E Makame, JA delivered the following considered judgment of the court:
This appeal by the Director of Public Prosecutions first came before this court in November 1988 but it was not possible to be proceeded with because the respondent, Eston Seleman, was absent and unserved. This time the respondent again did not appear but it was possible to hear the appeal, and F we heard it, because he has now been served and it is permitted to hear an appeal in such a situation by virtue of Rule 72(6) of Tanzania Court of Appeal Rules which provides:
G If on the day fixed for the hearing of an appeal the respondent does not appear in person or by advocate the appeal shall proceed unless the court sees fit to adjourn the hearing.
The above subrule must of course be read together with, and is subject to, Rule 72(1) which H provides that `The Registrar shall cause notice to be given to the appellant and to the respondent of the time and place of which an appeal will be heard' and Rule 73(1) which says that both the appellant and the respondent shall be entitled to be present at the hearing of the appeal. So that before the respondent's presence can be dispensed with under rule 72(6), there must be proof, as I there is in the instant appeal, that the
respondent was made aware of the time and place at which the appeal would be heard. A
This appeal has a back-drop which is out of the ordinary. In the District Court of Tabora at Tabora the respondent was charged with being in possession of a firearm without a licence to which he pleaded guilty and was fined Shs 90/= or eight months imprisonment in default. There is incidentally no B indication as to whether or not he in fact paid the fine, so those responsible may wish to follow up that matter.
The respondent was also charged with causing grievous harm to which he pleaded not guilty. He C was duly tried and at the end of the trial he was found to have committed the act. He got a conditional discharge but he was also ordered to pay Shs 15,000/= as compensation to the person he had emptied his muzzle gun on.
Thereafter, incidentally, the learned trial magistrate committed the illegality of ordering the respondent to be remanded in custody until he paid the compensation money. This was on 19 March 1985 and D the respondent was accordingly remanded. Nine days later a prison officer, Cpl Kibira, apparently took some initiative: He went to the trial magistrate and told him,
Your Honour the committal order is not clear as to what should be the fate of the convict if the compensation is not E paid. For how long should the convict remain in our custody?
The trial magistrate had the respondent brought before him on 1 April 1985 and when the respondent F informed the court that his relatives were looking for the money the magistrate further remanded him for fourteen days `to compel his relatives to pay the ordered sum. If they shall fail to pay them an order for distress shall be given'. G
The foregoing orders were irregular and it is distressing to note that the High Court made no comment on them when the matter reached there, albeit on some other issue, which we shall presently turn to. If the respondent failed to pay the compensation ordered the next step would be to order distress. Only in default of distress is an accused person liable to imprisonment, `for a term H not exceeding six months unless such (costs or) compensation shall be sooner paid'. There is no question of remanding him in custody to compel his relatives to pay.
The Director of Public Prosecutions appealed to the High Court complaining that the case was not fit for a conditional discharge I
A and that the compensation award was too small. The pubic prayed for a custodial sentence and enhancement of the compensation. The matter was taken before Korosso J on 26 February 1987 but the respondent was not in court. The State Attorney asked for an adjournment so that the respondent B might be served. His lordship did not grant the adjournment prayed for, instead he said:
It is true that under normal circumstances the respondent must be present at the hearing of the appeal of this nature. But having gone on the evidence on both the prosecution and the accused as recorded by the trial court and I having formed the opinion that the respondent should in the first place have been charged with the offence of C murder c/s 195 of the Penal Code, I find it unnecessary hearing his evidence.
This must have been shattering to the learned State Attorney because not only was the appeal not D heard but, more important, the victim Lucas Jacob the respondent had shot at had not died and had in fact been PW1 at the trial. Little doubt that Mr Nyabiri, the State Attorney said,
E As the court had decided to order that the respondent be charged with the offence of murder I do not think I will have anything to submit to your Lordship.
When the learned judge eventually delivered the judgment on 2 March 1987 he quashed the trial F court proceedings and indeed ordered the respondent's immediate arrest so that he might be tried for murder.
Mr Tendwa, learned State Attorney before us, was quite brief. He pointed out what the Director of G Public Prosecutions had gone to the High Court for and the unexpected result he got. Mr Tendwa finally asked us to remit the matter back to the High Court for the appeal to be heard.
There is no doubt that the High Court order was unusual and we think it was an unhappy slip on the H part of the learned High Court judge: a charge of murder of course presupposes an unlawful killing, whereas here there was no killing at all, let alone an unlawful one. The Director of Public Prosecutions' appeal was not heard at all and the respondent had no opportunity to respond to the issues raised. This appeal must of necessity succeed. We accordingly allow the appeal and set aside the impossible order. We remit the matter back to the High Court for the High Court to hear the I appeal on
merit after duly complying with the provisions of s 381 of the Criminal Procedure Act. A