20060724 TZHC Moshi3

~v :~.,.~:;:,::::,,,,,, ···• IN THE HIGH COURT OF TANZANIA ATMOSHI (DC) CRIMINAL APPEAL NO. 118 OF 2003 (C/F DC MOSHI CRIMINAL CASE NO. 898/2002) THE REPUBLIC ----------------------- APPELLANT VERSUS 1. HASSAN SELEMAN ) 2. NASSORO J. L YIMO) ----------------- RESPONDENTS JUDGMENT HON. JUNDU, J. The Respondents in this appeal namely Hassan s/o Selemani and Nassoro J. Lyimo in the trial court were charged with causing grievous harm c/s 225 of the Penal Code, Cap. 16, Vol. 1 of the laws. The particulars of the offence were that the Appellants jointly and together on 30th day of September, 2002 at about 12.00 hours at Kiyungi within the Municipality and District ofMoshi Kilimanjaro Region did cause grievous harm to one Jafari s/o Mussa on his right hand and left hand by using apanga. Having heard the evidence of the prosecution witnesses and the defence side, the trial magistrate found the Respondents guilty of the offence charged and convicted them accordingly. He sentenced each of the Respondent to one year ·' imprisonment and ordered all of them to pay compensation of shs. 50,000/= to the complainant (Jafari s/o Mussa) for the injuries he had sustained. The Appellant, that is the Director of Public Prosecutions was dissatisfied with the said sentence and compensation order imposed on the Respondents by the trial magistrate hence this appeal to this court. In its Petition of Appeal, the Appellant has listed five (5) grounds of appeal namely:- (1) That the trial magistrate erred in law by awarding lenient sentence of one year imprisonment to the Respondents. The trial magistrate did not take into 1 i I consideration the severe injuries inpicted by the Respondents to the victim I (PW.I). , 1 11 • (2) That the injuries inflicted to the victim (complainant) are dangerous as r: . . . indicated in the PF3 and have resulted to permanent deformity of complainant's hands which cannot\be , rectified in any. way. . (3) That taking into consideration that \the Respondents stabbed the complainant with a panga indicated that their a9t was of pure malice hence severe sentence I . was to be awarded as prayed by the public prosecutor when the case was at mitigation stage. I · (4) That as the result of injuries inflicted by the Respondents to the complainant he was admitted at K.C.M.C. refeJal hospital for three weeks the situation which caused him a lot of expense~ and up to the moment he is still under ' 0 I treatment at the aforementioned ho~pital. (5) That with regard to the aforementidned ground in paragraph 4 above, the I amount awarded to the complainan~ as compensation amounting to the tune of I Tshs. 50,000/= is very minimal when compared to the nature of injuries inflicted to him by the RespondenJ. . Based on the above named grounds of appLl, the Appellant in the Petition of Appeal prayed:- (i) That the inappropriate sentence!imposed to the Respondent by the trial magistrate be reversed and sev~re sentence be substituted thereto. ·' (ii) That the inadequate compensati,on awarded to the complainant (victim) be 1·, increased to the tune of shs. 500,000/= with regard to the nature of I · . I i~flicted injuries. • (iii) That your Honourable court ma;r issue any other relief(s) deemed fit and . just under the circums~ces. l . The appeal was heard on 10/5/2005 in the .bsence of the Respondents. This date of l hearing was fixed in the presence of the Respondents on 14/3/2006. Mr. Juma, the !: learned State Attorney who appeared and represented the Appellant made very j, forceful submission in support of the appea!t. I hereby commend him for his diligence · · and for very lucid submission. 2 However, having carefully looked at the relevant provisions of the Criminal Procedure Act 1985 governing appeals by the Director of Public Prosecutions (the ____,_. . _ __ __ ___ -__ _ _ J.