing proceeded which

involved two prosecution witnesses (P.W.5 and P.W.6), whose evidence brought to a

close the case for the prosecution.

The hearing of the defence was fixed on 31/5/91. On 31/5/91 when the case came up

for the defence, the 2nd C Accused (Applicant) told the Court thus: "My Counsel is

present but he has said that he cannot come to court because he has not been supplied

with copy of charge sheet and proceedings".

The Court observed thus: "It is surprising that the learned Counsel, who is by far a

senior member of the bar can D send such a message to the Court. It may be that the

learned Counsel has never wished to defend the 2nd Accused in this case and has

sought for excuses. This is quite unfortunate. Nevertheless, this case has to proceed".

The E case consequently, proceeded to hearing with the 1st Accused naturally

starting his defence.

After the close of the evidence of the 1st Accused, the record of the Court reads thus:

"The 2nd Accused has not given this Court the way to defend himself. The Court

considers that he has elected to remain silent under, 231 (1) of the C.P.A. There

followed two orders: One order was for the judgment to be delivered on 14/10/91:

This F order has not been implemented because of this instant application. There is

an order for the cancellation of a bail bond. This order has also been the subject of

appeal to this Court.

The question is whether this court should interfere by quashing the proceedings. I

am not prepared to grant the G application. It is surprising that Mr Kwikima, who

had on occasions deserted his client even after he had actually gone into court should

now be heard to complain that justice has not been done to his client. The lower

Courts record testifies that. On 12/3/91 there were 3 prosecution witnesses and on

13/3/91 there were 2 prosecution H witnesses but the case could not proceed because

Mr Kwikima, for the Applicant was engaged before the High Court. The case was set

for hearing on 9/4/91 then the case came up for hearing. Mr Kwikima for the

Applicant wrote a letter that he wouldn't appear for the Applicant because he had

some pressing business elsewhere I

1991 TLR p152

KOROSSO J

A without saying where and what business. On 27/5/91 the case came for hearing

as suggested by Mr Kwikima himself. Mr Kwikima happened to get into Court but

when time was ready to start, the Advocate was nowhere to be seen. The 2nd

Accused desperately suggested to the Court that he be allowed to go outside a look for

his B Advocate, Mr Kwikima, but the lower court rightly rejected the application.

In my view, there is profuse evidence in this case that the trial Magistrate, Mr G.W.

Mirumbe conducted the case perfectly well, recording every little incident. I also

support him for the action he had taken in cancelling the C Accused's bail bonds

because what had been happening in court was unusual and sufficient ground for

suspicion to any reasonable mind.

For a judicial officer, there is nothing so fascinating as seeing an Advocate devotedly

defending a client, but in this D case, it was a different matter. The lower Court was

forced to express surprises after surprises.

If any Advocate decided to defend a suspect whether freely or on payment, then in

the eyes of the Court he is obliged to persue the matter as efficiently and devotedly as

his profession would expect of him to. If for any reason E best known to an

Advocate, he decides to withdraw, then he should do so courteously and

professionally. I think that never before in the history of the country have there been

so greater awareness by the populace of the importance of advocacy. It is, therefore,

imperative for every member of the profession to lay an individual role in F the

edification and not in the degradation of the profession so that it wins the essential

respect of our anxious people.

It is true that under provisions of section 310 of the Criminal Procedure Act, No. 9/83,

an accused has a right to G engage an Advocate. But such a right has to be

reasonably exercised. In this case, the Accused were formally charged on 26/5/88. It

was not until about March, 1991 when the Applicant engaged an Advocate, Mr

Kwikima. By then almost 21/2 years had elapsed. Surely, it cannot be sensibly argued

that the Applicant had exercised his H right with reasonableness.

Again, the right of an accused under the provisions of section 310 of the Criminal

Procedure Act No. 9/85 has to be considered along with other equally important

rights. For example, a Court of law cannot consider only the right of I an accused

before it is complete oblivion of the rights of witnesses who appear before it after

they have travelled from near and far. There is the right of the Republic,

1991 TLR p153

which pays allowances to those witnesses. In this case from 12/3/91 to 21/5/91, the

learned trial Magistrate has A been fully aware of all other rights besides that of the

Appellant. This is what I would choose to call, balanced justice rather than what I

would also call, one sided justice. Similarly, there is nothing in the record to show

that any of the Accused was denied an opportunity to call a witness or witnesses. In

the case of the Applicant, he had B explicitly indicated his wish to call witness.

On the foregone observations, I would refuse to grant the application.

Application refused. C

1991 TLR p153

D