20071221 TZCA Dar es Salaam

fl IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MROSO, J.A., KAJI, J.A. And RUTAKANGWA, J.A. · CRIMINAL APPEAL NO. 20 OF 2004 1. SALEHE RAMADHANI JUMA 2. OMARI ABDALLAH KINDAMBA 3. MWISHEHE SULTANI NDOVU APPELLANTS 4. FAIDA SULTAN@ WAKUBANGAIZA 5. MOHAMED DIWAN! MSHINDO @ KIMBUNGA VERSUS THE REPUBLIC ··••111••·········································· RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Dar es Salaam) (Luanda, J.) dated the 4 th day of April, 2003 in Criminal Sessions Case No. 2 of 1996 RULING OIF THE COURT 28 November & 28 December, 2007 MROSO, J.A.: Five appellants wish to challenge the decision of the High Court at Dar es Salaam by which they were all found guilty of murder and were sentenced to suffer death by hanging. The first appellant was represented in this appeal by Mr. Mpoki, learned advocate, the 2 second appellant was represented by Mr. Magafu, learned advocate and the third and fifth appellants were represented by Mr. Fungamtama, learned counsel. Finally, the fourth appellant was represented by Mr. Chipeta, learned advocate. At the commencement of the hearing of the appeal Mr. Boniface, learned Principal State Attorney for the respondent Republic, raised a point of objection in limine. He submitted that the joint notice of appeal of the respective appellants was filed out of time, so there was no competent appeal before the Court. It was not disputed that the decision of the High Court (Luanda, J.) which was being impugned was given on 4th April, 2003 in the presence of the appellants and of their advocates. Since they were aggrieved by that decision and wished to appeal, Rule 61 (1) of the Court of Appeal Rules, 1979 (the Court Rules) requires that they should lodge their notice of appeal to the Registrar of the High Court within 14 days of the date of that decision. But the Court Rules have special provisions for intending appellants who are in prison. Those provisions are in Rule 68 of the Court Rules. That Rule covers the •, ··•·, ',• 3 requirements for giving notice of appeal (Rule 61), for lodging a memorandum of appeal (Rule 65), for lodging a supplementary memorandum of appeal (Rule 66) and for presentation of arguments in writing (Rule 67) respectively of the Court Rules. Under Rule 68 of the Court Rules, an appellant who is in prison will be deemed to have complied with the requirements of the Rules cited above "if he gives to the officer-in-charge of the prison in which he is serving sentence a written notice of his intention to appeal, ... " It is also provided in sub-rule (2) (b) of the Rule that "the time between the giving of the notice ..... to the officer in-charge of the prison and its lodging by him with the Registrar of the High Courr' shall be excluded. In this appeal the notice of appeal in the record shows that it was dated 5th April, 2003 but it was lodged in the Registry of the High Court on 1ih day of September, 2003. That was some 165 days after the date of the decision against which the appeal was preferred, contrary to Rule 61 (1) of the Court Rules. The period of 165 days cannot be excluded in reckoning time for lodging the notice .. !' ; ·• 4 of this appeal as provided in sub-rule (2) (b) of Rule 68 supra first, because the notice of appeal does not appear to have been given to the officer-in-charge of the prison in which the appellants were being incarcerated. Second, sub-rule (3) of Rule 68 was not complied with obviously because no notice was given to the officer-in-charge of the prison. The sub-rule (3) just referred to above stipulates as follows:- "(3) An officer-in-charge of a prison receiving a notice under this Rule, shall forthwith endorse (it) with the date and time of receipt and shall forward (it) to the Registrar of the High Court or the Registrar or Deputy Registra0 as the case may be. ,✓ It means, therefore, that since the provisions of Rue 68 of the Court Rules were not complied with, the appellant cannot take advantage of that rule and the date of lodging the notice of appeal will have to be the date when it was lodged to the Registrar of the High Court. The consequence is that the notice of appeal was time barred. Since under Rule 61 (1) of the Court Rules, ·the notice of appeal institutes the appeal and there is _no valid notice of appeal, there is no competent appeal before the Court at present. 5 Mr. Magafu, with the concurrence of the other learned counsel for the respective appellants, prayed that the Court invokes the provisions of Rule 44 of the Court Rules to use its discretion to extend the time for giving notice of appeal. Mr. Boniface objected to the prayer. He submitted, correctly we must say, that the application cannot save the incompetent appeal at any rate. It will have to be struck out first. Thereafter an application can be made, whether in this Court or in the High Court for extension of time. In the circumstances we have to uphold the objection in limine. There is no competent appeal before the Court and it is hereby struck out for contravening Rules 61 (1) and 68 of the Court Rules. Since we do not have before us reasons on oath for the delay in lodging the notice of appeal in time, it is left to the appellants to apply to this Court under Rules 8 and 44 of the Court Rules for enlargement of time to lodge their Notice of Appeal. J 6 GIVEN AT DAR ES SALAAM this 21 st day of December, 2007. J. A. MROSO JUSTICE OF APPEAL S. N. KAJI JUSTICE OF APPEAL E. M. K. RUTAKANGWA JUSTICE OF APPEAL I certify that this is a true copy of the original. NYIKA) ISTRAR