\ppellant) to this court, I am satisfied that there is non-compliance of the mandatory ·r:Lf'"';,_;·,,·,~,-""''"'''•·''•' ;ro~isions of the said provisions o;the law which renders this appeal incompetent before this court such that I need not determine this appeal on merits. To be specific, the Director of Public Prosecutions, the Appellant in this appeal did not comply with Section 379- (I) (a) of the Criminal Procedure Act, 1985. This relevant provision of the said law states as follows - " 379. -(1) Subject to subsection (2), no appeal under Section 378 shall be entertained unless the Director of Public Prosecutions - (a) has given notice of his intention to appeal to the subordinate court within thirty days of the acquittal, finding, sentence or order against which he wishes to appeal;" My careful perusal of the record of the lower court does not show that the Appellant did give the required notice of intention to appeal as required under the above named provision of the Criminal Procedure Act, 1985. The said record shoes that there is a handwritten letter dated 10/4/2003 from one "Jafari Mussa" to "Maha.kama ya Mkoa, S.L.P. 19, Moshi (M)" with a caption "YAH: OMBI LA NAKALA HUKUMU YA KESI NO. 898/2002 MSHITAKIWA- (1) NASSORO JOMA (2) HASSANI SELEMANI. Mimi Jafari Mussa naomba na.kala ya hukumu ya kesi yangu kufuatana na kutoridhika kwa hukumu iliyotolewa. Kwa hiyo naomba hukumu hiyo itazamwe upya. Hukumu ilifanyika tar. 07/04/2003". To my knowledge the said Jafari Mussa in the said letter states that he was not satisfied with the judgment of the trial court and he requests or applies to be supplied with the copy of the judgment so that the same can be examined afresh. He might have meant that he wished to ,cd·.,,,,,, , '"- .· ,. -, appeal against the decision of the trial court. But in law was he competent to do so he being the complainant mentioned in the charge sheet in the trial court? 3 In my considered view, though the said Jafari Mussa, the victim or the complainant . .. . . . . . mentioned in the charge sheet was aggrieved by the decision of the trial magistrate, in law he is ;:'f,:".:::+~:~.•-,:~ .'i".~'-;::-::.~-V.:~':' .-';•-~.:-;-.:.~-=::.::· :.;'7 ;,•!:. .. .• : incompetent to appeal to this court under the provisions of the Criminal Procedure Act, 1985 0 which allows the Director of Public Prosecutions to appeal to this court. Part X (c) of the Criminal Procedure Act, 1985 governs "Appeals by Director of Public Prosecutions" to this court. For the purpose of who can appeal, one has to refer to the definition of the Director of Public Prosecutions stated under Section 377 of the Criminal Procedure Act, 1985. It states as follows - "Director of Public Prosecutions includes any officer subordinate to him acting in accordance with his general or special instructions". I have no doubt whatsoever in my mind that the above definition of the Director of Public Prosecutions does not include or cover the said Jafari Mussa who was the victim or complainant mentioned in the charge sheet in the trial court. He is not any officer subordinate to the Director of Public Prosecutions acting in accordance with his general or special instructions hence is not competent to issue notice of appeal under Section 379 (1) (a) of the Criminal Procedure Act, 1985 or appeal to this court under Section 378 (1) of the Criminal Procedure Act, 1985 against an acquittal, finding, sentence or order made or passed by a subordinate court. To make the story short, I find and hold that the non-compliance of the mandatory provisions of Section 379 (1) (a) of the Criminal Procedure Act, 1985 by the Director of the Public Prosecutions, the Appellant in this appeal renders this ·' appeal incompetent before this court. I hereby accordingly struck it out. It is so ordered. ~~ F.A.R. JUNDU, JUDGE, 24/7/2006 Right of Appeal Explained. 4 .,./ '.,_' ~ ~ f • ,/ :({:·./.;:.• :-_t.,,0.;_ •.·.,-::~-·- ,,,.-_. ._.,.- F.A.R. JUNDU, JUDGE, 24/7/2006 0 24/7/2006 Coram: F.A.R. Jundu, J. For the Appellant: Miss Rugaihuruza, State Attorney For the 1st Respondent: present 2nd Respondent: present CIC: Matiku I Court:- Judgment delivered in the presence of Miss Rugaihuruza, learned State Attorney for the Republic/Respondent and in the presence of the 1st and 2nd Respondents. F.A.R. JUNDU, JUDGE, 24/7/2006 ATMOSHI. ·' () ,5