NA TZCA Simon 6

.. ; FILE COPY- HC. CRIMINAL APPEAL NO.19 OF "20()9 ' 1 / . , . . {Original Cr. Case No.905 of 2008 of the bistict b~ud f I i of Nyamagana District at Nyainagana Betdie: M. SHAibi, ·'ii i Senior District Magistrate} 1 ·,: / : :', 1. JOSEPHAT s/o WILSON } ·_ - 2. DEVARAJAN s/o VAMADEVAN ...... APPELLANTS Versus THE REPUBLIC ................................. RESPONDENT JUDGMENT MACKANJA, J: The appellants were convicted of assault causing actual ' ' bodily harm c/s 241 of the Penal Code. They V¥ere acCl:J.s~.d pf assaulting one Elias Simon th.ereby causing !·him! bbdily 'hbt-Hi :at • ' "1 about 7.30 a.m. on 30th June, 2008, at .Ilemela area in Ilemela District. Upon being convicted each one of them was sentenced in absentia to the maximum punishment provided by law, that is to say, five years imprisonment. The appellants were sentenced in absentia because they jumped bail shortly before the· judgment against them was pronounced. Even though_ they are at large _they _ instituted this appeal · against conviction and ._. sentence. When admitting the ·ap¢~?1 Hon. Nyarngarika, J.,. noted'.. . .,. •. ? . _thus:- :: i . .,';I : ;,': .. Admit the appeal to determine whether in the absence of proof of the arrest the convicts, who were . I I ' : · . _'. · ,convicted and sentenced in absentia, their appeal can ~ · be entertained and whether the Advocate who filed · t · , ; . _, . . . . :. . I . : . :. . . ·. :: , their appeal has been duly instruct~d. fo purs_ue: ~~~II .I I / i:_:,·~ : :; ; ,'_ i;'/)i/ ! . ' . ! I1 '~ 1/11 · • .-· :- 1 _ .• : ·appeal in the circumstances". : '._ Apart . from the admission · note, . the Director of Public ~-· : .;Prosecutions (DPP) has raised five preliminary objections a-gainst · _· -· _, the sustainability of the appeal to the following effect, namely:~ "1. that the instant appeal is premature hence incompetent in law; 2. that the instant appeal intends to defeat .the purpose of the administration . of: crirr,inal . justice - I • and the rule of law hence set ·b;ad I · precedent: I , . • ih: •, .. / !; I ~ . ,' '·; .·I, I '1 0 I I I , , . ·1 I' law· r ~ I . · _: : :; ' . 3. that the appellants' counsel has no instructions/locus stand to represent the appellants; 4. that the instant appeal is bad in law for non compliance with the provisions of _the laws; and 5. .that the instant appeal is time barred in law". (Quoted verbatim). Mr. Mutalemwa, learned· advocate, appeared for the appellants while three State Attorneys: .· f. f I I , ·' eniiedyJ:~fTI~nd, . · Mr. Matuma Athman and Emmanuel Gachbcha appeared' for the OPP.· Mr .. 'Kennedy Edmund, learned State Attorney, argued . the 2 'I • ·' 'f ' i ,-,:tt j . -,--- ' . · prefiminary objections. Learned State Attorney opened his ~~-:>, - -.. submissions with a reference .to the char,ges of -wh,icra 1• the :; ( appellants were convicted and that having' i~e~ ilQ~rieV~J!!~liey '· . . i ~ i ' . ' ' . : ' .' 1 tooged· a:n appeal that· is founded_ on the' grdunds whkh are contained in the petition of appeal. He argued the preliminary -objections seriatim. ~ . . _As regards the first preliminary objection it is Mr. Kennedy _Edmund's contention that the appeal is pre-mature because _looking at page eight of the lower· court's judgment the court directed that the sentence would commence upon the arrest of • T the appellan_ts. The appellants jumped bail ~efore. t_h~ jud~ment • f I I ' • ••,I' was :delivered, hence the order for their ~1~estl, Jhat ?~~1~ the convicts have not se~ed their senten~e, the appeal -:against _a sentence which they have not served is· pre-mature. In his view a convict can only appeal if he is serving the sentence, nof while he is fleeing justice. He cited section 363 of the Criminal Procedure Act. Learned State Attorney did not state ariy provision of law which bars a fugitive_ criminal -from appealing. - Mr. Kennedy Edmund stated the obvious in his submissions relating the second preliminary objection th_at Parliament ~nacfs .' laws and the courts interpret them and thq~ no one: is c1l;>pv1e the . .. - , ~ ... .. '.