CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MOROGORO ( CORAM: MKUYE. J.A. KAIRO. J.A. And MLACHA. J.A.l CRIMINAL APPEAL NO. 648 OF 2021 ABUBAKARY EDWARD @ TATIYA................................................. APPELLANT VERSUS THE REPUBLIC........................................................................... RESPONDENT Appeal from the decision of the High Court of Tanzania, at Dar es Salaam (Chaba. J.) dated the 23rd day of November, 2021 in Criminal Appeal No. 65 of 2021 JUDGMENT OF THE COURT 27th May & 6th June, 2024 MKUYE, J.A. The appellant, Abubakary Edward @ Tatiya, was charged and convicted on his own plea of guilty by the District Court of Mvomero for Mvomero District of the offence of trafficking in narcotic drugs contrary to section 15A (1) and (2) (c) of the Drugs Control and Enforcement Act, Cap 95 R.E. 2019. He was accused of trafficking narcotic drug - cannabis sativa commonly known as "bhang" on 20/12/2017. According to the record of appeal, when the charge was read out on his first day of arraignment to the court, he pleaded guilty to it. i Then, the facts constituting the offence were adduced by the prosecution. It was alleged that on the material day, the appellant was arrested by two police officers while ferrying the alleged narcotic drug weighing 14.25 kgs on a motorcycle with Registration No. MC 703 BLF, make Houjoe. Upon these facts being read over to him, he admitted to all the facts as being true. The trial court then proceeded to convict the appellant. He was subsequently, sentenced to thirty (30) years imprisonment and a forfeiture order was issued in respect of the motorcycle. Aggrieved, the appellant appealed to the High Court, but his appeal was dismissed for want of merit. Still protesting his innocence, he has now appealed to this Court. It is noteworthy that, although in the notice of appeal lodged on 29/11/2021 the appellant indicated that he intended to appeal against conviction and sentence, he has not filed his memorandum of appeal to the date of hearing of this appeal. At the hearing of the appeal, the appellant appeared in person without any representation, whereas the respondent Republic had the services of Ms. Tarsila Gervas Asenga, learned Senior State Attorney teaming up with Mses. Mary Lundu and Rosemary Alexander Mgenyi, learned Senior State Attorney and State Attorney, respectively. Before the hearing could commence in earnest, Ms. Asenga drew to the attention of the Court that the notice of intention to appeal from the District Court to the High Court is defective since it relates to the offences of disturbing religious assembly contrary to section 126 and 32 and disobedience of lawful orders contrary to section 124, both of the Penal Code Cap 16 R. E. 2019 instead of the offence of unlawful possession of narcotic drugs contrary to section 15A (1) and (2) (c) of the Drugs Control and Enforcement Act, Cap 95 R.E. 2019 to which the appellant stood charged and convicted. She contended that, the notice of intention to appeal filed in the High Court was contrary to section 361 (1) (a) of the Criminal Procedure Act, Cap 20 R.E. 2022 (the CPA) since it shows a different conviction and sentence from those awarded to the appellant. In support to her argument, the learned Senior State Attorney referred us to the case of Bahati Mhenga v. Republic, Criminal Appeal No. 340 of 2021 [2024] T7CA 200 (20 March 2024) TANZLII, where the Court when confronted with a similar scenario, quoted the case of Joseph Lugala v. Republic, Criminal Appeal No 512 of 2020 [2023] TZCA 130 (21 March 2023) and stated as follows: 3 "The failure o f the appellant to lodge the notice o f appeal rendered the appeal before the first appellate court incom petent because o f the om ission offended the provisions o f section 361 (1) o f the CPA/' As to the effect of such a situation, she argued that the High Court proceedings and judgment which were based on a defective notice of appeal were a nullity and also the appeal before this Court which emanated from a nullity is also incompetent before the Court. At the end, the learned Senior State Attorney implored the Court to strike out the appeal. In rejoinder, the appellant contended that the notice of appeal appearing at page 10 of the record of appeal is an indication that he had two cases. The issue for this Court's determination is whether the notice of intention to appeal that was lodged before the High Court was valid. According to the record of the appeal, after the appellant was aggrieved by the verdict meted out by the District Court on his plea of guilty, he lodged a notice of intention to appeal as shown at page 10 of the record of appeal. The said notice hinged on the offences of disturbing religious assembly and disobeying lawful orders. Definitely as was argued by Ms. Asenga, the notice of intention to appeal was incompatible with the matter at hand. For ease of reference, we take the liberty to leave the notice of appeal appearing at page 10 of the record to speak for itself: "N O TICE O F A PPEA L TAKE N O TIC E that, I ABUBAKAR EDWARD TATIYA intend to appeal to the High Court o f Tanzania at Dar es Salaam, D istrict Registry against the decision o f Honourable Kessy given on I4 h January, 2021 whereby I w as co n v icte d of th e o ffen ce 1st count: D istu rb in g R e lig io u s A sse m b ly co n tra ry to se ctio n 1 2 6 a n d 3 5 o f th e P e n a l Code; 2nd cou n t: D iso b ed ie n ce o f la w fu l o rd e rs co n tra ry se ctio n 1 2 4 o f th e P e n a l Code, [C ap 1 6 R.E. 2 0 1 9 ] a n d w as se n te n ce d to se rve a one (1 ) y e a r im p riso n m e n t on each count, the same to run concurrently. The appeal is against conviction. The appellant intends to appear