20110609 TZCA Mbeya

1 IN THE COURT OF APPEAL OF TANZANIA AJ MBEYA (CORAM: RUTAKANGWA. l.A .. MBAROUK. l.A.. And ORIYO. J.A.) CRIMINAL APPEAL NO. 203 OF 200~ i HILDA ANDOLILE @ PANJAN .......................................... ............. APPELLANT THE REPUBLIC .............................. ~.~-~~~~..................... 1........ RESPONDENT ! (Appeal from the decision of the High Court of Ta~zania at Mbeya (Msuya, J.) dated the 15th day of June, 2009 in Criminal Sessions Case No. 15 of 2009 RULING OF THE COURT 22 & 30 June, 2011 ORIYO.-J.A.: The appellant, Hilda Andolile @ Panjani, lodged a Notice of Appeal to this Court on 29 June, 2009 against a decision of the High Court Mbeya, which sentenced her to six years imprisonment for mtslaughter. A record of appeal was duly prepared and copies sent t9 the parties. The I I . respondent Republic did not approve of the copy of notice of appeal as contained in the record; and this prompted Mr. Vicent Tangoh, learned Senior State Attorney on behalf of the Respondent to file a Notice of Preliminary Objection under Rule 4(2) (a) of the Cqurt of Appeal Rules, 2009. The objection was to the effect that:- 2 "The appeal before the Court is incompetent for lack I I of proper notice of appeal'~ 1 When the appeal came up for hearing, Mr. Vicent Tangoh appeared for the I I . respondent Republic and the appellant who was prese~t in person enjoyed the legal services of Mr. Mika T. Mbise,: learned advoca~e. I Submitting on the objection raised, Mr. TanJoh stated that the ! essence of the respondent's objection lies in the notice of appeal which I I I I complains agai_nst a decision of th~ High Court rbeya delivered by ' I Lukelelwa, J. dated 15 June, 2009 which convicted Her for the offence of I , manslaughter and sentenced her to 1ix years impris+ment. Mr. Tangoh i further stated that what is contained in the record before the Court and I i , I which is the subject of the complaints by the appeUant is a decision of I . i Msuya, J. delivered on 15 June, 2009. . I The learned Senior State Attorney contended that the notice of Appeal does not comply with the p~ovisions of Rul~ 61(2) of the Court . ' Rules, 1979, which specifies on the cbntents thereof. He submitted that ;in J I i , I terms of Rule 61(1) of the Rules, it is the notice of appeal which institutes . I an appeal to this Court in Criminal matters. And in c~nclusion, the learned .1 .... counsel submitted that as the notice of appeal is not against the High Courf I I I decision of Msuya l, it is therefore ,iincompetent an~ there is no valid,' , I i appeal before the Court. Citing the Court's decision in Wiliam Sunday, I i . I I vs. R, Criminal Appeal No. 75 of 2007 (unreported), he prayed that the 1 I , appeal be struck out. I I Apparently Mr. Mbise, learned advocate, was not persuaded by Mr! I ! I I Tangoh's submissions. He readily conceded that the ~otice of appeal was i ' 1 defective for instituting an appeal against Lukelelwa l's decision instead . I I ' of an appeal against Msuya l's decision. The learned counsel was of the I view that the defect here was minor· thus distingui~hable from William 1 I I I Sunday (supra). He urged the Court to take into ~ccount the fact that : I beside the error on the name of the , trial judge, the I notice of appeal otherwise conformed with "Form B' ill the First Sched U1e, in terms of Rul~ 1 61 (7) of the Court Rules. i i Rule 61 (1) of the Court of Appeal rules 1979 sta tes:- 1 {1J Any person who d~sires to appear to the Court shall give notice /h writing, which Ishall be i I lodged in triplicate with the Registrar of [the High 4 Court at the place where the decision against which it is desired to appeal was given, ' within I fourteen days of the date of that decision, and the notice of appeal shall institute the appeal. (Emphasis supplied) In William Sunday vs. R. (supra), we underscored the importance of a notice of appeal under Rule 68 (1) of the Court Rules, 2009 (identical i to Rule 61 (1), 1979), in that it instituted the appeal. And I in terms of sub rules 2 and 7 thereof, the said notice has to comply with a given format as prescribed under "FORM B" (supra) and must contain certain particulars; I including the name of the High Court'Judge whose decision is complained against. In view of the importance of the notice of appeal to this Court and the mandatory nature of Rule 61 of the Court Rules, we are unable to i agree with Mr. Mbise, learned advocate that the omission to state the I name of the Judge of the High Court whose decision is the subject of 1 appeal is a "minor" defect. With due respect it is not. 5 I In the event, we agree with Mr. Tangoh, learned Senior State; Attorney, that the above deficiency invJlidates the notiJe of appeal. In the absence of a valid notice of appeal, tJis appeal is ren ~ered incompetent. 1 I Accordingly, we strike it out. DATED at MBEYA this 24th day of June, 2011. E.M.K. RUTfKANGWA JUSTICE OF APPEAL j M.S. MBAROUK JUSTICE OF APPEAL I K.K. ORIYO I JUSTICE OF APPEAL I certify that this is a true copy of the briginal. ~ P.W. BAMPIKYA SENIOR DEPUTY REGISTRAR COURT Of APPEAL I