DPP smiles his way to the appeal court

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THE Director of Public Prosecutions has won an appeal against the High Court to admit as exhibit a “panga” in the trial of four people charged with murder of their village-mate.

This follows a judgment given by the Court of Appeal to allow two grounds of appeal the DPP had advanced to fault the decision of the High Court given on February 15, last year.

In his grounds of appeal, the DPP had alleged that the trial judge erred in law and in facts to reject the exhibit intended to be tendered in court without affording opportunity to defend or right to be heard.

He had stated that the High Court judge “erred in law and in fact” to rule out that the exhibit was not in preliminary hearing listed while in fact the same is in summary of facts narrated before the court.

In the judgment delivered before the court at Tabora recently, Justices Bernard Luanda, Batuel Mmilla and Rehema Mkuye pointed out that equality before the law and the right to a fair trial, are fundamental constitutional rights.

“Incidentally, this court has through various decisions settled down the law that denial of a fair hearing or trial is a fundamental irregularity which infringe the interests of justice or rather affect the people’s right to a fair trial,” they said.

According to the justices, in the instant case it was not in dispute that the trial judge rejected the panga sought to be tendered as exhibit. The court records show that after the defence counsel had not objected for its being tendered, the trial judge proceeded to reject it.

The High Court judge reasoned that the said panga was not listed during the preliminary hearing. As it were, he made that decision without first giving the parties an opportunity to submit for or against the tendering of the exhibit which is not listed during the preliminary hearing.

“We think that if the trial judge thought it to be a reason for rejecting the panga as an exhibit, he should have called the parties to submit on it before rejecting it on that basis. Failure to afford the (DPP) an opportunity to be heard amounted to the violation of the cardinal principle of natural justice,” they ruled.

For the foregoing reasons, the justices proceeded to allow the appeal by the DPP and quash the order of the High Court. “Since the defence had no objection, we direct that the said panga be admitted as an exhibit and the matter proceed from where it ended,” they declared.

In the High Court of Tanzania at Tabora, Abdallah Sauzi, Essau Abdallah, alias Saidi, Mussa Abdallah, alias Kabika and Frank Michael were jointly charged with the offence of murder.

It was alleged that on May 26, 2013 during the night hours at Itabundala village in Urambo District in Tabora Region, they murdered Jackson Kagoma.

When the information of murder was read over and explained to them on September 29, 2015, they each entered a plea of not guilty.

Thereafter, preliminary hearing was conducted by virtual of section 192 of the Criminal Procedure Act whereby a memorandum of agreed facts and lists of witnesses and exhibits to be relied upon were prepared.

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