OLONYO LEMUNA AND LEKITONI LEMUNA v REPUBLIC 1994 TLR 54 (CA)

OLONYO LEMUNA AND LEKITONI LEMUNA v REPUBLIC 1994 TLR 54 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Ramandhani JJA and Lubuva JJA

E CRIMINAL APPEAL NO. 123 OF 1993

15 November, 1993

F (From the decision of the High Court of Tanzania at Arusha, Munuo, J)

Flynote

Criminal practice and procedure - Right of accused to be heard - Accused persons

jump bail and do not appear G in court for hearing shortly before close of the

prosecution case - Case proceeds in their absence - Whether conviction proper - ss

226 and 227 of the Criminal Procedure Act 1985.

-Headnote

H The two appellants were jointly charged in the District Court of Monduli with

robbery with violence contrary to sections 285 and 286 of the Penal Code. Just before

the prosecution closed its case they jumped bail and the rest of the proceedings were

conducted in their absence. They were convicted and sentenced in absentia in terms

of the provisions of s 227 of the Criminal Procedure Act 1985, and sentenced to 8

years imprisonment and an order of compensation of Shs 60,000/= the worth of I the

three goats the subject of the charge. Their appeals to the High Court were dismissed,

and their prison sentence was enhanced to fifteen years. On further

1994 TLR p55

appeal to the Court of Appeal they asserted that, the trial having proceeded in their

absence, they A were not given the opportunity to be heard.

Held:

(i) Section 226(2) of the Criminal Procedure Act 1985 makes provision for

the court to set aside a conviction entered in the absence of the accused if it is

satisfied that the absence was due to causes beyond the control of the accused; this

accords to the accused person B an opportunity to be heard;

(ii) Section 227 of the Criminal Procedure Act 1985, which allows the

conviction of an accused person in absentia, can only be invoked when an accused

person being tried by a subordinate court fails to appear in court for hearing after the

close of the prosecution case; C

(iii) Only prior to the close of the prosecution case are the circumstances set

out in s 226 of the Criminal Procedure Act 1985 applicable; after the close of the

prosecution case, s 226 is inapplicable and s 227 takes over;

(iv) As in this case the appellants absconded before the prosecution closed

its case, the trial D court misapplied the provisions of s 227 of the Criminal

Procedure Act 1985;

(v) Having misapplied s 227 of the Criminal Procedure Act 1985, justice in

this case would be met if the discretionary powers under s 226(2) of the Act were

invoked and have the case re-opened. E

Case Information

Proceedings remitted to the trial court.

No case referred to.

Mono, for the respondent.

[zJDz]Judgment

Lubuva, JA delivered the considered opinion of the court: F

The two appellants are brothers. They were jointly charged in the District Court of

Monduli with the offence of robbery with violence contrary to ss 285 and 286 of the

Penal Code. They were duly arraigned when the trial started on 17 August 1992.

When the charge was read over and explained to G them, both of them pleaded not

guilty. Just before the prosecution closed its case the appellants jumped bail. The rest

of the proceedings in the trial were therefore conducted in their absence.

Consequently on 19 February 1993 they were convicted and sentenced in absentia in

terms of the H provisions of s 227 of the Criminal Procedure Act 1985. They were

sentenced to 8 years imprisonment together with an order of compensation of Shs

60,000/= the worth of the 3 goats, the subject of the charge. On appeal to the High

Court (E N Munuo J) against the conviction and sentence, the appeals were dismissed.

The sentence of 8 years imprisonment was set aside and substituted therefore a I

1994 TLR p56

LUBUVA JA

A sentence of 15 years imprisonment. They have now appealed to this Court.

In their memorandum of appeal the appellants, as it was in the High Court on first

appeal, have raised a number of points of complaint. In our view, the most important

ground is the one in which the appellants assert that both the lower courts erred in

sustaining the conviction because they were B convicted in absentia. The trial

having proceeded in their absence, they were not given the opportunity to be heard.

