Director of Public Prosecutions vs Abdallah Sauzi and Others (Criminal Appeal No. 113 of 2016) [2017] TZCA 1053 (31 August 2017)

I, . IN THE COURT Of APPEAL OIF TANZANIA AT TABORA (CORAM: LUANDA, J.A, MMillA, J.A And MKUYE, J.A.) CRIMINAL APP!EAl-N0.-11::fOF 201.6 THE DIRECTOR OF PUBLIC PROSfECUTIONS ••••.•..••.•••••••.•••.•. APPELLANT VERSUS ABDALLAH SAUZI ............................................ 11 ■■ ••••a••··1 5 T RESPONDENT ESSAU ABDALLAH @ SAID ........................................... 2No RESPONDENT fliUSSA ABDALLAH @ KAIEHKA ....................................... 3R 0 RESPONDENT FRANK MICHAEL 11••······················································4TH RESPONDENT (Appeal from the decision of the Migh Court of Tanzania (Mrango, J.} dated on 15 th day of February, 2016 in Criminal Session No. 92 of 2014 JUIDGlfv1ENT Of THE COURT 15n, August & 19 th September, 2017 MKUYE, J.A:. In the High Court of Tanzania at Tabora the respondents Abdallah Sauzi, Essau Abdallah ·@ Said, Mussa Abdall'ah @ Kabika and Frank Michael were jointly charged with the offence of murder contrary to section 196 of the Penal Code, Cap. 16, R.E. 2002 vide Criminal Sessions Case No. 92 of 2014. It was alleged that on the 26 th 1

• I -- day of May 2013 during night hours at Itabundala village within Urambo District in Tabora Region they murdered one Jackson Kagoma-. When the information of murder was read over and explained to them on 29/9/2015, they each entered a plea of not guilty. Thereafter, preliminary hearing was conducted by virtue of section 192 of the Criminal Procedure Act, Cap 20, RE 2002 (the CPA) whereby a --rneri,ordndur.1 of agreed facts and lists of :Vitness2s::-ar:d exhib~tsJ:o be relied upon were prepared. The trial commenced before Hon. Mrango J. on 12/02/2016 and three witnesses testified. In the course of testifying in court, PW3 F. 9073 Rahim Maarufu prayed to tender as an exhibit, a 'panga", which he alleged to have collected from the scene of crime. The Court asked the defence counsel, one Mr. Yusuf Mwangazambili, as to whether he objected or otherwise for the_ same to be tendered but he did not_ object. Thereafter, the trial court ruled as hereunder: 11 Despite the fact that Mr. Yusulu /vlwangazainbi/1 - has no objection with the tendering of the said 2

It exhibit (panga) the Court cannot admit the said panga' as it is not listed in the list of the exhibits during the preliminary hearing. It is so ordered'~ [Emphasis is ours]. The Director of Public Prosecutions (the OPP) is aggrieved with the said order, hence, this appeal and raised the following grounds:

• ,· · .. reject the exhibit intended to be tendered in court without affording opportunity to defend {right to be heard).

2. The trial judge erred in law and in fact to rule out that the exhibit was not in preliminary hearing listed while in fact the same is in summary of facts narrated before the court on 29/051/2015. On the other hand, each respondent filed a notice of cross appeal in which they raised identical grounds to the effect that, one, they were not supplied with PI record; two, the rejection of the exhibit by the trial judge was proper; and three, th_~y hc1ve_stayed in remand prison for four years. 3

At the hearing of the appeal Mr. Juma Masanja learned Senior State Attorney represented the appellant Republic, while the 2 nd , 3 rd . and 4t~ respondents enjoyed. the services. of .Mr. Mwangazambili. learned counsel. As to the ist respondent, Mr. Masanja informed the Court that he passed away on 3/8/2017. Upon satisfying ourselves through a certified copy of burial permit dated 3/8/2017, we marked the appeal against the 1 st respondent to have abated under Rule 78 , .(.l) 9fthe Tanzanl_a Court of P..ppeal Rules,. 2009 (tge Ru!s). , ." ~ ._ -- - ....... __ In arguing the appeal, Mr. Masanja submitted in respect of the first ground that the trial judge was wrong to reject the exhibit "panga" for the reason that it was not in the list of exhibits extracted during preliminary hearing without affording the appellant a chance to ·· subrrilt on it.· In that case he was of the view- -t1at .· the principies of natural justice were violated as they were condemned unheard. He referred to us the case of DP!? vs~ Sabinis Inyasi Tesha & Another (1993) TLR 237. The learned Senior State Attorney went on to. submit that though the trial judge rejected the "panga", it was mentioned in the 4

