SADIKI ATHUMANI v THE REPUBLIC 1986 TLR 235 (HC)

SADIKI ATHUMANI v THE REPUBLIC 1986 TLR 235 (HC)

Court High Court of Tanzania - Dodoma

Judge Samatta J

15th April, 1988. E

(PC) CRIMINAL APPEAL 5 OF 1985

Flynote

Natural justice - Principles of - Appellant not given an opportunity to be heard at the

hearing of his appeal - Grievous injustice.

-Headnote

The appellant had been convicted by a Primary Court. On appeal to the District

Court he was not given an F opportunity to be heard. The judgment by the Primary

Court which was prejudicial to his interests was upheld. On further appeal

Held: (i) The requirement that a party to proceedings must be given the opportunity

to state his views is a G fundamental principle of natural justice;

(ii) once an appeal is admitted to hearing, the appellant is, regardless of the

chances of success of the said appeal, entitled to be heard against the judgment,

decision or order he has appealed against and must be given the opportunity to

exercise that right. H

Case Information

Order accordingly.

Cases referred to: I

1. Tellis and Others v Bombay Municipal Corporation and others

[1987] LRC (Const) 315.

1986 TLR p236

SAMATTA J

2. Goldberg v Kelly 397 US 254 A

3. Joint Anti-facist Refugee Committee v McGrath 341 US 123

4. S.L. Kapoor v Jagmohan [1981] 1 SCR 746.

5. National Textile Workers' Union and Others v Ramakrsihnan and

Others [1980-4] LRC (Comm)729. B

Mwambe and Njulumi, for the Republic

[zJDz]Judgment

Samatta, J.: This is a second appeal. The appellant was convicted, together with

another person who has C elected not to appeal, of cattle theft, contrary to s. 265 and

268 of the Penal Code. He and his co-accused were each sentenced, in accordance

with s. 5(c) of the Minimum Sentences Act, 1972, to five years' imprisonment. Their

appeals to the District Court of Iramba District were unsuccessful. D

The District Court determined the appeals without giving the appellants, who in their

respective Petitions of Appeal did not indicate that they did not like to be present at

the hearing, the opportunity to be heard. Quite right, Mr. Mwambe, for the

Republic, conceded that the denial of the opportunity to be heard was a serious E

error in law. It is not clear from the record of the case why the learned magistrate

who "heard" the appeals strayed into that error. One hopes that it was not because he

thought that the appeals were unarguable. I express that hope because, as I

understand the law, once an appeal is admitted to hearing, the appellant is, F

regardless of the chances of success of the said appeal, entitled to be heard against the

judgment, decision or order he has appealed against and must be given the

opportunity to exercise that right. Grievous injustice is done to a person who is not

given the opportunity to be heard at the hearing of his appeal against a judgment

which is G prejudicial to his interests. The requirement that a party to proceedings

must be given the opportunity to state his views is a fundamental principle of natural

justice. The true legal position regarding the purport and implications of that right

was, if I may respectfully say so, correctly stated by the Supreme Court of India in

Tellis and Others v Bombay Municipal Corporation and Others [1987] LRC (Const)

351. Speaking through H Chandrachud, C.J., the Court said at pp 376-377:

The proposition that notice need not be given of a proposed action because

there can possibly be no answer to it, is I contrary to the well-recognised

understanding of the real import of the rule of hearing. That proposition overlooks

that

1986 TLR p237

SAMATTA J

justice must not only be done but must manifestly be seen to be done and confuses

one for the other. The A appearance of injustice is the denial of justice. It is the

dialogue with the person likely to be affected by the proposed action which meets the

requirement that justice must also be seen to be done. Procedural safeguards B have

their historical origins in the notion that conditions of personal freedom can be

preserved only when there is some institutional check on arbitrary action on the part

of public authorities. (see Kadish, "Methodology and Criteria in Due Process

Adjudication - A Survey and Criticism" (1957) 66 Yale LJ 319, 340). The right to be C

heard has two facets: intrinsic and instrumental. The intrinsic value of that right

consists in the opportunity which it gives to individuals or groups, against whom

decisions taken by public authorities operate, to participate in the D proceedings by

which those decisions are made, an opportunity that expresses their dignity as

persons. [Goldberg v Kelly 397 US 254, 264-165 (1970) (right of the poor to

participate in public processes).]

