19810831 TZHC Dar es Salaam

- ...___.1,- .L -, IN ~HE HIGH COURT QF TANZANIA ; AT D.(IR ES SALAAM rJ!SCELLANEOUS CRIMINAL CAUSE NO. 60 OF 1980 In the matter of an application for Leave to Appeal out of time and In the matter of Criminal, 1..9P:9~l No. 4 of 1980 in the District CoU!'.t -- of ui~- ( .. ' Dist;ict . at Ma.henge. AHGELUS. JOHN HAYUKA ••••••••••••• ~ ~ ~·~ ••••••• • •••••• ~ • • • • • • APPELLANT versus THE Rl!i"""'PUBLIC ,oo••••••••••o•••••••••••·••••••••••••oo•o•••• RESPONDENT RULING 1\rnZAVAS 1 J .K. _). · :· on the 14th of July, 1980 the applicant was convicted of Malicious damage to property c/s 326(1) of: the Penal Code and.sentenced to a fine of shs._. 2,000/= or 1.2 months imprisonment in default. - He paid the fine. Iifow, over one_ year ·from the day of judgement, the accused is seeking for leay:e to lodge his memornndum of appeal _against _:the· decision of the low_er court out of time. Lea:rned counsel for the applicant who apparently also advocated for him in- the lower court argued that he was not in court on the day judge- ·:: ment was delivered as he had started his leave. He therefore,.• accbrdin~ to his submission,· was unable to give notice of in~~ntion _ to app~a).. As to the que"t!Jtion of failu1~e · to -file memorandum of appeal, in time the l_ean1ed ( counsel-argued that the office of the Chief Corporation Counsel received cdpy cif-·judgement on 25.9.80 but that because they were not in possession of copy of proceedings they failed to file .memorandum of appeai-_ i1l time. The learned state attorney apposed the application on the ground that under section 314 of the Criminal Procedure Code both notice of intention to appeal and filing of memorandum of appeal must be lodged in time. In support of this argument the Court was referred to the decision of this: Court in JfJfil fl.UU-iJI and COMPANY v R ( 1970) H. C. D. 338. It was the learned counsel's submission that in the present application the two provisions of the law WBPe not complied with. It was also argued by the learned state attorney that the learned counsel for the applicant only needed copy of the judgement to enable_h:j.n}. . ' to file his memorandum. of appeal and not copy of proceedings. In support of this argument the decision by Mwakasendo, Ag. J., (as he then was) in AHMED.MWINYIMANI v R (1972) H.C.D. 171 was quotted. . ••.• /2. ---·-~·· 2 With respect I agree with the learned state attorney that to file a memorandum of appeal to the High Court in a criminal case from a decision 'of a District Court all that the accusd need to have in his possession is copy of judgement of the District Court. That this is the law is a.oply brought out by the wording of section 314 of the Criminal Procedure Code which says in~er alia: 11 No appeal from any such finding, sentence or order as aforesaid shall be entertained unless the appellant - (a)---- (b) shall have lodged his petition of appeal within fourty-five days fron the date of the finding, sentence or order: Provided that in computing the said period of fourty-five days the time requisite for obtaining a copy of the judgement or order appealed against shall be excluded: And provided further that the High Court may, for good cause, admit an appeal notWithstanding that the periods of limitation prescribed in this section have elapsed". In the present case the judgement was delivered on 14.7.80. The record shows that the trial magistrate explained to the accused his rights of appeal. The accused did not apparently ·~j,ife''nbtibtf:? d:f"' lli't:eri:tJioh:d;, ,_ ·_ d c.: 1 to appeal against the judgement. It could be argued, as it was indeed argued by the learned counsel for the applicant, that the fwilure to give notice of intention to appeal was occasioned by the reason that accused's counsel was not in court on the day the judgement was delivered. In fairness to the applicant that may have been the reason talcing into account that :raa.ny a people are ignorant of the procedures of the court. But there was no dispute in this application that the office of the Chief Corporation Counsel received copy of the judgement on 25.9.80. That was the day -t time started to run againSt the applicant. The learned counsel would have been expected to lodge in court his memorandum of appeal by the 10th of November, 1980 at the latest. This he did not do. The reason is that the counsel who would have lodged memorandum of appeal was on leave. That is clearly not a good cause to account for the dilatoriness in lodging a memora- ndum of appeal in time11 e;iven, as it must be given, that Mr. Kashumbugu is not the only counsel in the whole of the State Legal Corporation establishment that could have dealt with this case, And what is more there i8 no .application before this court asking for leave to give notice of intentton to appeal out of time. In the case of JliJ/JJJ.J ?iflUfJI ':'t e.bove-quotted, this Court held that '1the oob.plI.il.nfl.s ir:CqUftiil! By e.ecfti.Qli ,314 of the CrimitJal Procedure Code is total. A partial compliance as by glv~ the notice of nppeal in time but lod~ing the petition out of time or v~ce versa is not enoygh. A pd.rtial compliance creates at most, an imperfect appeal which by section 314 cannot be entertained 11 • • •..•. /3. ·• --!- __ --.....- - - --., ·~ --~-~- --,.--.-~J,,,,---f""'.lt! I .4· . . . 3 That being the position even if for the sake of argument, this court was to hold that there was good cause to account for the applicant's .. ··. \. delay •in filing his memorandum of appeal in time, the Court cannot gran·G the application as there is no application before this court seeking for leave to give notice of intention to appeal out of time. I agree ith the learned state attorney that this application for leave t.o appeal out of time is incompetent and I accordingly order that it be rejected. ,. DAR ES SALAAM. --~ -· N. S • lVJNZA AS , 31.8.81. JAJI iro'~iioo r. \ l •