- .- .. . : I .f' II . . ;' • I • ,, : :i ~I:, I h,j .I ; 1 law ..·-That according to the law the appellants toufd have ·_'been •• • I "1 ' • • . entftled. to· challenge the conviction and the sentence if they -. . · WE;?re in prison in compliance with the sentence which the trial :3 f court imposed on them. That as of now the appeU:ants have not · . : : :· i : ; .. . ,. · served any part of the sentence which •sh~II/ ,co~m~nce i µp:<;>n. • tijeir arrest. Therefore hearing ttie appeal'. Will lcr~bte. 1 . . I ,I; i ·: .L '1 : . ' . J/ ~bd · J ·: : :,1 ' 1 ! · precedent in. the administration of criminal justice 1n this country because ·it will motivate people to flee justice to appeal f(om their hideouts.·· Learned State Attorney opened his submissions on the- third preliminary objection by citing the provisions of section 359 (1) of Criminal Procedure Code. That according to those provisions only a convict serving his sentence may appeal. against a conviction and sentence in terms o{ Section -359(1) o,f \ • I CPA. He cited the decision in Zakayo Kusajai,& ~icht,1.rd ~~;Usi • I I !• • • . I .j, : . • . .• . v. Petro Tapa & Mtiyani Gambi [1993] TLR 74 as authority for his arguments. Therefore, he said, since the appellants jumped bail and .are at large and learned counsel for the appellants having stated that he did not have communication with them, he lacks .locus standi. However, Mr. Kennedy Edmund concedes that according to procedure anyone may be represented by counsel' when. ' . appealing. Nevertheless, he alleged that as an) offi~er of:. the . 1· I · .. ' · ! , court learned counsel for the appellants discr~etlf c,on,ml:)qic!~:t~d • T : ··.. i- .. ~ .... >! -~r ! 1 ! 1 ... · : 1 1 1 with the appellants and ignored the order of the ~onvictind c:6u~ · which issued a warrant of arrest against the appellants; That it is disgraceful of Mr. Mutalemwa, a senior advocate, to represent 4 ~ . ~...J:::;z.,,;-cr . · .r.·t J -"l, '\ ,J convicts who are at large. Learned State Attorney/ stated that if it i/-1· be . established that Mr. MUtalemwa. com~µniplt~s· wit~;/:Ih/s:. rt ', • . /.. I ' ! ·:' : i'/ i/q clients he will have committed contempt of co~rt ~nd: that: he: has . . . . also aided the convicts to flee justice. It is in that context that the Republic states that he is_ lacking locus standi. ' . Learned State Attorney made a fairly brief argument on the fourth preliminary objection. He stated that section 366(2) of the Criminal Procedure Act states that the appellant shall be entitled to appear at the hearing of his appeal. It is the practice in courts that appellants who dispense with their physical appearance will .indicate so in their memorandum of appeal~ he .said.-·That in the • , ; . ! . · I 'I,' · , present appeal the memorandum of app~al does not; !iqpicate that the appellants do not wish to appear. That their non- appearance shows that they do not wish to ·appeal and that Mr. Mutalemwa does not have instructions to appear for them. Coming to the fifth preliminary objection, it is Mr. Kennedy Edmund's contention that section. 361(1) (b) of the Criminal _ Procedure Act states that no appeal shall be entertained unless the appeal. is lodged within forty-five days of the date of Jhe conviction and sentence. It is ordinary practice that aggrieved ' .I. , . i I ,· ' ,; ,I •·-1 I. ·, I convicts apply for a copy of proceedings/ and of the }ueigrhent. • • .• • -- • l f; ~ : ; ; I • ' ' _Forty-five days within which to appeal accrue on the. :day he receives the copy of judgment. That reading the petition of - appeal, learned counsel for the appellant applied for a· copy of . 5 -~--·_:; ~---::::,-~..,._ -·~-- ·-~» ·- _,,_ .• ~, ., ·l ;~iii 'J .· . ' , . ., i ~ ]' ; proceedings and judgment on 22 nd December, 2008. :they gave ·1 i '.:'I ,, notice ,of their i.ntention to appeal ·on the :'s~rne1 d!aul . . ' 1·:11 I: 1 .. '! 