20110627 TZCA Mbeya

IN THE COURT OF APPEAL OF TANZANIA At MBEYA (CORAM: RUTAKANGWA, J.A.,MBAROUK, J.A. And MASSATI, J.A.) CRIMINAL APPEAL NO. 120 OF 2010 ATHUMANI SALIM .................................................. APPELLANT VERSUS 111••·························· RESPONDENT THE REPUBLIC ....................... (Appeal from the judgment/ decision of the Resident Magistrates' · Court of Sumbawanga at Sumbawanga) \7"\2_\}..-l ~T) (Dyansobera,PRM EJ.) •~,.:s:::- l'----'o . -S'--'\"2-\.-s;;;:v -~ Dated the 19th day of May, 2009 ~\° - ~ "'"71~--= In - u~ -r-:::...~J ~ ~ . Criminal Appeal No. 6/2009 s:-· 3G,, (::i.J CA?/2 JUDGMENT OF THE COURT Date 24 & 29 June, 2011 MASSATI, J.A.: The appellant was charged in the District Court of Mpanda, with three counts of rape, causing grievous harm, and stealing, alleged to have been committed in December, 2000. On August 8, 2001 he was convicted as charged and sentenced to 30 years for rape, and 1 year imprisonment for each of the remaining counts. After some preliminaries, his appeal in the High Court was heard by Dyansobera, PRM (Extended Jurisdiction) who dismissed it on June 19, 2009. He has now come before this Court for a second appeal. . 1 At the hearing of the purported appeal, the appellant appeared in person, and the respondent /Republic was represented by Mr. Vicent Tangoh, learned Senior State Attorney. The appellant adopted the grounds contained in his 10 - point memorandum ofappeal. When Mr. Tangoh rose to argue the appeal, we asked him whether Dyansobera PRM (EJ) had jurisdiction to hear an application for extension of time which preceded the appeal itself. The learned Senior State Attorney, opined that, first the Principal Resident Magistrate had no jurisdiction at all to hear an application for extension of time under the Criminal Procedure Act (Cap 20 RE 2002) and could only hear an appeal if the· appeal was properly transferred to him under section 45 of the Magistrates' Courts Act (Cap 11 RE 2002). He informed us that after perusing the original file he was satisfied that there was no order. of transfer of the appeal; which was originally filed in the High Court as Criminal Appeal No 57 of 2008, to the Court of the Resident Magistrate, Sumbawanga. In the circumstances, he ·prayed that we revise and quash all the proceedings in the Resident Magistrate's Court, ruling and judgment on appeal under section 4(2) of the Appellate Jurisdiction Act, (Cap 141 - RE 2002). 2 We have taken the trouble to trav~II through the relevant original records. ApJ:)arently, the appellant realize~ that he was late in filing his I I notice of intention to appeal against the District court judgment. .So, on 27'h October, 2008 he filed, in the High Cou~, a chamber application under I section 361(2) of the Criminal Procedure AcdI for extension of time in which I to lodge the notice. This was assigne~ as Miscellaneous Criminal Application No. 19 of 2008. It is strange thbt although the official receipt \ 1 stamp of the High Court in respect of the ch amber summons was marked 19th August, 2008, it was signed by the Distri1 Registrar, two month~ later, I on 2ih October, 2008. Be that as-it may, the application was "transferred" to Dyansobera PRM (JE) on 5th September, 2op8 by the Judge, purportedly under section 45(2) of the Magistrates' Courts ~ct. . . I I It was on the strength of this "transfer" \order that Dyansobera PRM (EJ) proceeded to hear the said application whose ruling he delivered on . - I th I 13 November, 2008 granting the prayers. Pursuant to this leave, the . . I appellant filed his notice of intention to appeal in the High Court on 15th I th I . • November, 2008. Then, on 11 March 2009, the learned Judge at I Sumbawanga, "assigned" the appeal to Dyansolbera PRM (EJ). It was on . i II 3 I the strength of this "assignment" that Dyansobera PRM (EJ) proceeded to hear the appeal whose judgment, dated 19th June, 2009, is the subject of the present appeal. It can never be gainsaid, that once an accused person convicted by a subordinate .co._urt finds himself time barred in lodging his· notice of intention to appeal, his remedy lies in applying for extension of time under section 361(2) of the Criminal Procedure Act. That was complied with by the. appellant in the present case. He filed his application in the High Court. The learned resident judge in Sumbawanga purported to assign the hearing of that application to the Resident Magistrates' Court under section 45(2) of the Magistrates' Courts Act. ·Section 45(2) of the Magistrates' Courts Act; provides:- "42(2) The High Court may direct that an appeal instituted in the High Court be transferred to and be heard by a resident magistrate upon whom extended jurisdiction has been conferred by section 45(1)" (emphasis supplied). 4 There is no dispute here that Dyansobera PRM, had extended jurisdiction conferred upon him under section 45(1) of the Magistrates' Courts Act. But what was filed in the High Court that came up for assignment before the learned Judge was not an appeal, but an application under section 361(2) of the Criminal Procedure Act. As held by this Court, a Principal Resident Magistrate with Extended Jurisdiction has no jurisdiction to hear and determine an application for enlargement of time to lodge an appeal filed in the High Court under section 361(2) in terms of section 45 of the Magistrates' Courts Act. (See BENECA MATHAYO AND OTHERS v. R. Criminal Appeal No. 251 of 2006 and SELEMANI GABRIEL v. R. Criminal Appeal No. 201 of 2007 (both unreported). It follows therefore that the learned Principal Resident Magistrate (Extended Jurisdiction) who granted extension of time in this case had no jurisdiction to do so. Therefore all the proceedings and ruling relating to that application must be vitiated. In exercise of our powers of revision under section 4(2) of the Appellate Jurisdiction Act, we quash the same . . After the purported enlargement of time for lodging the appeal and upon the appeal being filed, on 15th November 2008, again the learned resident judge in Sumbawanga "assigned" the appeal to be heard by the 5 same Principal Resident Magistrate on 11th March, 2009. There was no transfer order under section 45(2) of the Magistrates' Courts Act. If he assumed tha_t the PRM could still act under the "order of transfer" granted to _him to hear the application for extension of time to file an appeal, he was again wrong. To transfer an appeal, a separate order was required. The force of the first order of transfer in respect of the application (assuming it was valid) expired at the conclusion of that application. But, ,· as we have demonstrated above, even the first order of transfer was of no effect. The situation on the ground now, therefore, is that the appellant's application for extension of time to appeal in the High Court is yet to be heard by that court. Since the appeal was heard on the assumption that it was field in time and the PRM (EJ) had jurisdiction to do so, in view of our ', findings above, the proceedings and judgment of the PRM (EJ) in respect of the appeal were also invalid. They are accordingly also quashed. And since the present appeal emanates from ·incompetent proceedings and judgment, it too, is incompetent. It is also struck out. It is ordered that the application for extension of time filed in the High Court be remanded 6 to that court for it to first determine the application before proceeding to rehear the appeal should it deem fit to enlarge time. It is so ordered. DATED at MBEYA this 2ih day of June, 2011. E.M.K. RUTAKANGWA JUSTICE OF APPEAL M.S. MBAROUK JUSTICE OF APPEAL S.A. MASSATI JUSTICE OF APPEAL I certify that this is a true copy of the original. ~KYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 7