Mselemu v Republic (Criminal Appeal 3 of 1981) [1983] TZHC 714 (26 May 1983)

190 TANZANIA LAW REPORTS [1985]T.L.R A 176 of the Criminal Procedure Code. Both these provisions, however, come into play only when a person has been convicted of an offence. Since the appellant was not convicted of an offence, or rather he had been absolved of criminal liability, I cannot see how this order of compensation can stand. The same is hereby, therefore, quashed and set B aside. Ifthe appellant has already paid the compensation then the same should now be refunded to him. I may mention in passing that the way is left open to the complainant, if he so wishes, to proceed by way of a civil suit against the appellant. All in all this appeal succeeds and it is hereby allowed. Appeal allowed BAKARIMSELEMU v. REPUBLIC [HIGH COURT OF TANZANIA AT TANGA (Maina J.)] CRIMINAL APPEAL 3 OF 1981 Criminal practice and Procedure - Hearing - Case disposed of in F the absence of the accused - No evidence that accused absconded deliberately - Whether conviction proper and just - Criminal Procedure Code, s. 202A [now s. 227 of the Criminal Procedure Act, 1985]. The appellant was released on bail after the close of the prosecution case. He did not 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 H prosecutor alleged that the appellant was hiding in the forests. On that basis the court ordered the appellant ’ s arrest and subsequently, proceeded to 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 I evidence that the absence of the appellant was deliberate or that he and his sureties were informed of the date the case was to be called for hearing.

BAKARI MSELEMU v. REPUBLIC (Maina, J.) 191 Held: A trial court can proceed to dispose of a case in the absence of A the accused 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 absconded deliberately, the conditions for proceeding in his absence were not met B and therefore he was convicted without being given an opportunity to defend himself. Appeal allowed. C No cases referred. May 26,1983. 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. 1 979 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 had a cow which he wanted to sell. But since Rashidi knew that complainant ’ s cow had been stolen E 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 was arrested on the spot and he was F 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 the appellant ’ s H 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 the prosecutor I told the court that he was informed that the appellant was sleeping in the

192 TANZANIA LAW REPORTS [1985]T.L.R A forests. It is on this basis that the court ordered for the appellant ’ s arrest and finally the 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 B 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 section 202A of the Criminal Procedure Code which states: Where in any case to which section 202 does not apply, an accused C person being tried by a subordinate Court fails to appear on the date fixed for the continuation of the hearing after the 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 D of the case in accordance with the provisions of section 210 as if 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 E case in the absence of the accused under section 202A of the Criminal Procedure Code where the accused is 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 F decided to 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 G they were not in Court. 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 H that warrant in the original file. It is therefore difficult to believe 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 I he had absconded or that he deliberately failed to appear in Court on the

MESCO LUCAS v. REPUBLIC (Maina, J.) 193 date he was required. The appellant was convicted without being given A an opportunity 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 sentence is set aside. B I have considered whether I should order a retrial. The appellant was, according to the record of the District Court, committed to prison on 1 4th 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 injustice C to the appellant. It is ordered that the appellant be released from custody forthwith unless he is otherwise lawfiilly held. Appeal allowed. D MESCO LUCAS v. REPUBLIC E [HIGH COURT OFTANZANIA AT TANGA (Maina, J.)] CRIMINAL APPEAL 4 OF 1981 Criminal Practice and Procedure - Alternative verdicts - Accused F charged with housebreaking but convicted of malicious damage to property - Whether conviction is proper - Criminal Procedure Code, ss. 181 - 188. The two appellants were charged with housebreaking and stealing a radio G cassette but they were only convicted of stealing the radio; the first accused, however, was also convicted of malicious damage to property. The convictions were based on circumstantial evidence. The finding for malicious damage to property was based upon a finding that the first accused was a resident of the house from where the radio was stolen and H he stole it without having to break in or out of the house, but he intentionally damaged the rear door to make it appear that someone else had broken the door and stolen the radio. Held: The powers of convicting a person for an offence other than the I one charged are laid down by statute and they do not include a power to