Mr. Magoma, learned Principal State Attorney, appeared for the respondent Republic. At first, he indicated that he was supporting
conviction, however, upon reflection, he declined. According to Mr. Magoma, as the conviction was solely based on the evidence of
PW2, the victim of the alleged rape, the learned judge on first appeal should have heard the appeal on merit and not summarily rejecting
it. If the appeal was heard on merit, Mr. Magoma submitted, the issues raised in this appeal would be examined, analysed and decided
upon. In the circumstances, he maintained that it was improper for the learned judge on first appeal to invoke the provisions of
section 36 (1) (c) of the Criminal procedure Act, 1985 to reject the appeal without hearing it.
With respect, we think there is merit in the submission of Mr. Magoma, learned Principal
State Attorney. From the evidence as outlined above, there are a number of issues which needed to be addressed in relation to the
evidence of PW2 and the medical evidence based on PF3 which was tendered by PW1. For instance, in the PF3 Exh. P1, three cut wounds
are shown to have been inflicted by use of a sharp weapon. The wounds are described as dangerous. However, the Doctor who attended
PW2 was not called to testify and clarify on the injuries. However, it is to be observed at once that despite the absence of the
doctor, it was open for the judge on first appeal to address this issue and come to the conclusion one way or the other. Incidentally,
this issue was also raised in the grounds of appeal filed in the High Court.
Furthermore, the circumstances in which the appellant was arrested is yet another
aspect which could be gone into in detail if the appeal was heard on merit.
In Iddi Kondo v The Republic, Criminal Appeal No. 46 of 1998 (unreported) which was referred to us by the appellant in ground 2 of the memorandum of appeal, the
Court among others, underscored the following principles:
(1) Summary dismissal is an exception to the general principles of Criminal law and Criminal Jurisprudence and, therefore, the powers
have to be exercised sparingly and with great circumspection.
(1) to (4) ccccccccccccccccccc
(5) Where important or complicated questions of fact and/or law are involved or where the sentence is severe the court should not
summarily dismiss an appeal but should hear it.
This case, we are satisfied falls within the ambit of principle 5 stated above. Not
only were important questions of fact and law raised, but the sentence imposed of thirty (30) years imprisonment is no doubt, severe.
For this reason, we think with respect, the learned judge on first appeal, should have heard the appeal on merit. Having heard the
appeal on various points raised, it was open for the judge to consider and weigh on scale the evidence and all the circumstances
of the case in order for her to make her own findings with a view either to sustain the trial magistratefs decision or not.
As happened in this case, we are unable to tell whether the learned judge on first appeal would have come to the same conclusion
or not had she heard the appeal on merit. We do not think that in the circumstances of the case, this is a fit case for this Court
as a second appellate Court could step into the shoes of the High Court by invoking its revisional jurisdiction under section 2 (4)
of the Appellate Jurisdiction Act, 1979, as amended.
For these reasons, we agree with Mr. Magoma, learned Principal State Attorney, that the circumstances of the case were such that it
was improper for the learned judge to reject the appeal summarily. In our view, Mr. Magoma correctly declined to support the decision
of the High Court.
Accordingly, the decision of the High Court of 5.9.2000 is quashed and set aside. It is ordered that the matter be remitted to the
High Court with direction to hear the appeal on merit.
DATED at DAR ES SALAAM this 27th day of June, 2006.
.RTF of original document