BAKARI MSELEMU v REPUBLIC 1985 TLR 190 (HC)

BAKARI MSELEMU v REPUBLIC 1985 TLR 190 (HC)

Court High Court of Tanzania - Tanga

Judge Maina J

May 26, 1983

CRIMINAL APPEAL 3 OF 1981 E

Flynote

Criminal practice and Procedure - Hearing - Case disposed of in the absence of the

accused - No evidence that accused absconded deliberately - Whether conviction

proper F and just - Criminal Procedure Code, s. 202A [now s. 227 of the Criminal

Procedure Act, 1985].

-Headnote

The appellant was released on bail after the close of the prosecution case. He did not

G appear on the several occasions when the case was fixed for hearing and he was

reported sick and admitted in hospital. Then on one occasion, both the appellant and

his sureties being absent, the prosecutor alleged that the appellant was hiding in the

forests. On that basis the court ordered the appellant's arrest and subsequently,

proceeded to H convict and sentence him in absentia on the basis that he had

absconded. This was done under s. 202A of the Criminal Procedure Code [now s. 227

of the Criminal Procedure Act, 1985]. There was no evidence that the absence of the

appellant was deliberate or I that he and his sureties were informed of the date the

case was to be called for hearing.

1985 TLr p191

MAINA J

Held: A trial court can proceed to dispose of a case in the absence of the accused A

person under s.202A of the Criminal Procedure Code only where such absence of the

accused cannot be explained at all and his whereabouts are completely unknown; as

the appellant in this case had been reported sick and there was no evidence that he

had B absconded deliberately, the conditions for proceeding in his absence were not

met and therefore he was convicted without being given an opportunity to defend

himself.

Case Information

Appeal allowed. C

No cases referred.

Judgment

Maina, J.: This is an appeal by Bakari Mselemu against conviction for cattle theft and

the sentence of five years imprisonment. D

The prosecution evidence was briefly as follows: On 28.12.1979 a cow was stolen

from the complainant, P.W.I Lenyika Kiseri at Sindeni village in Handeni district.

About one week later, on 5.1.1980, PW3 Rashidi Suberi met the appellant who said

he E had a cow which he wanted to sell. But since Rashidi knew that complainant's

cow had been stolen he passed on the information to PW2 Idi Saidi who also

informed the complainant. A trap was arranged. On the day the appellant had

agreed to meet Rashidi, the complainant who was not known to the appellant turned

up and Rashid pretended to buy the cow. The appellant told them that the cow was

his property. He F was arrested on the spot and he was sent to the Chairman PW4

Ramadhani, to whom the appellant alleged he had bought the cow for a friend. There

was also evidence that the appellant had, on 5.1.80, sent the cow to PW5 Mohamed

for safe keeping and that on 6.1.80 when the appellant was trying to sell the cow to

PW3 Rashid, the said Mohamed (PW5) was also present. G

At the close of the prosecution case, the appellant was released on bail. He did not

appear on the date fixed because as the record shows, his surety reported that the

appellant was sick and admitted in hospital. On two subsequent occasions when the

case was called for hearing the appellant was absent, and reported sick. On 17.3.1980

H the appellant's brother one Mohamed Mselemu informed the Court that the

appellant was still sick and admitted at Kwamkono Mission Hospital. The record does

not show whether the appellant's surety was present. On the subsequent occasion

when the case was called for hearing both the appellant and his sureties were present

and on 15.4.1980 I the prosecutor told the court that he was informed that the

appellant was sleeping in the

1985 TLR p192

MAINA J

forests. It is on this basis that the court ordered for the appellant's arrest and finally

the A court proceeded to pronounce judgment and sentence on the basis that the

appellant had absconded.

It is obvious from the record that the appellant was not given an opportunity to

defend himself. Although the Magistrate did not specify under what section of the

law he decided to proceed with the case in the absence of the appellant it seems he

had in mind B section 202A of the Criminal Procedure Code which states:

Where in any case to which section 202 does not apply, an accused person

being tried by a subordinate Court fails to appear on the date fixed for the

continuation of the hearing after the C close of the prosecution case or on the date

fixed for the passing of sentence, the Court may, if it is satisfied that the accused's

attendance cannot be secured without undue delay or expense, proceed to dispose of

the case in accordance with the provisions of section 210 as if D the accused, being

present had failed to make a statement or adduce any evidence...

In my opinion, a trial Court can only proceed to dispose of the case in the absence of

the accused under section 202A of the Criminal Procedure Code where the accused is

E absent for no known reason or where his whereabouts are unknown. The

appellant in this case was reported sick and admitted in hospital. The surety reported

this to the Court and the appellant's brother made the same report. When the Court

decided to F issue a warrant of arrest, the appellant and his surety were absent. It is

not known whether the surety had been informed of the date the case was to be

called for hearing. I think the possibility that the appellant and his surety were

unaware of the date the appellant was required in Court cannot be ruled out because

when that date was fixed they were not in Court. G

The prosecutor's statement to the Court that the appellant was sleeping in the forests

was not based on any evidence. The warrant of arrest issued was not returned to the

Court with the necessary endorsement by the officer who was required to execute it.

I have not seen a copy of that warrant in the original file. It is therefore difficult to

believe H that the appellant who was sick and admitted in hospital had left hospital

and disappeared in the forests. It was therefore, in my opinion wrong on the part of

the trial Magistrate to proceed with the case in the absence of the appellant, under

the circumstances. There is absolutely no evidence that he had absconded or that he

deliberately failed to appear in Court on the I

1985 TLR p193

date he was required. The appellant was convicted without being given an

opportunity A to defend himself.

The learned State Attorney conceded that the proceedings were a nullity and he did

not support the conviction. With respect, and for the reasons which I have already

given above, I agree with the learned State Attorney. The conviction is quashed and

the B sentence is set aside.

I have considered whether I should order a retrial. The appellant was, according to

the record of the District Court, committed to prison on 14th October 1980 when he

started serving the sentence of five years imprisonment. He has already served two

and a half years imprisonment. With the normal prison remission further

imprisonment will cause C injustice to the appellant.

It is ordered that the appellant be released from custody forthwith unless he is

otherwise lawfully held.

D Appeal allowed.

1985 TLR p193

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