CHACHA 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE COURT-MARTIAL APPEAL COURT AT DAR ES SALAAM COURT-MARTIAL APPEAL NO. 18324 OF 2024 MT 99164 CHACHA ADAM WAING'ARI........................................ APPELLANT VERSUS THE JUDGE ADVOCATE GENERAL.............................................. RESPONDENT RULING 28th Aug & 05th Nov, 2024 NGUNYALE, J; This is the ruling against the preliminary point of objection filed by the respondent that; "The appeal in bad law for being filed out of time. The impugned judgment was certified on 23h June, 2023, the appellant lodged the appeal on 04th July, 2024 after lapse of 344 days from the day of judgment instead of being lodged within 45 days as required by section 361 (1) (b) of the Criminal Procedure Act [CAP 20. R.E 2022]" Before the General Court Martial (the GCM) held at Land Force Command Headquarters Nyerere Officers Mess, Kibaha Pwani, the appellant was charged with the offence of manslaughter to one MT 121656 M Private Daudi Ally Mbwana contrary to section 195 (1) & (2) of the Penal Code Cap 16 [R.E 2019] read together with Section C. 65 of the Code of Service Discipline, First schedule to National Defence Act, Cap 192 [R. E 2019] (hereinafter named 'THE ACT’). Upon full trial on 23'd June 2023, the appellant was found guilty and sentenced to dismissal from the Defence Forces from the date of the judgment. Being not amused by the findings of the GCM, he preferred this appeal. At the hearing of the objection, which was heard by way of a written submission, the appellant's submissions were drawn and filed by Lt. (Rtd) Godwill Fredrick Benda, while the respondent filed his submissions in person. Briefly, the submissions were as follows: Submitting in support of the objection, the respondent submitted that this appeal has been filed out of time since the impugned judgement was certified on 23’d June 2023 and this has been filed on 4th July 2024 which is after lapse of 344 days from the date of judgement instead of 45 days as required by the law. He referred to section C.144 (3) of the Act, which provides for the procedure for appealing from the Court Martial to the Court Martial Appeal Court, whereby the section provides for the seven =W' days rule and twenty-one days rule regarding the notice of intention to appeal and a statement of appeal respectively. He was of the view that the law is not precisely on when to start to count the period of filing the notice (the 7-day rule) and when to start to count the filing of the statement of the appeal (21-days rule) he borrowed leaf from Section 361 (1) (a) & (b) of the Criminal Procedure Code [Cap 20 R.E 2019] (the CPA) which indicates as to when to start computing the time to file notice of appeal and the appeal itself. He concludes that basing on the provision of Section 361 of the CPA the time limitation to nIe this appeal is 45 days and that the appellant has been late for 344 days. It is his prayer that the court should not entertain the appeal as it is time barred and that issues of time limitation goes to jurisdiction of the court as it was stated in the case of Juma Lupoli Charles Ngobetse (Civil Appeal No. 487 of 2022) [2023] TZCA 17323 (8 June, 2023). In his rebuttal submissions, Mr Benda, advocate, started by saying that the appeal before this court is not filed out of time and that the appellant met the requirement under -Section 144 (3)(a) and (3)(b)(i) of the Act and filed within the prescribed time. He added that appeals from the decision of the Judge Advocate General (JAG) to the Court Martial Appeal is a procedure where after the notice of intention to appeal has been sent to the GCM, the JAG has to prepare the minutes of the proceedings including the finding, conviction and sentence imposed then deliver the same to the serviceman so as to prepare the statement of appeal within 21 days after receiving the minutes of proceedings and take the statement to the JAG within such period for him to forward the same to the Registrar of the High Court who is the ex-officio Registrar of the Court Martial Appeal Court. He pointed out that the impugned decision was delivered on 23'd June 2023 then notice of intention to appeal was sent to the JAG on 30th June 2023 and it was on 07th June 2024 when the Minutes of proceedings were ready as per the certificate of correctness signed by the JAG; the minutes were delivered to the appellant on 20th June 2024 and on 01“ July 2024 the appellant delivered his statement of appeal to the JAG. He added that there is no any lacuna in the Act and that the phrases 'within. . .days’ under 144 (3)(a) and (3)(b)(i) its meaning can be accessed from the Interpretation of