a t the hearing o f the appeal. Dated here a t Wami Kuu Prison this 10th day o f February, 2021. Appellant's signature ..." [Emphasis added] 5 From the above excerpt it is crystal clear that the appellant was intending to appeal against the conviction and sentences in respect of the two offences which are disturbing religious assembly and disobeying lawful orders and not otherwise. According to the said notice of appeal, he was convicted and sentenced on 14/1/2021 by Hon. Kessy RM. In each count he was sentenced to one year imprisonment which were ordered to run concurrently. That notice was lodged on 10/2/2021. In the matter at hand, the appellant was convicted and sentenced by Hon. Waziri SRM on 3/2/2021. As it is, it is crystal clear that it does not relate to the offence in the instant case which is based on trafficking in narcotic drugs contrary to section 15A (1) and (2) (c) of the Drugs Control and Enforcement Act, [Cap 95 R.E. 2019] in which he was convicted and sentenced to 30 years imprisonment. This implies that, there was no notice of appeal filed in the High Court, in relation to the case at hand. As was rightly submitted by Ms. Asenga, the omission contravened the provisions of section 361 (1) (a) of the CPA which states as hereunder: "361 (1) Subject to subsection (2), no appeal from any finding ; sentence or order referred to in 6 section 359 sh all be entertained unless the appellant - (a) h a s g iv e n n o tice o f h is in te n tio n to a p p e a l w ith in ten d ays from th e d ate o f th e Finding, sen ten ce o r o rd e r or, in the case o f a sentence o f corporal punishm ent only, within three days o f the date o f such sentence, and (b) has lodged his petition o f appeal within forty- five days from the date o f the finding, sentence or order, save that in com puting the period o f forty-five days the tim e required for obtaining a copy o f the proceedings, judgm ent o r order appealed against sh all be excluded." [Emphasis added] In the case of Binaisa Phares Sumwa Rasta and 2 Others v. Republic,Criminal Appeal No. 61 of 2015 [2017] TZCA 150 (25 August 2017) TANZLII, the Court amplified the gist of section 361 (1) of the CPA as follows: "The provisions o f section 361 (1) o f the Crim inal Procedure A ct are definite and unm istakable. They require an intending appellant, aggrieved by a subordinate court's decision, to not only lo d g e h is n o tice o f in te n tio n to a p p e a l w ith in ten d ays from th e d ate o f th e im p u g n ed d e cisio n , but also file an intended appeal within forty-five days from the date o f the decision. In addition, the proviso to the said provisions excludes from com putation o f the forty-five days lim itation period required for obtaining from the subordinate court a copy o f the decision sought to be challenged. See also: R e n a tu s M uhanje v. R e p u b lic, Crim inal Appeal No 417 o f 2016 [2019] TZCA 103 (10 May 2019) TANZLII. [Emphasis added] What is gathered from the above quoted exerpts is that upon being dissatisfied with the finding of the District Court in respect of the instant matter, the appellant ought to have lodged a notice of appeal within ten days from the date of such finding, sentence or order. That, he did not do. As the only notice of appeal in the record of appeal is the one related to the offences of disturbing religious assembly and disobeying lawful orders it is as if no notice of intention to appeal was lodged in respect of the matter at hand. Unfortunately, although the purported appeal was predicated on the defective notice of appeal, the learned first appellate Judge in advertence did not see that the said notice to which the appeal before him was premised, did not at all relate to the matter at hand. Despite 8 this anomaly the learned High Court Judge proceeded with hearing and determined the appeal on merit while it was incompetent. In this regard, we are in agreement with Ms. Asenga that the first appellate court proceeded with an appeal whose notice of appealwas defective for non-compliance with provisions of section 361 (1) (a) of the CPA. This anomaly rendered the appeal incompetent. As to the consequences of such infraction, the Court canvassed it in the case of George Daudi v. Republic, Criminal Appeal No. 428 of 2018 [2019] TZCA 502 (12 December 2019) and stated as follows: "In the present case, we are firm that the absence o f the notice o f appeal in the High Court vitiated the appeal before that court and we declare that it was incom petent Therefore, the proceedings, judgm ent, conviction and sentence before that court were nullity ." Even in the matter at hand, since the appeal before the High Court was incompetent, we are settled in our mind that it rendered the appeal proceedings and the resultant judgment a nullity. For that matter, as the appeal before us emanates from a nullity, this Court cannot entertain it and we proceed to strike it out. Consequently, we invoke our revisional powers bestowed on us under section 4 (2) of the Appellate Jurisdiction Act, [Cap 141 R.E. 2019] and nullify the proceedings and judgment of the first appellate court in Criminal Appeal No. 65 of 2021, quash the upholding of conviction and sentence. The appellant is advised, if he so wishes, process his appeal from the District Court of Mvomero for Mvomero to the High Court in accordance with the law. It is so ordered. DATED at MOROGORO this 6thday of June, 2024. R. K. MKUYE JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 6th day of June, 2024 in the presence of the Appellant in person and Mr. Shabani Kabelwa, learned State Attorney for the Respondent/Republic is hereby certified as a true copy * * R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 10