1 GJ~Ai~e~·- ' ' . / i ' ::!iii 11 ! State Attorney · contended that it is norni.ar1: p~actke · f6r::Lah appellant to show the date on which he · receives copies of judgment· and proceeding to facilitate computation of time limitation. That. in the matter at hand the date on which copies of judgment and proceedings were obtained is not indicated. Inste~d, they instituted the appeal which was not received by a court officer by signing at the place earmarked for that purpose. He therefore submitted that the appeal is time barred and it wa~ ' ' I filed out of time. . . . I 1 : • • l' • l • . . .- . . I. .; I: . - /. ., ·:1 ~l',,ii., , I , • ~ _I i ' I , ; ' . • , ,: I r I ,,,' ! i '- : It is by reason of the foregoing submissions ·thaf · the Republic prays that the appeal be dismissed. Mr.. Mutalemwa, learned counsel for· the appellants, commenced his arguments alleging that the preliminary objections are misconceived. He dismissed Mr. Kennedy Edmund's contention that the. appeal is pre-mature because the appellants are yet to serve their sentence. In learned counsel's view· this preliminary objection is misconceived because section 359 (1) of the Criminal Pro.cedure Act allows any person who is aggrieved by ariy C<?nvictibn . or . sentence to appeal. Referring to the form tr~ I I • 1PP~al m,~·s:!/ /t1ke, . Mr. Mutalemwa submitted that the appeal ·1·is in the ·forrrf of a • • ' petition interms of section 362(1) of the Criminal Procedure Act. That a petition of appeal may be instituted by the convict or by his advocate. Therefore learned State Attorney's argument that · 6 d/ .; .. - !'/ .... ,the convict may appeal only if he is in prison i~ fJu1~. ~e: M~F~ _f .J · _the po"i_nt that he had gone ·through Part X of the Criminal Procedure Act and that. he found ·no· provision which: bars a convict who is out of prison- to appea·I against -conviction ~and l 1 sen~nce. · Mr. Mutalemwa, ·1earned counsel,. did not leave untouched the attack· on his professional integrity. He submitted that . ·communication between an advocate and his client is privileged · and confidential. He added that an advocate cannot be· • ' I ' I i • . c~mpell~~ to_ divulge information he. ~ets f(e1m.~~s /<;nep~( ;mhpt this pos1t1on IS supported by the prov1s1ons ortse¢t1on 134 /o~the ·' Evidence Act. In a criminal trial an advocate speaks out for the innocence of the accused. It is therefore strange for_ learned State Attorney to fail to see the duty of an advocate in court, citing The Board of Trustees of Tanganyika National Parks vs. Lions Safari International Limited, Civ. Case No.7 of 1999 (Arusha, unreported) as authority for-his arguments. It is · by reason of the foregoing submissions, that Mr~ Mutalemwa argues that the. preliminary objection . I which I .' relates I·• ' I I I I •;,J :1,j' ·. 1· .. • ·' ! ;:• • I . I ' : 'q1 an advocat¢ and 4 I • 11 to professional communication between him- as . . I I ! · · , : :.: . client is misconceived. That Wlearned State Attorney knew this . . he could not have attacked the integrity of counseL And si~ce he is not, as an advocate, the complainant, Richard Mtati's case • t ' • was cited out of context. · What is more, learned counsel . 7 I : ; I i' ; I :I 1· I I 'I 1•· '•/'I '11:/' i . submitted that, while improperly directing hi~.-~elf, -t~e · l~~/r~.