summary of facts. He referred us the case of Jackson Daudi vs. R., Criminal Appeal No. 11 of 2002 page 8. The learned Senior State Attor._ney _ added that the said 'pan_ga" was also listed during the committal proceedings. When asked to comment on the Notices of Cross appeal lodged by the respondents, Mr. Masanja submitted that unlike the OPP who is allowed to appeal against interlocutory orders under section 6 (2) of respondents are not allowed to do so under section 5 (2) ( d) of the same Act. He cited the case of DPP vs. Farid Hadi Ahmed & 9 Others, Criminal Appeal No. 96 of 2013 page 16 in support of this proposition. He, therefore, urged the Court to strike out the respondents notic2s·-of cross• appeal. On his part, Mr. Mwangazambili .in a short and focused submission conceded to both grounds raised by the appellant. He based his argument on the reason that the trial judge did not give an opportunity to the appellaqt . to argue his case. Moreover, he contended that the exhibit "panga" which was rejected by the trial 5

judge was listed during the committal proceedings and mentioned in the summary of facts read over to the respondents during preliminary hearing. With · regard to the notices of cross appeal lodged by the respondents, he was categorical that section 5 (2) ( d) of the AJA did not allow any appeal, revision or review against any interlocutory order unless it had the effect of determining the criminal charge or . .-,suit. He thus prayed tO'the Court to stri-ke thel;} out. .. The issue to be resolved by this Court is whether the trial court did reject the exhibit sought to be tendered without affording the appellant the opportunity to defend her case. VVe wish to take off by stating that l~ C-:.ff- Land, equality before .. • •: "-•,, .... ~ • :, .:,__ '• • • ' , ,, •_ "'•, • -,• • • , • C the law and the right to a fair trial or hearing (principles of natural justice) are fundamental constitutional rights. They are enshrined under Article 13 · (1) and 6 (a) of the• Constitution of the· United Republic of Tanzania, Cap 2, R.E. 2002 (the Constitution) which state as follows: 6

11 13 (1) All persons are equal before the Jaw and are entitle~ without any discrimination/ to protection and equality before the Jaw. (2) .............. .. (3). ............ . (4). ................. . (5) ................... . tl1e state shall make procedures which are appropriate or which take into account the following principles/ namely: (a) when the rights and duties of any person are being determined by the Court or anv agencv,:th9 t p1:;rson sba(I be entitled ..._ • -._ w - - • ,, - • •• • • • • • •• to a fair hearing and to the right of appeal or other legal remedy against the decision of the Court or the other agency concernedv [Emphasis supplied] The spirit of the_ above cited provision is for the party whose rights are to be determined to be heard fully. Incidentally, this Court 7

has through various decisions settled down the law that denial of a fair hearing or trial is a fundamental irregularity which infringe the interest of justice or rather affecLthe people's right of fair trial~ In the case of DPP vs. Tesha (supra) the issue of the adherence to principles of natural justice was emphasized and the . Court stated as follows: 1 'It is a cardinal principle of natural justice that a ,..- " .,-party,shou/d--~no.t be condemned. unhear<1 ✓ - tbe. - ,.- .. . ~ . ,,,,_ ; ,·., -: . . _· - , - . .. --. ' appellant was not given an opportunity to respond to the a/legation that the cautioned statement made by one of the respondents was illegally obtained N Yet in another case of Ngassa KapuH @ Sengerema vs. Republic Criminal Appeal No. 160 "B" of 2014 (unreported) this Court _, - .. : ... ~ . . . ' . . . - . - - . . . . - . - . - .. held that: 1 150 the rule requiring a fair hearing is broad enough to include the rule against bias. It is fundamental to fair procedure that both sides should be heard The right to a fair hearing requires that individuals are not penalized by decisions affecting· their rights or legitimate expectations unless they have 8

been given a fair opportunity to answer cases against them and present their own cases'~ [Emphasis uppJied]. In the instant case, it is not in dispute that the trial judge rejected the ''panga" which PW3 had sought to tender as exhibit. The Court record shows at page 21 that after the defence counsel had not objected for its being tendered, the trial judge proceeded to reject it preliminary hearing. As it were, he made that decision without first.· giving the parties an opportunity to submit for or against the tendering of an exhibit which is not listed during the preliminary hearing. We think that if the trial judge thought it to be a reason for rejecting the. panga as an 1 2xhibit, he should have called upon th,-:Pqrtis:s. to sa'bfnit on it before rejecting it on that basis. Failure to afford the appellant an opportunity to be heard amounted the violation of one of the cardinal principles of natural justice of hearing the party {audi alteram·partem). At any rate_, the I.aw governing preliminary hearing is se.ction 192 .. of the Criminal Procedure Act, Cap. 20, R.E. 2002. For reasons to be 9

