F Maina, J: delivered the following considered judgment of the court:
The appellant was charged in the primary court at Mvumi with cattle theft and he was acquitted. On appeal to the district court at Dodoma, by the respondent who was the original complainant, the decision of the primary court was reversed, and the appellant was convicted of cattle theft as G charged and he was sentenced to five years imprisonment. This appeal is against the conviction.
Mr Rweyongeza, learned counsel for the appellant, argued several grounds of appeal, but I shall base my decision on one ground only, and that is the second ground of appeal. Mr Rweyongeza submitted, H in respect of the second ground of appeal, that the learned district magistrate erred in law in failing to serve a notice on the appellant, and in determining the appeal in the absence of the appellant, without giving the appellant an opportunity to be heard. Learned counsel cited s 21(1)(b) of the Magistrates' Courts Act 1984 which states in part that in the exercise of appellate jurisdiction, the I district court shall have
power to confirm, reverse, amend or vary in any manner, the decision of the primary court, and that, A
`. . . no conviction or conviction and sentence shall be substituted for an acquittal, and no sentence shall be enhanced, unless the accused or convicted person, as the case may be, shall have first been given an opportunity B of being heard'.
It is a fundamental principle of law that no person shall be condemned unheard. A person who has been acquitted by a trial court cannot be convicted by an appellate court without being given an C opportunity of being heard. Since the appellant was acquitted by the primary court, the district court, on appeal, had no power to substitute a conviction for the acquittal without first giving the appellant an opportunity to be heard. The requirement to give such an opportunity to the person who has been acquitted, is mandatory, and not discretionary. The learned district magistrate erred in law in not D giving the appellant the opportunity to be heard. The error is incurable. Mr Mbezi, learned counsel for the respondent, conceded that failure to give to the appellant an opportunity to be heard, was an incurable error in law and Mr Kifunda, learned State Attorney who appeared as amicus curiae, concurred.
For the reasons given, I agree with counsel that the appellant's conviction cannot stand. I quash the conviction and set aside the sentence. As the appellant has served one year and nine months out of the five years imprisonment, it is, in my view, fair and in the interest of justice that the appeal be re-heard in the district court. Since the appellant has not served a substantial term of the sentence imposed, it is necessary that the appeal be re-heard by the district court.
Having found that the district magistrate erred in law in substituting a conviction for the acquittal, without giving the appellant an opportunity to be heard, I do not consider it is necessary to decide on the other grounds of appeal. The other grounds are based on the evidence, and anything I comment on the evidence will prejudice the magistrate who will hear the appeal in the district court.
The appeal is allowed. The proceedings before the district court are declared a nullity. The conviction is quashed and the sentence is set aside.
It is ordered that the appeal be heard de novo in the district court by another magistrate of competent jurisdiction.
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