20111123 TZCA Arusha

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IN THE COURT OF APPEAL OF TANZANIA

ATARUSHA (CORAM: RUTAKANGWA, J.A., LUANDA, J.A., And ORIYO, J.A. CRIMINAL APPEAL NO. 93 OF 2009 FARAJA LESE RIAN ................................... • ■■ Il •••••••••••••••••••••••••••••• APPELLANT THE REPUBLIC ...........................................,.............................. RESPONDENT {Appeal from the Judgment of the High Court of Tanzania at Arusha) · .,! \ {Sambo, J.) {Dated the 4 th day of December, 2008) in Criminal Appeal No. 154 of 2006

RULING OF THE COURT 17TH &23RD NOVEMBER, 2011 ORIYO, J.A.: The District Court of Arusha, sitting at Arusha, convicted the appellant of the offence of rape, contrary to sections 130 and 131 of the Penal Code, Cap. 16, as amended by sebtion 5 (2) (b) and section 6 (1) of the Sexual Offences (Special Provisions) Act No. 4 of 1998. He was sentenced to 30 years imprisonment. The appellant was aggrieved by both the conviction and sentence and unsuccessfully appealed to the High Court, hence this second appeal whose notice of appeal was filed on 5th I December, 2006, just one day after the ~igh Court decision was delivered. th On 13 October, 2010, the appellant's memorandum of abpeal was duly filed. At the hearing of the appeal, Mr. Zakaria ElisariaI learned State I I Attorney represented the respondent/Republic while the appellant I appeared in person. Before proceeding to the grounds Iof appeal, Mr. Elisaria sought leave of the Court to ad~dress us on some defect he had noted .in the notice of appeal. He said that the respondent ~oted the defect late on the day before the hearing and was thus unable to file in Court a I formal Notice of Preliminary Objection. Since a Notice of Appeal is ta fundamental document which institutes a criminal appeal to this Court, we decided to grant him leave. I The learned State Attorney 'drew owr attention to the notice of appeal . I ' filed on

5/12/2008. He said the notice of appeal shows that the appellant I intends to appeal against the decision of Samba, J. delivered in the High Court on 4/12/2008 in Criminal Appeal No. 156 of 2006.1 Further, he said that according to the record, it is shown that the decisi,on of Samba, J. 2 ! which was delivered on 4/12/2008 was in Criminal Appeal No. 154 of 2006 and not 156 of 2006. It was Mr. Elisaria's submission that according to Rule 61 (1) of the then Court of Appeal Rules, 1979, (the Rules), there wJs no notice of . i appeal filed. He prayed that the appeal be struck out on that account. On his part, the appellant told us of a letter from th~ Arusha Central ! I Prison where he is held, calling upon tKe registry of the Court to change the number. Rule 61 (1) of the Rules provide as follows:- I '~ny person who desires to appeal to the Court shall give notice in writing, .which shall be lodgkd in triplicate with the Registrar of the High Court ~t the · place where the decision against which it is desired I to appeal was given)' withitf.,fourteen days of the ' I I date of that decision, and the notice of appeal shall institute the appeal. " (Emphasis supplied) 3 I We have perused the record and verified that thej position is as clearly stated by the learned State Attorney. The appeal before us is I I th challenging the decision of Samba, J. delivered on the 4 D,ecember,

2008 in Criminal Appeal No. 154 of 2006. The notice of appeal found in the ' record of appeal states that the appellant intends to ch~llenge another decision of Samba, J. delivered on· the same date, that i~ 4th December, 2008, in Criminal Appeal No. 156 of 2006. The latter :appeal against I ! Criminal Appeal No. 156 of 2006 is not before the Court. There is no gainsaying that a notice of appeal is a ba!sic document in a criminal appeal to this Court as it is the one which institut~s the appeal in ! terms of section 61 (1) of the Rules. And in terms of Rule 61 (7) of the rules, a notice of appeal shall be substantially in the Forml "B" in the First Schedule to the rules. The mandatory details to be provided in a notice of appeal in Form "B" are details on the impugned decisiT including the name of the originating High Court centre, the name of the High Court I I ·~ I Judge, the date of the decision arid the ·number of the High Court case complained of. As it was correctly submitted by Mr.! Elisaria, in the 4 absence of a valid notice of appeal, it goes without saying that in law, there is no appeal in this Court. The appellant's notice of appeal lodged in this Court on 5th i December, 2008 is defective for not citing the number of the High Court decision being challenged. Therefore, in the absence of a valid notice of i appeal there is no competent appeal instituted in this Court. The inevitable conclusion is to strike out the purported appeal as we hereby do. (: ~ In the event the appellant is still interested to appeal against the i decision of Sambo, J. in Criminal AppeatNo. 154 of 2006, he is free to do "~. so, subject to the law of limitation. DATED at ARUSHA this 18th day of November, 201L E. M. K. RUTAKANGWA

JUSTICE OF APPEAL B. rt-1. LUANDA

JUSTICE OF APPEAL K.K. ORIYO

JUSTICE OF APPEAL 5 I certify that this is a true copy of the priginal. f:·., I I Z.A. Maruma •·1 I

PUTY REGISTRAR a (\ ' 6