~d · ! •I, I ; ; :·:, , . State Attorney attacked the integrity of learned counset _by not : disclosing -the whereabouts of the appellants. Mr. MutalenJwa ' ' - . ·\I, . . · argued that that was not his role as an advocate. That only a · surity has the duty of ~nowing where the accused is and to . inform the Court so. Learned counsel for the appellants submitted that learned ' State Attorney's knowledge of the law is faulty for arguing that i an appeal can only proceed if the convict~ ar~ serving .their· . I ; I ii 1·.' II, at t~iat: ileveV: i'fi! an 1· ' ' I,. ' ' . . ,; ·1 ::,;/1 sentence. That that is so because even : , · · · I .:1 1,1 ! I ·11 ' accused person fail~ to appear in court during the trial~ his advocate may still proceed with the trial in terms of the proviso .to section 227(1)(a) of Criminal Procedure Act. In his opinion, since Part X of the Criminal Procedure ·Act does not contain a provision which bars appearance by counsel in a criminal appeal, this appeal is properly before the Court because the appellants are represented, so that the appellants are therefore not compelled to be in court. It was learned cou~sel's submission Ir :1:ri~HIY • I that the ability of Mr. Kennedy .to handle this/ appeal: • qu~stionable! . . ,i j ,. ,, ·: :. _) ·: ;:; ,/i1:ti I I : .' . ·- .. . ·. I . " I 1 - . '. Mr. Mutalemwa,. learned counsel, acknowledges· learned .Sta~e Attorney's cpn~ession that time between an application for copies of judgment and proceedings is discounted from the limitation. However, he said that it appears that learned State 8 · .:. ! '. ·i t:1' '. Attorney did: not peruse the record, for it is tfue lth:at a. h:~tt~~ lt>y . . I ,\; ; • , : ,·;: : I which• the appellants applied for copies of judgment was filed in Court_ on 22 nd December, 2008 and according to Court records the trial magistrate certified the judgment and- proceedings on · • 3rd -.February, 2009. And the appeal was filed on lih February, 2009 fourteen days from the date on which ~he proceedings and judgment were c_ertified. Therefore, he said, in computing the time within which to appeal, the same accrued on 3rd February, 2009 when the documents were supplied. Therefore the appea'I is in time as the forty-five days would have ~xpired 1after) 1 : ; - : • ! Jqµrfy- :iii; I ·1 _five days from the date on which the appe,119n~ were sl'.lpplied with the documents. It is in that context that he submitted that the appeal is not out of time. The foregoing were the arguments ·by learned counsel. I will conder and determine the preliminary objections from the bottom. In this regard I will consider the · provisions of .the Criminal Procedure Act which lay down the procedure and the time within which any person who is convicted of a criminal offence may appeal. By necessary_ impUc;:at1on,. the: , ~ourl:h . :I: I i <i:1 I I . : ; 1 preliminary objection . will . _pe considered · ~long ~ l ' with :ttj~/fifth - I ' ' preliminary objection. -Provisions which relate to appeals of a criminal nature are to be found under Part X of the Criminal Procedure Act. The 9 iif/ . i ;.. .. . ' :' !i:;. , {/ . . . . . ~/': . · most relevant part t~ this appeal of those pr~~isi~ns: is. ~~~ti:8n /:if. 361. I will reproduce it for ease of reference:- "361.-(1) Subject to subsection (2), no appeal from any finding, sentence or order referrecJ to in section 359 shall be entertained unless the appellant- ( a) has given notice of his intention to appeal wit~in ten days from the date of the .finding, sentence or orqer or, in the case of a sentence 9f corporal : punishment only, within three d;;if! of ~hr d~t.:irl1 · of such sentence· and I I · I : . . . ;I'! dli/ . ! !i),: • 1 • 1 ·· · ·:! .: .. ;. (b) has lodged his petition of appeal within forty- five days from the date of the· finding, sentence 7 or order, Save that in computing the period of forty-five days the time required for obtaining a copy of · the proceedings, judgment or order appealed against shall be excluded. · (2) The High Court may, for good cause, admit an appeal notwithstanding that : ~~e / per_iod fi 9[ C limitati;n prescribed in this section ha~ ;e1~ips.ed"~ .. ··1 :}/ I_ _ These provisions have put in place two stages 'f hich must be fqllowed, namely, .-'·• giving notice of intention to· appeat and_ lodging the petition of appeal. It is plain that notice of intention .