Laws Act, Cap 1 [R.E 2019]. He insisted that the appeal was filed within the time limit and the delay to file the statement of appeal was due to the delay of the JAG to deliver the copy of the minutes of wM proceeding as soon as practicable as provided for under section C.122(3) CDD. It was his prayer that the objection be overruled. Rejoining the submissions, the respondent reiterated his submissions in chief by insisting that there is a lacuna in the Act, especially in computing the time limitation, so the court should invoke the provisions of section 361(1) (a) and (b) of the CPA. Parties having concluded their submissions which we appreciate, the court is invited to determine the merits of the objection raised by assessing as to whether the appeal was filed out of time. It is a trite law that time limitation goes to the court's jurisdiction. Therefore, the court should ensure that it is clothed with jurisdiction to entertain a matter before it. The Court of Appeal in Moto Matiko Mabanga v. Ophir Energy Plc & Others, Civil Appeal No. 199 of 2021 reiterated with approval its decision in the case of Swilla Secondary School v. Japhet Petro, Civil Appeal No. 362 of 2019 where it was stated that: 'The law is settled that the issue of jurisdiction for any court is basic as it goes to the very root of the authority of the court or tribunal to adjudicate upon cases or disputes. Courts or tribunals are enjoined not to entertain any matter which is time barred and in any event they did so, the Court unsparingly declare the proceedings and the consequential orders a nullity." [Emphasis added]. As rightly submitted by both parties that appeal from the Court Martial to the Court Martial Appeal is provided for under Section C. 144 (3)(a) and (3)(b)(i) together with section C. 122 of the Act. The point of dispute is on the computation of the time provided for under section C. 144 (3)(a) and (3)(b) (i). For easy reference and clarity, the section is hereunder reproduced : "(3) No appeal under this Part shall be entertained unless– (a) a notice of intention to appeal is delivered to a superior officer or to any person by whom the appellant is held in custody within seven days of the receipt by him of the form of Statement of Appeal; and (b) where the notice of intention has been given, the Statement of Appeal is delivered to a superior officer or to any person by whom the appellant is held in custody- (i) within twenty-one days after delivery to the appellant pursuant to section C. 122 of this Code of a copy of the minutes of the proceedings; or" Reading between the lines under the quoted provision, it is clear that an appeal to the Court Martial appeal is a process which requires two stages that is issuing a notice of intention to appeal, which should be done within seven days from the date of pronouncing the judgment of the Court Martial and the second stage is delivering the statement of appeal to the JAG within twenty-one days after the copy of minutes of proceedings has been delivered to the appellant. The provisions of section C. 122(3) of the Act requires the copy of minutes of proceedings to be delivered to the appellant as soon as practicable; the intention of the legislature on delivering the copy of minutes of proceedings is to enable the appellant to prepare the statement of appeal, to say little the statement of appeal cannot be prepared in the absence of the minutes of proceedings. Being in that position, the impugned judgement was delivered on 23'd June 2023, a notice of intention to appeal was issued on 30th June 2023, minutes of proceedings were served to the appellant on 20th June 2024, and the statement of appeal was delivered to JAG on 02-d July 2024. From the above period, there is no doubt that the notice was filed within the time limit of seven days, and also, the filing of the statement of appeal was done within twenty-one days of delivery of the minutes of proceedings. With that regard, we are in a firm stand that there is no any lacuna in the Act in particular on computing the time limitation to file an ,M appeal on part of the appellant. Otherwise, we could say the lacuna is on the part of the JAG or any other person responsible for issuing the minutes of proceedings as the time frame for the delivering of the copy of minutes of proceedings where it is stated under Section C. 122 that the minutes of proceedings to be delivered to the appellant as soon as practicable. To that end, we deliberate that the raised objection has no merit; it is hereby dismissed. Order accordingly. Dated at Dar es Salaam this 2024. JUDGE 05.11.2024 ;i O. J. Bweg/oge Judge 05.11.2024 a }; A A @kiano Judge 05.11.2024 8