Court name
Court of Appeal of Tanzania

Director of Public Prosecutions vs Fonja Mathayo () [1994] TZCA 33 (28 November 1994);

Law report citations
1995 TLR 23 (TZCA)
Media neutral citation
[1994] TZCA 33

Kisanga, J.A., delivered the following considered judgment of the court:
The respondent was convicted by the District Court for shop breaking and stealing contrary to s 296(1) of the Penal Code. He was sentenced to three years' imprisonment, with an order to compensate the victim of the offence in the sum of Shs 691,600/= being the value of the property stolen from him. The respondent appealed to the High Court which declared his trial a nullity by reason of a

A breach of the mandatory provisions of s 225(4) and (5) of the Criminal Procedure Act. It is against that decision that the Director of Public Prosecutions is now appealing to this Court.
In this appeal the Republic was represented by Mr Mono, learned Principal State Attorney, but the respondent was absent and unrepresented. When the appeal first B came on for hearing on 21 October 1993 the Court was informed by the Registry that the summons to the respondent was returned unserved. Upon Application by the Republic, the hearing was adjourned to a later date in the Session to allow for the prosecution to make another attempt to serve the C respondent. On 1 November 1993 the Court was informed that the summons to the respondent was returned unserved with the endorsement on it to the effect that the respondent escaped upon seeing the process server. Whereupon the Court directed process by substituted service through publication of the notice of hearing D in the Uhuru newspaper. On 17 November 1994 during the current Session, the Court was informed by the Registry that substituted service was duly effected through publication of the notice of hearing in the Uhuru newspaper on 1 and 2 November, 1994. The Court took this to constitute sufficient notice and proceeded to hear the appeal. E
Mr Mono filed and argued only one ground of appeal, the essence of which was that the learned High Court judge erred in holding that a breach of s 225(4) and (5) of the Criminal Procedure Act renders the trial a nullity. For this view he relied on the decision of this Court in the case of John Joseph Onenge and Another v Republic (1) involving similar facts. F
In the present case the learned High Court judge found that the trial court had granted adjournments after the expiry of the aggregate of 60 days periods in terms of the time frame stipulated under s 225 of the Criminal Procedure Act without the G requisite certificates by the specified officers pursuant to paras (a), (b) and (c) of ss (4) of that section. In the case of John Joseph Onenge and Another cited above, we held that a breach of s 225(1) and (4) which did not effect the substance of the trial does not render the trial a nullity. That principle equally H applies here. For, as in that case, it has not been suggested that the granting of  adjournments in the present case prejudiced the respondent in his defence or in any way affected the conduct of his trial.
Perhaps it is pertinent to note here that during the adjournments the respondent was out on bail, unlike in the case of John Joseph Onenge and Another where the appellants remained in remand I

custody. So the principle here applies with even greater force, but the main point A being emphasized is that the adjournments did not in any way affect the conduct of the trial, the process by which the issue of the respondent's guilt or innocence was determined.
At the same time we desire to make it quite clear that we do not in any way view lightly breaches of the provisions of s 225 of the Criminal Procedure Act which have been designed to protect and safeguard the liberty of the accused person in a criminal case. B
Section 225 of the Act is an important provision for the safeguard of the basic rights of an individual accused of a criminal offence. It is for that reason that we C renew our call upon the magistracy to be more vigilant in the application of that section in order to ensure that accused persons really enjoy the protection which the provisions of that section seek to accord to them.
For the foregoing reasons we allow the appeal by the Republic and set aside the D judgment of the High Court. In fairness to the High Court, however, we have to add that our decision in the case of John Joseph Onenge and Another v Republic above cited was handed down only after the judgment of the High Court in this case was given. So that the learned High Court judge cannot have been aware of that judgment before he delivered his own. We have every reason to think that had he seen that judgment before he would have decided the case before him differently. E
The learned High Court Judge, having declared the proceedings of the District Court a nullity, rightly refrained from considering the merits of the appeal before him, and instead ordered a trial denovo. However, in the light of the decision we F have taken of setting aside the judgment of the High Court, we remit the matter to that Court with a direction that the Court now proceeds to consider the appeal on the merits. G

A