MAHERI MARUGU v REPUBLIC 1984 TLR 209 (HC)

MAHERI MARUGU v REPUBLIC 1984 TLR 209 (HC)

Court High Court of Tanzania - Mwanza

Judge Katiti J

August 10, 1984

CRIMINAL CASE 85 OF 1983

Flynote

B Criminal Practice and Procedure - Adjournment - Courts powers to adjourn cases

under s.201 of the Criminal Procedure Code Cap. 20 - Discretion must be exercised

judicially and not arbitrarily.

Criminal Practice and Procedure - Trial - Trial in absentia - Whether a subordinate

court can proceed with C trial in the absence of the accused where after closure of

prosecution's case the accused fails to appear at the date fixed for his defence.

-Headnote

D The appellant was charged and convicted in absentia of cattle theft and sentenced

to seven years imprisonment. The trial began on 27 April 1982 and on 15 June 1982

the prosecution closed its case but the appellant was not required to make his defence

as provided for under s.206 of Cap. 20. The case was adjourned for unspecified

reasons and from this point the case underwent several E mentions and

adjournments until the appellant lost co-ordination with the court in the

consequence of which he failed to appear for his defence and at the judgment day.

The appellant who was out on bail just found himself re-arrested and sent to prison to

serve a seven year prison sentence. He appealed.

F Held: (i) While the trial magistrate has discretion under s.201 of the Criminal

Procedure Code, Cap. 20 to adjourn cases before and during hearing, the application

of this discretion must be done judicially and not arbitrarily;

G (ii) before a subordinate court may proceed under section 202 of the Criminal

Procedure Code to dispose the case in accordance with provisions of s.210 of the

Code, two co-existing conditions must be satisfied, namely: the accused must have

failed to appear on the date fixed for continuation H of hearing after closure of the

prosecution's case with notice of such hearing date, and the trial court must also be

satisfied that the accused cannot be secured without undue delay or expense.

Case Information

I Order accordingly.

No case referred to.

1984 TLR p210

KATITI J

[zJDz]Judgment

Katiti, J.: Maheri Marugu, who was before Mugumu District Court, charged as 2nd

accused, was A finally found guilty and convicted, in absentia, of cattle theft, and

sentenced to seven years imprisonment. Arrested, days after he was sentenced, the

same Maheri Marugu was escorted straight to prison. Failing to comprehend as to

what this was all about, he has appealed bitterly B complaining as to how he could

be imprisoned without being accorded opportunity to defend himself, and to hear

judgment against him being pronounced, and hence this appeal.

It may not be easy for anyone to appreciate the appellant's bitterness, unless

circumstances C pertaining to the trial are recapitulated. This I shall hereafter do.

The appellant having been arraigned on 10/12/1981, the prosecution began adducing

evidence on 27/4/1982. On the 15/6/1982, the prosecution closed its case, and

without the administration of Section 206 of the Criminal Procedure Code, and for

reasons unrecorded, the case was adjourned to 10/7/1982 for defence, but D

mentioned on 30/6/192, although the appellant had been released on bail, as from

25/3/1982. The record is unambiguous, that, although the appellant was supposed to

defend himself on 10/7/1982, the case came up for mention on 30/6/1982, when the

case for ungiven reason was again adjourned E for defence to 15/7/1982, and not on

10/7/1982, a date that had hitherto before been fixed for defence. On 15/7/1982 the

appellant was not present, but because the prosecutor had no case file, the case was

adjourned again to 22/7/1982 for defence.

But again, for reasons that are on record not apparent, the record was never touched

till 24/7/1982, F when the appellant mysteriously found himself present, on his own

initiative. The record is again silent as to why, but it was again adjourned to

20/9/1982, and subsequently to 7/10/1982 and 25/10/1982 respectively for defence.

Unfortunately, when the appellant failed to appear on G 25/10/1982, the case was

adjourned to 2/11/1982 for Judgment, which was in fact delivered on 4/11/1982,

without the appellant making his defence, and in absentia of the appellant.

The appellant has appealed. In this case, two aspects remarkably activate my reaction.

The first H aspect, is the number of adjournments, to whose unexplained monotony,

the appellant finally succumbed, and failed to appear. Apart from the thirteen

adjournments that preceded the trial, the appellant also suffered further martyrdom at

the instance of eight more adjournments. From the record, even where and when the

appellant was present, the trial magistrate, did for no recorded I reasons adjourn the

case, and this he did many

1984 TLR p211

KATITI J

A times. I would like it inculcated, that while a trial magistrate has discretion to

adjourn a case before ordering a hearing of the same - see section 201 of the Criminal

Procedure Code Cap. 20, the application of such discretion must be done judicially,

and not arbitrarily. In this case the trial B magistrate adjourned the case, so often

and so arbitrarily, not bothering to give reasons why, and not caring to be considerate

to the appellant, an approach which is very injudicious. After all, an accused person,

innocent till proved guilty, like any other citizen, to sustain life, may have his shamba

to cultivate, his business to perform, his office to run, and when arbitrary and

frequent C adjournments, make the execution or performance of the above

impossible, room is coincidentally created for such accused to default in appearance,

and the court involved cannot escape blame. It is in my opinion not irrelevant to

point out, that such arbitrary and frequent adjournments generate D

disenchantment with the Court system on the part of accused, and further provokes

boomerang effect to the Courts, by eroding the respect and confidence the public in

general and the accused in particular, may have had in the said courts. In this case,

while the appellant may have technically defaulted in appearance, the trial magistrate

cannot hold himself blameless.