shown shortly we find it necessary to reproduce it. The said provision states as hereunder: n192 (1) Notwithstanding the provisions -of section 229/ if an accused person pleads not guilty the court shall as soon as is convenient hold a preliminary hearing in open court in the presence of the accused or his advocate (if he represented by an advocate) and the public pro~c;cutor to consider such matters as are .. - ':"-; .,._ -· .. : - .:- -- -.: - - -

• . not trf clispute be"tween the parties and whith will promote a fair and expeditions trial. (2) In ascertaining such matters that are not in dispute the court shall explain to an accused who is not represented by an advocate about the nature and purpose of and may put · questions to the parties as he thinks fit; and the answers to the questions may be given without oath or affirmation. (3) At the conclusion of a preliminary hearing held under this section/ the court shall prepare a ·memorandum of the matters agreed and the memorandum shall be read 10

over and explained to the accused in a language that he understands/ signed by the accused and his advocate {if any) and by the

p-u blit prosecuto0

and then filed. · ( 4) Any fact or document admitted or agreed {whether such fact or document is mentioned in the summary of evidence or not) in a memorandum filed under this section shall be deemed to have been duly proved; save that .- it, (1.uring the course of the tria/, the court is c;f -- - - . -..r the opinion that the interest of justice so deman~ the court may direct that any fact or document admitted or agreed in a memorandum filed under this section be formally proved. (5) ...... '. ..... . (6) .......... // Also the provisions of Rules. 4 and 6 of the Accelerated Trial and Disposal of Cases Rules, 1988, GN No. 192 of 1988 expound the manner in which preliminary hearing is be conducted. The said Rules provide as follows: -,,4 The person prosecuting shall fn·eveiy triai Under those rules/ prepare/ the facts of the case which 11

shall be read to the accused and explained in a language he can understand 6. When the facts of the case are read and . explained to the accused;, the court shall ask him to state which of those facts he admits and the trial magistrate or judge shall record the same. // The purpose of the enactment of the above provisions in 1988 and 1992 is not far-fetched. History tells that they were enacted in criminal trials. It was intended to put Jn place a system of ascertaining at the earliest stage in the proceedings the matters which are not in dispute and enable the evidence to be brought on disputed matters which are to be proved by only few witnesses who would be summoned at the triaL In the case at hand, the summary of facts was prepared and read over to the accused persons (respondents) as shown at pages 3

• 4 of the Court record. Thereafter, the memorandum of agreed facts was prepared and was signed by all the respondents, the defence
• . counsel, tvJo state attorneys for the Republic and the trial judge. This 12

was followed by the lists of prosecutions' witnesses and exhibits respectively (See pages 7-8). In the list of exhibits prepared during preliminary hearing only the deceas.ed's postmortem rport and the sketch map of the crime scene were mentioned. The "panga" was not included. Both counsel are of the view that it was improper to reject it (the panga) as long as it was mentioned in the summary of facts read -,. --,-~;c'-ver to·the accu.sed·pei·sons. ·1h·-:refr:!'·anf'partof the'summary of--~~~-:·:, facts reads: 11 ... When they finished the said meeting they went outside where all four accused persons together with their relative by the name of HARUNA ABDALLAH . who is yet to be arrested fo/Joweq JOHNSON KAGOMA and started attacking him by big sticks/ hoe handles cutting him using machetes on different parts of his body.,,// But again, in the last paragraph of the summary. of facts, Mr. Mlekano Senior State Attorney stated that: 13

11 Your honuor .... All exhibits will be tendered during the trial ... // -Indeed,- the "panga" featur.ed in the committal proceeding_s ot the District Court. From the above extracts there is no doubt that the machete was mentioned in the summary of facts and that the learned State Attorney did indicate that all the exhibits (the "panga" inclusive) would be tendered during trial. In our view, the fact that, machete notified the court and the respondents of its existence. And since it was not among the fact which was agreed by the accused persons, then it was proper for the witness who retrieved it to produce it in Court when he was testifying. Se it as it may, when faced with ·slrriila:- s-ituatior1dn-the case of Jackson Daudi (supra) this Court observed as hereunder: IIWe observe that neither section 192 of the Criminal Procedure Act 1985 nor Rule 4 and 6 of GN No. 192 of 1988 or observation of this Court in the case of /Bahati Masebu (supra) require that documents containing evidence which is 14