They also raised the question of identification. That they were not properly

identified.

C Mr J D Mono, learned Principal State Attorney who appeared for the Republic,

respondent sought to support the conviction arguing that this being a second appeal

apart from the issue of the appellant's conviction in absentia there was no point of law

involved, the appeal on the conviction is devoid of any merit. It should be dismissed.

Mr Mono stressed that the question of identification was D a matter of fact which

was dealt with by both courts below. It should not be entertained on second appeal.

Mr Mono then advanced further arguments concerning the conviction and

sentencing of the E appellants in absentia. He contended that in the circumstances of

the case, if this Court is satisfied that the provisions of s 226(2) of the Criminal

Procedure Act were not properly invoked by the trial magistrate, the matter should

be remitted back to the trial court. In this way, if we understood Mr Mono, the

learned Principal State Attorney, the appellants could be heard on their defence if

they had F any.

We shall only deal with the ground on the appellant's conviction and sentence in

absentia. The determination of this matter hinges on this point. It raises an important

legal point of procedure in connection with the administration of criminal justice. On

this aspect, it is convenient to set out the G sequence of events as shown from the

record. As indicated when the trial started, both the appellants were present in court

until sometime when the prosecution were about to close their case, when they

jumped bail. On 4 February 1993 when the case was called up for hearing the H

Prosecutor applied for an adjournment. Again the record shows that both the

appellants were absent that day. The case was adjourned until 11 February 1993 for

mention. Arrest warrants were ordered to be issued against the appellants.

On 11 February 1993 when the case was supposed to come up for mention, the record

shows that instead, the trial was proceeded with in the absence of the appellants. The

record further shows that I the

1994 TLR p57

LUBUVA JA

Public Prosecutor indicated to the court that he had one more witness to call when he

said: `I have A got the remaining witness.' As the case had been fixed for mention

that day, it was expected that the court would normally fix the next hearing date

when, perhaps the accused would have been traced. Instead for no apparent reason

the trial was proceeded with.

Detective Constable Linus (PW5) gave evidence for the prosecution. His evidence was

formal. He B was the arresting officer. That was the essence of his evidence. With

this evidence, the prosecution closed its case. Judgment was to be delivered on 12

February 1992 and the arrest warrant was extended. The judgment was delivered on

19 February 1993 still in the absence of the appellants. In C the judgment, the

learned trial magistrate indicates that as the appellants had absconded, the trial was

proceeded with under the provisions of s 226 of the Criminal Procedure Act 1985.

Acting under the provisions of s 227 of the Criminal Procedure Act 1985 the learned

trial magistrate proceeded to D convict and pass sentence against the appellants in

absentia wherein it was recorded:

'Judgment read in court to the prosecution represented by Ass Insp Malle.

Accused person (sic) are at large.'

Three days later (22 February 1993) the record indicated that the first appellent,

Olonyo Lemuna, E was brought to the court under arrest. Following from that it

appears that the court informed the first appellant of the judgment and sentence that

had been handed down on 19 February 1993. It was F done in the following words

by the learned magistrate:

'I am just pronouncing the sentence to the accused. Also, it shall give him the

right of appeal.' G

Otherwise, as for the second appellant, Lekitoni Lemuna, the record does not show

when he was arrested to start serving the sentence. However, as pointed out by the

learned judge on first appeal, the second appellant was subsequently arrested and

committed to the prison to serve the sentence. H This is evident from the requisite

Notices and Memorandum of Appeal filed in which both the appellants feature.

With this background information on the sequence of the proceedings of the trial in

the absence of the appellants it is convenient at this juncture to examine closely how

the matter was dealt with at I

1994 TLR p58

LUBUVA JA

A the High Court. This matter was specifically raised by the appellants in their

memoranda of appeal. The learned judge addressed herself to this issue in these

words:

"The accused jumped bail so they were convicted in absentia under s 227 of

the Criminal Procedure Act 1985. They B were subsequently arrested and

committed to prison to serve an eight year sentence which sentence, I note is illegal

because the minimum sentence for the offence of robbery is now fifteen years jail.'