-•· . to appeal must be given within ten days from the date of the r. I . :1:. - j' J ,I . · : · · • • -~ft l i:1: "' ·. ·.I,~ I : · ;{ impugned decision. From the language which the legislators· employed, the ten days exclude the .date on which such decision. - was pronounced. In that context . time to give notice of intention . ' ' to appeal ir) this matter accrued on_ ·20 th December, 2008: .It st therefore . ' expired . on 1 January, . 2009. According to the court . records Mr. Mutalemwa gave notice ~f intention to appeal o'n, ' I. behalf of the appellants on 23 rd Decetnber, 2008. ThiS means that notice of intention was given well in time.: · ; i -1 : : · I • . The second stage is the iodgment of tl-iJ Peiiti~b-.ofi . • . . /· _ 1 •• 1 · ibW~JiI • i -;i!J within forty-five days from the date of the fintfinb,. senten·ce. o'r order .. However, in computi~g this peri_od the_ time. required to . obtain _a copy of the proceedings, judgment or order appealed against is to be excluded. Also to be included, by necessary inference,. is the period of the first ten days within which the notice of intention to appeal is to be _given, leaving a period of _thirty five days which accrue on the date of the day on which the · copy of proceedings and of the judgment are ~upplied to the. - • I ' . I . . . convict. According to the reoord of the appeal the .cppy of · judgment and of the proC:eedings were certi~~d -! .,. Jn j . 3~ F~J~~t I ,~:, . 2009. That is th·e day when· they were ready for: collection .. lt is not - known· from the record on which·- Mr .. Muta·lemwa was - supplied with these documents but he filed the appeal on· 17th . . February, 2009 according to the rubber stamp impression. As ··- .Mr. Kennedy Edmund learned State· Attorney, observed in his . ' submitted, the criminal case registry officer ·who received. the 11 . . ' ,; . : . -:1;; 1 . •. : • ' /· :' .I'I ' ,·. ,' ' ' :, : 'iii:: :: ,l · .1, petition of appeal did not complete the part: on the petitio'ri '6f appeal. where it is· written: Presented for filing this ... day of · February, 2009 if time is computed from 3rd February, 2009, the statutory thirty-five which remained to . the credit·· of the th appellants expired on 10 March, 2009. The appeal is, therefore, in time. Accordingly, the fifth preliminary objection would fail if . . . Mr. Mutalemwa was legally mandated to give notice of intention to appeal on behalf of the appellants. I I ·, . '' : ; ....... : '' ' ' . . . I , · I ;·'-·!:i I_ With due· respect to learned .State Aft9rneys) .the: iifG_·:i:;~rl:h . ' I· , ·1 1 ' .: : 'I .,'1··11 ' ,.I 1, II preliminary objection cannot take· the Republic anywhere. Section 366(2) of the Criminal Procedure-Act does no create any requirement for an appellant to enter appearance in court cfuring the hearing of his appeal. It only grants him a right to be present at the hearing of his appeal in the following words:- "366 (1) ... (2) An appellant, whether · in custody or not, 1 shall be entitled to be present at the hea ring of his ' ! ' I i 11 appeal • (Underscoring provided). , /; , / . J. I ',' ,: : i:J ~L: · '' ;·/'' i/;l' l•li I : · - I' i I I : i- ., I ,. : : : : :: , By reason of the foregoing considerations the · fourt:h _ ground would also f~il .-if the appellants· have a right under the law to appeal while· they are fugitive criminals. 11 The third and the fourth preliminary objections appear to be inter-related. As stated earlier, it is the Republic's stand that 12 I: ! . ; I I -1i learned counsel for the appellants has acted . without instructions . in- this appe_al. That this so because the appellants have fled justice. So the issue· is whether learned counsel can act for convicted criminals who are on the run. In this connection, first · · and foremost, any person who is sentenced to imprisonment will . have his sentence executed in terms of section 327 of the Criminal Procedure Act which provides thus:- "327. A warrant under the hand of the Judge or . 