NA TZCA Tabora

IN THE COURT OF APPEL OF TANZANIA AT TABORA (CORAM: KIMARO,J.A.,MASSATI.J.A., And MZIRAY,J.A.) CRIMINAL APPEAL NO.28 OF 2014 , MPAKALUHE JUMLA ••••••••••••••••••••••••••••••••••••••••••••••••••••••••• APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDEDNT (Appeal from the judgment of the High Court of Tanzania at Tabora) {Songoro, l) dated 15th day of November, 2013 in Criminal Appeal No.131 of 2011 RULING OF THE COURT 9th &15 th October,2015 KIMARO, J.A.:- The appellant, Mpakaluhe Jumla, was convicted by the District Court of Kahama with the offence of Incest by male contrary to section 158 (1) (a) of Penal Code, [CAP 16 R.E.2002]. He was sentenced to thirty five years imprisonment.· He was alleged to have unlawful sexual intercourse on 18th January, 2009 with Ndebile Mpakalule, his own da·ughter, aged 13 years, while knowing that it was a prohibited relationship. 1 His appeal to the High Court was not successful. Before the Court his five grounds of appeal amount to a general complaint that the evidence was not sufficient to justify his conviction. The appellant appeared in person to prosecute his appeal when the appeal was called on for hearing. The respondent/Republic was represented by Mr. Iddi Mgeni, learned State Attorney. Before the hearing of the appeal the Court had to determine a preliminary objection raised by the respondent under Rule 4(2) (a) of the Court of Appeal Rules, a prior notice having been filed earlier, on 8th October 2015. The substance of the preliminary objection is that the notice of appeal filed by the appellant on 27th November, 2011 is incompetent as it cites a case for which the appellant was not convicted with. Submitting in support of the preliminary objection, the learned State Attorney said the appellant indicated in his notice of appeal that he was convicted of the offence of rape while he was neither charged with that offence nor convicted with the same. He said the appellant by citing a 2 wrong case contravened Rule 68 (2) of the Court of Appeal Rules, 2009. He prayed that the appeal be struck out for being incompetent. In reply the appellant said he was assisted by the Prison Authority to prepare the notice of appeal and because he does not possess sufficient knowledge on how to prepare it, he prayed that the Court takes into consideration his position. The preliminary objection has merit and we need not take much of our time in determining the same. Rule 68(2) provides: "Every notice of appeal shall state briefly the nature of the acquittal conviction, sentence, order or finding against which it is desired to appeal and shall contain a full and sufficient address at which any notices or other documents connected with the appeal may be served on the appellant or his advocate and, subject to rule 17, shall be signed by the appellant or his advocate. " In addition, Rule 68 (7) requires the notice of appeal to substantially comply with Form Bin the first Schedule to the Rules. Form B requires the appellant to indicate the case number against which the appeal is preferred, the name of the judge who determined the 3 appeal, the offence and the date of the conviction or whatever other order the appellant wants to appeal against. The record of appeal at page 23 shows that the appellant was convicted of the offence of incest by males contrary to section 158(1) (a) of the Penal Code. It is the same offence for which the High Court on 15th November, 2013 in Criminal Appeal No 131 of 2011 determined by Hon. Judge Songoro, upheld the conviction. The appellant therefore, by indicating in the notice of appeal that Hon. Judge H.T. Songoro gave a judgment on 15th November 2013 in Criminal Appeal No. 131 of 2013 in which the appellant was charged with the offence of rape is not correct. The notice of appeal contravenes Rules 68(2) and (7) of the Court of Appeal Rules. It is defective. Since under Rule 68(1) a notice of appeal institutes an appeal, given the defects in the notice of appeal, there is no appeal before the Court. Having dealt with the preliminary objection, the court "suo mottd' required the learned State Attorney to inform the Court whether at the time the appellant was charged with the offence of incest by male contrary to section 158(1) (a) of Cap.16 the consent of the Director of Public 4 Prosecution to prosecute the appellant was obtained. The learned State Attorney readily admitted that the consent of the Director of Public Prosecutions was not obtained. He said since the appellant was prosecuted for the offence without the consent of the Director of Public prosecution the proceedings were a nullity. The appellant was not in a position to say anything helpful to the Court. Until on 12th March, 2009 when the Written Laws (Miscellaneous Amendments) Act, No. 34 of 2009 repealed section 162 of the Penal Code, the prosecution for the offence of incest by males required the consent of the Director of Public Prosecution. See the case of Moshi Raphael V R Criminal Appeal No. 310 of 2010 (unreported). The record of appeal at page 1 shows that the charge against the appellant was filed in court on 23 rd January, 2009. There was no prior consent from the Director of Public Prosecution for the prosecution of the appellant for the offence of incest by males as required then by the law. Since section 162 was still in force by then, the trial court lacked jurisdiction to try the case. 5