(Emphasis supplied.)

C With respect, we are of the view that on appeal the learned judge examined

sufficiently the evidence on identity and the propriety of the sentence imposed. On

this she properly directed herself and reached a sound conclusion. But the question of

the legality or otherwise of the procedure followed at the trial resulting in the

conviction and sentencing of the accused in absentia was not D unfortunately look

into beyond the extent explained above.

Now we turn specifically to the provisions of s 227 of the Criminal Procedure Act

1985. The issue is whether in the circumstances of the case as set out, the provisions

of this section were properly invoked? In order to appreciate the import of this

section, it is important to set it out in full starting with E s 226 both of which have to

be read together.

Section 226 reads:

F '226(1) If at the time or place to which the hearing or further hearing shall be

adjourned, the accused person shall not appear before the court which shall have

made the order of adjournment, it shall be lawful for such court to proceed with the

hearing or further hearing as if the accused were present and if the complainant shall

not appear, the court may dismiss the charge and acquit the accused with or without

costs as the court shall think fit.

G (2) If the court convicts the accused person in his absence it may set aside such

conviction upon being satisfied that his absence was from causes over which he had

no control, and that he had a probable defence on the merit. (Emphasis supplied.)

(3) . . .

H (4) The court, in its discretion, may refrain from convicting the accused in his

absence, and in every such case the court shall issue a warrant for the apprehension of

the accused person and cause him to be brought before the court.'

And s 227 of the Criminal Procedure Act 1985 provides:

I '217. Where in any case to which s 226 does not apply, an accused

1994 TLR p59

LUBUVA JA

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

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

fixed for the passing of a 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 s 231 as if the accused being present, has

failed to make any statement or B adduce any further evidence, in relation to any

sentence which the court may pass; save that:

(a) where the accused so fails to appear but his advocate appears, the

advocate shall subject to the provisions of this Act, be entitled to call any defence

witness and to address the court as if the accused has been or is C convicted, and the

advocate shall be entitled to call any witness and to address the court on matters

relevant to any sentence which the court may pass; and

(b) where the accused appears on any subsequent date to which the

proceedings have been adjourned, the proceedings under this section on the day or

days on which the accused was absent shall not be invalid by D reason only of his

absence.'

As s 231 of the Criminal Procedure Act 1985 provides for the defence of an accused

person, it is important to set it out here. It reads: E

'231(1) At the close of the evidence in support of the charge, if it appears to

the court that a case is made against the accused person sufficiently to require him to

make a defence either in relation to the offence with which he is charged or in

relation to any other offence of which under the provisions of s 312-321 inclusive of

this Act, he is liable F to be convicted, the court shall again explain inclusive

substance of the charge to the accused and inform him of his right.

(a) to give evidence whether or not on oath or affirmation on his own

behalf, G

(b) to call witnesses in his defence; and shall then ask the accused person

or his advocate, if it is intended to exercise any of the above rights and shall record

the answer etc.'

These are very clear provisions governing criminal proceedings. The importance of

trial courts to H strictly comply with laid down rules of procedure need not be

overemphasized. They are the basic guidelines in the process of administering justice

in courts. In our view, in order for the courts to apply these rules properly, firstly, it is

necessary to have a clear understanding of such provisions and the rationale behind

them. Secondly, the rules must be looked into within the whole context and I not

singly. If a particular rule of procedure is

1994 TLR p60

LUBUVA JA

A considered in isolation, there is the danger of applying such a rule in

circumstances which are otherwise inappropriate.

