Court name
High Court of Tanzania

Sadiki Athumani vs Republic () [1988] TZHC 7 (01 April 1988);

Law report citations
1986 TLR 235 (TZHC)
Media neutral citation
[1988] TZHC 7

Samatta, J.: This is a second appeal.  The appellant was convicted, together with another person who has C elected not to appeal, of cattle theft, contrary to s. 265 and 268 of the Penal Code.  He and his co-accused were each sentenced, in accordance with s. 5(c) of the Minimum Sentences Act, 1972, to five years' imprisonment.  Their appeals to the District Court of Iramba District were unsuccessful. D
The District Court determined the appeals without giving the appellants, who in their respective Petitions of Appeal did not indicate that they did not like to be present at the hearing, the opportunity to be heard.  Quite right, Mr. Mwambe, for the Republic, conceded that the denial of the opportunity to be heard was a serious E  error in law.  It is not clear from the record of the case why the learned magistrate who "heard" the appeals strayed into that error.  One hopes that it was not because he thought that the appeals were unarguable.  I express that hope because, as I understand the law, once an appeal is admitted to hearing, the appellant is, F  regardless of the chances of success of the said appeal, entitled to be heard against the judgment, decision or order he has appealed against and must be given the opportunity to exercise that right.  Grievous injustice is done to a person who is not given the opportunity to be heard at the hearing of his appeal against a judgment which is G  prejudicial to his interests.  The requirement that a party to proceedings must be given the opportunity to state his views is a fundamental principle of natural justice.  The true legal position regarding the purport and implications of that right was, if I may respectfully say so, correctly stated by the Supreme Court of India in Tellis and Others v Bombay Municipal Corporation and Others [1987]  LRC (Const) 351.  Speaking through H  Chandrachud, C.J., the Court said at pp 376-377:
   The proposition that notice need not be given of a proposed action because there can possibly be no answer to it, is I  contrary to the well-recognised understanding of the real import of the rule of hearing.  That proposition overlooks that

justice must not only be done but must manifestly be seen to be done and confuses one for the other.  The A  appearance of injustice is the denial of justice.  It is the dialogue with the person likely to be affected by the proposed action which meets the requirement that justice must also be seen to be done.  Procedural safeguards B  have their historical origins in the notion that conditions of personal freedom can be preserved only when there is some institutional check on arbitrary action on the part of public authorities.  (see Kadish, "Methodology and Criteria in Due Process Adjudication - A Survey and Criticism" (1957) 66 Yale LJ 319, 340).  The right to be C  heard has two facets: intrinsic and instrumental.  The intrinsic value of that right consists in the opportunity which it gives to individuals or groups, against whom decisions taken by public authorities operate, to participate in the D  proceedings by which those decisions are made, an opportunity that expresses their dignity as persons.  [Goldberg v Kelly 397 US 254, 264-165 (1970) (right  of the poor to participate in public processes).]
Whatever its outcome, such a hearing represents a valued human interaction in which the affected person E  experiences at least the satisfaction of participating in the decision that vitally concerns her, and, perhaps the separate satisfaction of receiving an explanation of why the decision is being made in a certain way.  Both the F  right to be heard from, and the right to be told why, are analytically distinct from the right to secure a different outcome; these rights to interchange express the elementary idea that to be a person, rather than a thing, is at least to be consulted about what is done with one.  Justice Frankfurter captured part of this sense of procedural G  justice when he wrote that the "validity and moral authority of a conclusion largely depends on the mode by which it was reached....  No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.  Nor has a better way been H  found for generating the feeling, so important to a popular government, that justice has been done"  Joint Anti-fascist Refugee Committee v McGrath 341 US 123, 171-72 (1951).  At stake here  is not just the much-acclaimed appearance of justice but, from a perspective that treats process as intrinsically significant, the I  very essence of justice.  (See American Constitutional Law by Laurence H. Tribe, Professor of Law, Harvard University 1978 Edn., p. 593).

The instrumental facet of the right of hearing consists in the means which it affords of assuring that the public rules A  of conduct, which result in benefits and prejudices alike, are in fact accurately and consistently followed.  In an earlier case, S L Kapoor v Jagmohan (1981 1 SCR 746, cited in Tellis' case (supra), the same Court, speaking through Chinnappa Reddy, J., said at p. 766: B
   In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed.  The  non-observance of natural justice is itself prejudice to any man and C  proof of prejudice independently of proof of denial of natural justice if necessary.  It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced.  (the underscoring is supplied)
Can courts say natural justice need not be observed by them as they know how to render justice without D  observing natural justice?  In the Indian case of National Textile Workers'  Union and Others v Ramakrsihman and Others [1980-84] LRC (Comm) 729, Reddy, J, posed that question and proceeded to E  answer it, at p. 749, as follows:
   It will surely be a travesty of justice to deny natural justice on the ground that Courts know better.  There is a peculiar and F  surprising misconception of natural justice, in some quarters, that it is, exclusively, a principle of administrative law.  It is not.  It is first a universal principle and, therefore, a rule of administrative law.  It is that part of the judicial procedure G  which is imported into the administrative process because of its universality.  "It is of the essence of most systems of justice - certainly of the Anglo-Saxon System - that in litigation both sides of a dispute must be heard before decision, "Audi alteram partem" is as much a principle of African as it is of English legal procedure; a popular Yoruba saying is: H  wicked and iniquitous is he who decides a case upon the testimony of only one part to it (T.O. Elias, The Nature of African Customary Law).  Courts even more than administrators must observe natural justice.
I respectfully concur in these observations and desire to adopt them as representing my views.  In the case now I  before me, clearly

the learned magistrate strayed into a grave error in law in not giving the appellants the opportunity to be heard.  A  There is no provision in section 20, 21 or 34 of the Magistrates' Courts Act, 1984 (hereinafter referred to as  "the Act") - the sections governing the appellate jurisdiction of the District Courts - which empowers a District B  Court to dispense with the observance of natural justice.  On the contrary, the right of hearing, as far as criminal appeals heard in the District Courts are concerned, is statutorily recognised.  The recognition is embodied in s. 34(2) of the Act.  The subsection reads as follows:
   (2) An appellant or other party, whether in custody or not, shall be entitled to be present at the hearing of an appeal under C  this part:
      Provided that where an appellant or other party is in custody, his right to be present at the hearing of the appeal D  shall, unless the court directs that his presence is desirable for the due determination of the appeal in which case the expenses of transferring him to and from the place to hearing shall be borne by the Republic, be subject to his E  paying all expenses incidental to his transfer to and from the place where the court sits for the determination of the appeal.
The right of presence at the hearing of an appeal is not confined to physical presence; it includes the right to F  participate in the proceedings in question by, inter alia, making submissions on issues raised by the appeal with a view of assisting the Court to reach a just and correct decision.  As rightly pointed out in Tellis' case (supra), the G  point of the right of hearing is "less to assure participation than to use participation to assure accuracy."  The right is a very important one and the denial of it is a grave error which vitiates the proceedings in the District Court.  The error is, in my judgment, incurable under the provisions of s. 37(2) of the Act.
For the reasons I have given, I allow the appeal and set aside the decision of the District Court in so far as it H  relates to the appellant.  Exercising my revisional jurisdiction, I also set aside the District Court's decision dismissing the appellant's co-accused's appeal before that court.  It is ordered that the two appeals before the District Court  be heart de nove by another magistrate of competent jurisdiction. I
Order accordingly
1986 TLR p240