E As aforementioned, the conviction and sentencing of the appellant in absentia

demands a Judicial touch by this court. The record speaks and so does loudly, that,

the appellant defaulted in appearance after the closure of the prosecution's case. This

being undoubtedly the case of course F without prejudice to my reservations

expressed above, the provisions of section 202 of the Criminal Procedure Code Cap.

20, are inapplicable, as, though the appellant was absent, the court could not proceed

with further hearing, as such further hearing, could in the circumstances of this case

only be possible, the prosecution having closed its case, if the appellant was present

and G elected to defend himself. I am therefore, without the citation of authority

under which the magistrate proceeded, left to presume, that, the magistrate must

have applied the provisions of section 202 A of the Criminal Procedure Code Cap 20,

to convict and sentence the appellant, H notwithstanding his absence.

I am only naggingly worried by the persistent question, whether, if the trial

magistrate had, the provisions of Section 202 A of the Criminal Procedure Code Cap

20 in mind, he properly applied the same. It is perhaps not untimely to delve into

how these provisions should apply, and finally see if I they actually were so properly

applied. The provisions of section 202 A of the Criminal Procedure Code

1984 TLR p212

KATITI J

Cap 20, in so far as they are applicable to the circumstances of this case, are in effect

saying that, A where an accused person being tried by a subordinate Court, does not

appear on a date for continuation of hearing, after the closure of the prosecution's

case, the Court may, if it is satisfied that the accused's attendance, cannot be secured

without undue delay or expense, proceed to B dispose of the case, in accordance

with the provisions of section 210 of the Criminal Procedure Code Cap 20, as if the

accused being present, has failed or refused to defend himself. As I see, these

provisions introduce an element or point of departure, whereby an accused may in

given circumstances be convicted in his absence. That being the case, principles of

natural Justice being C in danger, it seems necessary that conditions precedent for

the conviction of the accused under section 202 A of the Criminal Procedure Code in

his absence must strictly be adhered to. After giving the thorough and deserving

consideration to the provisions of section 202 A of the Criminal D Procedure Code

Cap 20, it seems to me that two conditions precedent, must be present and coexisting,

before a Subordinate trial Court, proceeds under section 202 A of the

Criminal Procedure Code in the absence of the accused, to dispose of the case in

accordance with the provisions of section 210 of the Criminal Procedure Code Cap 20

- they are in my view as follows: E

(1) The accused must have failed to appear on a date fixed for continuation

of hearing after the closure of the prosecution's case; with notice of such hearing date

and F

(2) The trial Court must also be satisfied that the accused cannot be

secured without undue delay or expense.

Normally, while a trial Court may easily know that, the accused has not appeared on a

date fixed for G continuation of hearing, after the closure of the prosecution's case,

the same Court has no way of satisfying itself, that the accused's attendance cannot be

secured without undue delay or expense, unless the same trial Court takes Judicial

steps, from which deduction or conclusion, that, the H accused cannot be secured

without undue delay or expense may reasonably be made. Two twin approaches are

normally made. One, a warrant of arrest is normally issued, and the impossibility to

execute the same, may provide ground for the trial Court to reasonably conclude that

the accused may not be secured without undue delay or expense. In addition to the

issuing of warrant of arrest I or in the alternative to

1984 TLR p213

A the same, the accused's surety, if any, in the course of showing cause why his

cognisance should not be forfeited, may shed light on the where abouts of the accused

person, so that the trial court is in a position to make a Judicial conclusion, that the

accused cannot be secured without B undue delay or expense. In this regard the trial

court must apply a Judicial approach to avoid the danger of lightly condemning the

accused unheard a violation of principle of natural Justice.

In this case, the trial magistrate never directed himself on the above two conditions

precedent. The C trial magistrate never issued any warrant of arrest, nor was the

surety summoned at all. Under such circumstances, it is not easy to tell, that, the trial

Court put itself in a position to be satisfied that the accused could not be secured

without undue delay or expense. Under the circumstances above shown, and with

the prudence that must accompany the application of the provisions of D section 202

A of the Criminal Procedure Code Cap 20, I find it unsafe to uphold this conviction.

The same said conviction is hereby set aside, and it is ordered that the trial Court

resume the trial where it had ended to convict him and proceed as provided by

Section 206 of the Criminal Procedure Code E Cap 20. The appellant is hereby, to be

released from prison, and may, if circumstances so warrant be released on bail, by

trial Court, on such terms as it thinks adequate.

F Order accordingly.

1984 TLR p213

G