Whatever its outcome, such a hearing represents a valued human interaction in

which the affected person E experiences at least the satisfaction of participating in

the decision that vitally concerns her, and, perhaps the separate satisfaction of

receiving an explanation of why the decision is being made in a certain way. Both

the F right to be heard from, and the right to be told why, are analytically distinct

from the right to secure a different outcome; these rights to interchange express the

elementary idea that to be a person, rather than a thing, is at least to be consulted

about what is done with one. Justice Frankfurter captured part of this sense of

procedural G justice when he wrote that the "validity and moral authority of a

conclusion largely depends on the mode by which it was reached.... No better

instrument has been devised for arriving at truth than to give a person in jeopardy of

serious loss notice of the case against him and opportunity to meet it. Nor has a better

way been H found for generating the feeling, so important to a popular government,

that justice has been done" Joint Anti-fascist Refugee Committee v McGrath 341 US

123, 171-72 (1951). At stake here is not just the much-acclaimed appearance of

justice but, from a perspective that treats process as intrinsically significant, the I

very essence of justice. (See American Constitutional Law by Laurence H. Tribe,

Professor of Law, Harvard University 1978 Edn., p. 593).

1986 TLR p238

SAMATTA J

The instrumental facet of the right of hearing consists in the means which it affords of

assuring that the public rules A of conduct, which result in benefits and prejudices

alike, are in fact accurately and consistently followed. In an earlier case, S L Kapoor v

Jagmohan (1981 1 SCR 746, cited in Tellis' case (supra), the same Court, speaking

through Chinnappa Reddy, J., said at p. 766: B

In our view the principles of natural justice know of no exclusionary rule

dependent on whether it would have made any difference if natural justice had been

observed. The non-observance of natural justice is itself prejudice to any man and C

proof of prejudice independently of proof of denial of natural justice if necessary. It

ill comes from a person who has denied justice that the person who has been denied

justice is not prejudiced. (the underscoring is supplied)

Can courts say natural justice need not be observed by them as they know how to

render justice without D observing natural justice? In the Indian case of National

Textile Workers' Union and Others v Ramakrsihman and Others [1980-84] LRC

(Comm) 729, Reddy, J, posed that question and proceeded to E answer it, at p. 749,

as follows:

It will surely be a travesty of justice to deny natural justice on the ground that

Courts know better. There is a peculiar and F surprising misconception of natural

justice, in some quarters, that it is, exclusively, a principle of administrative law. It is

not. It is first a universal principle and, therefore, a rule of administrative law. It is

that part of the judicial procedure G which is imported into the administrative

process because of its universality. "It is of the essence of most systems of justice -

certainly of the Anglo-Saxon System - that in litigation both sides of a dispute must be

heard before decision, "Audi alteram partem" is as much a principle of African as it is

of English legal procedure; a popular Yoruba saying is: H wicked and iniquitous is he

who decides a case upon the testimony of only one part to it (T.O. Elias, The Nature

of African Customary Law). Courts even more than administrators must observe

natural justice.

I respectfully concur in these observations and desire to adopt them as representing

my views. In the case now I before me, clearly

1986 TLR p239

SAMATTA J

the learned magistrate strayed into a grave error in law in not giving the appellants

the opportunity to be heard. A There is no provision in section 20, 21 or 34 of the

Magistrates' Courts Act, 1984 (hereinafter referred to as "the Act") - the sections

governing the appellate jurisdiction of the District Courts - which empowers a

District B Court to dispense with the observance of natural justice. On the contrary,

the right of hearing, as far as criminal appeals heard in the District Courts are

concerned, is statutorily recognised. The recognition is embodied in s. 34(2) of the

Act. The subsection reads as follows:

(2) An appellant or other party, whether in custody or not, shall be entitled to

be present at the hearing of an appeal under C this part:

Provided that where an appellant or other party is in custody, his right

to be present at the hearing of the appeal D shall, unless the court directs that his

presence is desirable for the due determination of the appeal in which case the

expenses of transferring him to and from the place to hearing shall be borne by the

Republic, be subject to his E paying all expenses incidental to his transfer to and

from the place where the court sits for the determination of the appeal.

The right of presence at the hearing of an appeal is not confined to physical presence;

it includes the right to F participate in the proceedings in question by, inter alia,

making submissions on issues raised by the appeal with a view of assisting the Court

to reach a just and correct decision. As rightly pointed out in Tellis' case (supra), the

G point of the right of hearing is "less to assure participation than to use participation

to assure accuracy." The right is a very important one and the denial of it is a grave

error which vitiates the proceedings in the District Court. The error is, in my

judgment, incurable under the provisions of s. 37(2) of the Act.

For the reasons I have given, I allow the appeal and set aside the decision of the

District Court in so far as it H relates to the appellant. Exercising my revisional

jurisdiction, I also set aside the District Court's decision dismissing the appellant's coaccused's

appeal before that court. It is ordered that the two appeals before the

District Court be heart de nove by another magistrate of competent jurisdiction. I

Order accordingly

1986 TLR p240