1 . , I I • :_1 .i;: : . : I I . l 'i ·ti magistrate by whom any person is to be sentenced t6i Jj 1l imprisonment, ordering that the senten·ce :shall be. carried out in any _prison within Tanzania Mainland, shall be issued by the sentencing judge or magistrate, and shall be full authority to -the officer in charge of such prison and to all other persons for carrying into effect the sentence described in such Warrant, not being a sent~nce of death; and every sentence sha!I be deemed to commence from,· and to, in~lude the i whole of the day of the date on vy~ic1 iti _waT :i; . pronounced, except where otherwise pr~vid~d in this 'l ; Act or in the Perial Code". . Whatever construction is be put on those words, a person sentenced to imprisonment shall have his sentence executed in jail,· not otherwise. So whoever is aggrieved by the conviction and sentence of imprisonment will ha·ve to serve the sentence 13 I I . ' I • : i i ,' .unless it is suspended by the· court· which passed it. This -~on~uction conforms to the provisions of section 359(1) Of the Criminal Procedure act which provides thus:- . . "359.-(1) Save as hereinafter provided, any person . . ·aggrieved by any finding, sentence or order made· or. passed by a subordinate court other than . a = subordinate court exercising its extended Ipowers :by virtue of an order made vnder sectiop' f 3, ~f i~fiis; ~1i · may appeal to the High. Court· and . th:e ~ut;,6rdina't~! • • I I '•h. .; i court shall at the time when such finding, sentence or order is made or passed, inform that person of the ·period of time within which, if he wishes to appeal, ·he is required to give notice of his intention to appeal and to lodge his petition of appeal. (2) Any appeal to the High Court may be :an a matter of fact as well as on a matter of law". · i ~rocf?i~fi~ tct l ' . I . I . I : When sections 327 and ~59 of th~ C~i?1i9a1 : are read together the cumu!at1ve effect ,s t~at 9 person WQO ~as - 1.·;1; I ·, :-: : : : the right to give notice of intention to appeal ·and. to appeal is one who was either sentenced to a fine and he j$ outside of a prison or one who is outside prison whose sentence :h2s been .,· ._. ·suspended under section. 330(1) of the Criminal· ·p·rocedure Act or one who is in prison serving a custodial sentence. Section of 14 . f. L f ~ .' "~ Cri:m:inal Procedure Act 330(1) provides thus, the relevant part · o:nly:- "330-.-(1) When an offender has been sentenced to a f fine only and to imprisonment in default of payment of the fine, the court may suspend the execution of the se·ntence of imprisonment and may release the offender on his executing a bond ... ". r .; ·j , · ; i{:; ; ,J -I '; : ,; :1 -~ I ' ' 1 1 ~ ! i i, : '; ; ' In that circumstance, and since section 330(1) of Criminal Procedure Act does not cover them, the appellants could have been entitled to lodge notice of their intention to appeal and to · institute the appeal if· they had complied with the sentence of imprisonment which was imposed on them. They c:o"uld appeal while they are out of prison only if their sentence had been suspended in terms of section 330(1) aforementioned. For that reason the notice of intention to appeal was 9.iven[ in violation of ~ , I , law becauSe their right to appeal is tied up f":ith Ith~ir' beipft · prison · serving their sentence. Consequen~ly I the I . · noti¢:eJ !•of ' .: ' ,h 1 ' ' ' intention to appeal is null and void for being violative of the law. It follows that the appeal which is founded on that notice of intention to appeal is likewise fatally defective. Therefore; the appeal _is not only pre-mature as contended by Mr. Kennedy. Edmund, learned State Attorney, it is in law void ab initio; 15 I /1 ·. .'. ,,·· . . /::1:'.\ ; { . \ · 0 . '-'• ' . ,,. ,' ~·i., ,, · Upon the. foregoing considerations all the· preliminary '.;j+,?11{'.~i}jection'S succeed. In the result the ~ppeal, which. is ~,lfi~t fonstainable in law, is dismissed. " r:iUli ~ - -...- ·J.;;Ji Josephat M. MackanJa . JUDGE I I I I . Ji !: 16