disputed by an accused person during a preliminary hearing has to be produced at the preliminary hearing and listed as an exhibit to be tendered at the trial. What 1h15 - Court said in · Bahati Ma.sebu was that 1 materials contained in documents" ( our underscoringJ not necessarily the documents themselves/ are also to be 11 explained// to the accused ( our underscoring again). It is the non-compliance with such . requirements that this Court s_aig 11 m_c1y cesult into_ . - . '' -- ·, . ' -- - ~ - . -.::- '. quashing of the convictions or appeals. " In this case, though the trial judge rejected the production of a "panga 11 for reason that it was not listed during the preliminary hearing, we have failed to glean where such requirement is so provided· under section 192 .of the CPA Oi Ru!es t:· and--6of .Gl'LNo 192 . ..,.. ·. ... . - .. , .: - -- ·• . . - ... ,. - of 1988. On the basis of the above cited authority we find that the trial judge's denial to admit the "panga 11 which was sought to be tendered was not proper. Had. he invited the parties to address him on the aspect, we think he would not have come to the conclusion he made. We therefore, agree with fhe appei1ant that the denial of the right to 15

.; be heard prejudiced the appellant. As such we find the two grounds of appeal to have merit and uphold them. There is an issue of the notices of cross appeal which were lodged by the respondents. Their complaints which are identical are that they were not supplied with the PI record; that the rejection of the exhibit by the trial judge was proper; and that they have stayed in remand prison for four years. As it can be observed it is not clear as to • _,· - -·· - '<. •• • :~ ... ~ ~~: where their notices emanated from and rnore--so }};1en tal<lhg into account that the trial court did not make determination on the issues raised by them. In fact the matter had not been decided conclusively as such they have no right to appeal. The OPP appealed against an interlocutory order of the trial court following its denial to receive the he is under section 6 (2) of the AJA given a right to appeal against any acquittal, sentence or order made or passed by the High Court or by a subordinate court exercising extended jurisdiction. The said provision provides as hereunder: 16

''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 against the acquittal sentence or order as the case may be/ on any ground of appeal. " On the other hand, section 5 (2) (d) of the AJA sets out different conditions to parties other than the DPP. It provides as follows: 11 Notwithstanding the provisions of subsection (1) - (d) No appeal or application for revision shall lie against or be made in respect of any preliminary or interlocutory decision or order of the High Court unless such decision or order has the effect of finally

,.,,.-= '• - ,;c-.> • ·- ... - ·"deterfnlning' the cjiminal charge or suit. ,, , · ,'" · · · -,~- ·, As was alluded by both counsel the above cited provision in no . uncertain terms prohibits any appeal or revision against interlocutory orders of the High Court to this Court. It allows only those which lead 17

to the final conclusion of the matter. Thus, in the case of OPP vs Farid Hadi Ahmed (Supra) the Court stated as follows: '1ft must be obvioi1s to all now that in the- entire section 6 which clothes this Court with jurisdiction to hear and determine criminal appeals from the High Court and subordinate courts with extended powers/ there is no provision similar to/ leave alone one identical with s.S (2) (d) reprocfuced above. For this . -, . ~ '•' -, very obvious reason/ we have found ourselves constrained to accept without any demu 0 Ms Fatuma s irresistible contention that the right of the DPP to appeal against "any acquittal sentence or order made or passed by the High Court or by subordinate court exercising extended_powers/ ✓ , was /eft U(J(vttered bj/ total prohibition against appeals or revision applications to this Court in relation to preliminary or interlocutory decision or order. // Even in this case, in view of the afore-going and by virtue of the provisions of section 5 (2) (d) of the AJA, we find that the respondents' notices of cross appeal are misconceived simply because 18

the. law prohibits any appeal or application for revision against interlocutory orders unless they have the effect of concluding the matter. As such we strike them out the Court's Registry. - · For the a foregoing reasons, we allow the appeal and quash the order of the High Court. Since the defence had no objection, we direct that the said "panga" be admitted as an exhibit and the matter proceed from where it ended. It is so ordered. DATED at TABORA this 31 st day of August, 2017. B. M. LUANDA JUSTICE Of APPEAL .··s. -iv1.'MMILLA JUSTICE Of APPIEAl R. K. MKUYE JUSITCIE OF APPEAL I certify that this is a true co··P of the Original. ,~l i/ / . tt/\ ., - -~~,;,,.::_ . '• ·-; A. H.MSUMI DEPUTY REGISTRAR COURT OF APPEAL 19