In the instant case, the above cited rules of procedure laid down under the Criminal

Procedure Act 1985 have to be read together in order to determine at what stage an

accused person can be B convicted and sentenced in absentia. In our understanding,

various provisions of the Criminal Procedure Act 1985 as set out above, were among

other reasons aimed at speeding up trials. For instance the non-appearance of the

accused persons on the dates fixed for the hearing of the case due to reasons which

could otherwise be avoided accounts for further delays in the disposal of C cases. In

order to minimize delays of this kind, sections 226 and 227 of the Criminal Procedure

Act 1985 were enacted. However, in doing so, the cardinal principle of affording

opportunity to the parties D to be heard is not to be overlooked. For that reason, s

226(2) makes provision for the court to set aside a conviction of a person sentenced in

absentia once the court is satisfied that the absence was due to causes beyond the

control of the accused. This accords to the accused person an opportunity to be heard

in defence against the prosecution case made against him. It must be made E quite

clear that only prior to the close of the prosecution case, in circumstances set out

therein, s 226 of the Criminal Procedure Act 1985 is applicable. Beyond that stage this

section is inapplicable from where s 227 takes over. In the instant case, we are

convinced that the trial magistrate was confused in the application of both ss 226 and

227 when he proceeded with the case under s 226 but F ended up by invoking s 227

in sentencing. These sections cover two different situations.

As already demonstrated in the present case, the appellants absconded at the stage of

the G proceedings when the prosecution had not closed their case. The evidence of

the arresting officer (PW4) was taken when the appellants were at large. Then the

prosecution case was closed and the judgment was handed down purportedly under

the provisions of s 227 of the Criminal Procedure Act 1985. The question arises as to

whether this section was properly applied at the stage of the case H reached. To our

mind, the operative words of this section are clear. That the section can only be

invoked when and accused person being tried by a subordinate court fails to appear in

court on the date fixed for the continuation of the hearing after the close of the

prosecution case or the date fixed for the passing of a sentence. In this case, this stage

had not been reached as the case for the I prosecution had not been closed. We are

of the settled view that

1994 TLR p61

LUBUVA JA

the general spirit behind the provisions of s 227 read together with s 231 and ss 312 to

321 is to deal A with the proceedings which have reached the stage beyond the close

of the evidence in support of the prosecution case. In the result on a close scrutiny of

the general scheme and objective of these provisions of the Criminal Procedure Act

1985, we are satisfied that the trial magistrate misapplied B the provisions of s 227.

The circumstances of the case and the stage reached in the proceedings are not, in our

view those envisaged for the application of this section. Unfortunately, the learned

judge on appeal to the High Court, fell into the same error.

Having taken the view that s 227 of the Criminal Procedure Act 1985 was misapplied,

what should be C done next in this case? In order to resolve this matter, we have

addressed ourselves seriously on the rationale behind the provisions of s 226. It is our

understanding that unlike s 227 which covers proceedings from the stage after the

close of the prosecution case, s 226(2) enables proceedings D which were proceeded

with to conviction from the stage before the close of the prosecution to be reopened if

the court is satisfied that the accused's absence was justified. In these circumstances

we are satisfied that the justice of the case would be met if the discretionary powers

under the provisions of subclause 2 of s 226 of the Criminal procedure Act 1985 were

invoked. That is to have E the case re-opened in terms of the provisions of this

section whereby if the court is satisfied that the appellant had justifiable reasons for

his absence it could hear his (appellant) defence. The right to be heard is a

cornerstone principle of justice. The appellants should have been afforded that F

opportunity. Then on the basis of such defence and the evidence of the prosecution

already at hand, judgment could be delivered. On this we are in agreement with Mr

Mono, learned Principal State Attorney who argued us to render the matter back to

the trial Court if s 227 was wrongly applied. G

Consequently, for these reasons the appeal is allowed to the extent explained. In

terms of Rule 36 of the Tanzania Court of Appeal Rules 1979 the proceedings are

remitted to the trial Court with direction to deal with the matter in compliance with

the provisions of subclause (2) of s 226 of the Criminal Procedure Act 1985. H

1994 TLR p62

A