joseph lugala vs republic 2023 tzca 130 21 march 2023

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA fCO RAM: WAMBALI, J.A., SEHEL, 3.A. And MAIGE. 3.A1 CRIMINAL APPEAL NO. 512 OF 2020 JOSEPH LUGALA .................................................................... . APPELLANT VERSUS THE REPUBLIC....... .................................................... . RESPONDENT (Appeal from the decision of the High Court of Tanzania at Iringa) (Kente, J .l Dated the 22nd July/2020 in Criminal Appeal No. 58 of 2018 JUDGMENT OF THE COURT 14* & 21st March, 2023 WAMBALI, J.A.; The appellant, Joseph Lugala was arraigned in the Court of Resident Magistrate of Njombe at Njombe in connection with the offence of incest by male contrary to section 158(1) (a) of the Penal Code, Cap 16 R.E. 2002 (now R.E. 2022). According to the particulars of the charge, the prosecution alleged that on 14th October, 2016 at Lwanzari Village within the District and Region of Njombe, the appellant had carnal knowledge of a girl aged ten (10) years who to his knowledge is his daughter. For convenience, we shall refer to the girl as "the victim". The prosecution case depended on four witnesses, the PF3 and the cautioned statement of the appellant. Basically, the substance of the evidence was to the effect that, on the material day at around 8.00 PM, the appellant entered into the victim's bedroom and had sexual intercourse with her and thereafter he warned her not to disclose the incident to anyone. The allegation was strongly denied by the appellant who emphasized that he could not have committed such an evil act to his own daughter who he had raised throughout the years. Nevertheless, after the trial court heard and considered the evidence of the parties on record, it made the finding that the prosecution had proved its case against the appellant to the required standard. It thus convicted and sentenced him to thirty years imprisonment. Aggrieved, the appellant lodged before the High Court, Criminal Appeal No. 75 of 2017 which was unfortunately struck out on 9th October, 2017 for being incompetent. It is on the record of appeal that the incompetence of the appeal was attributed to the defective notice of appeal. Subsequently, the appellant lodged an application for extension of time within which to lodge an appeal out of the prescribed time in terms of section 361(2) of the Criminal Procedure Act, Cap 20 R.E. 2002 (now R.E. 2022) (the CPA). The application was granted and the appellant was given thirty days to lodge the appeal from the date of the order, that is,. 29th August, 2018. On 6th September, 2018 the appellant lodged the petition of appeal at the High Court and consequently, the appeal was registered as Criminal Appeal No. 58 of 2018. As it were, the appellant's appeal was dismissed in its entirety, hence the current appeal. The appellant's appeal is supported by the memorandum of appeal consisting of five grounds of appeal. Nonetheless, for the reason to come to light shortly, we do not intend to reproduce the respective grounds hereunder. At the hearing of the appeal, the appellant appeared in person without legal representation, whereas the respondent Republic was represented by Mr. Tito Ambangile Mwakalinga, learned State Attorney. In the course of hearing, it was noted that the record of appeal did not contain the notice of appeal. We therefore asked the appellant to explain. Though he readily admitted that he did not lodge the notice of appeal, he insisted that his appeal has merit and therefore it should be heard and allowed resulting in his release from prison. For his part, Mr. Mwakalinga submitted that as conceded by the appellant and having regard to the record of appeal, there is no doubt that there is no notice of appeal which would have initiated the process of appeal at the High Court as required by law. He argued that in terms of section 361(1) of the CPA, no appeal from the subordinate court can lie to the High Court without the appellant having given the notice of appeal. He thus submitted that the petition of appeal which was lodged by the appellant at the High Court without having given the notice of appeal could not have Initiated the appeal. In his submission, the appellant's appeal before the High Court, therefore, was incompetent. In the circumstances, Mr. Mwakalinga prayed that the Court be pleased to invoke the provisions of section 4 (2) of the Appellate jurisdiction Act, Cap 141 R.E. 2019 (the AJA) to nullify the proceedings of the High Court in Criminal Appeal No. 58 of 2018 and set aside the judgment for being a nullity. In rejoinder, the appellant reiterated his earlier prayer that the appeal be heard and allowed. It is beyond controversy that according to the record of appeal and based on the concession of the appellant, no notice of appeal was lodged as required by law to contest the decision of the trial court. Therefore, the High Court improperly entertained Criminal Appeal No. 58 of 2018 while there was no notice of appeal. Apparently, what is on record is only the petition of appeal which was lodged by the appellant as alluded to above. In this regard, failure of the appellant to give the notice of appeal against the findings of the trial court contravened the provisions of section 361(1) (a) of the CPA. For avoidance of doubt, the said provisions states as follows: "361-(1) Subject to subsection (2), no appeal from any finding, sentence or order referred to in section 359 shaii be entertained uniess the appeliant: (a) has given notice o f his intention to appeal within ten days from the date o f the finding, sentence or order or, in the case o f a sentence o f corporal punishment only, within three days o f the date o f such sentence; (b) has lodged his petition o f appeal within forty-five days from the date o f the finding, sentence or order, save that in computing the period of forty- five days the time required for obtaining a copy o f the proceedings, judgment or order appealed against shall be excluded [Emphasis added]. In Binaisa Phares Sumwa and 2 Others v. The Republic, Criminal Appeal No. 61 of 2015 (unreported) the Court stated, among others, that: 11The provisions of section 361(1) o f the Criminal Procedure Act are definite and unmistakable. They require an intending appellant, aggrieved by a subordinate court's decisionf to not only lodge his notice o f intention to appeal within ten days from the date o f the impugned decision, but also file an intended appeal within forty-five days from the date o f the decision. In addition; the proviso to the said provisions excludes from the computation o f the forty-five days limitation period required for obtaining from the subordinate court a copy o f the decision sought to be challenged." (See also Renatus Muhanje v, The Republic, Criminal Appeal No. 417 of 2016 [2019] T7CA 103; [10 May 2019, TANZLII]. In the circumstances, in the present case, we agree with Mr. Mwakaiinga that the failure of the appellant to lodge the notice of appeal rendered the appeal before the High Court incompetent because the omission offended the provisions of section 361(1) (a) of the CPA. Dealing with an akin situation, the Court in George Daudi v. The Republic, Criminal Appeal No, 428 of 2018 (unreported) stated that: "In the present caser we are firm that the absence of the Notice ofAppeal in the High Court vitiated the appeal before that Court, and we declare that it was incompetent.." It follows that since the appellant's appeal at the High Court was incompetent, it had to be struck out so that he would have approached the same court to seek extension of time in terms of section 361 (2) of the CPA to lodge the notice of appeal and process the appeal if he was still interested to appeal against the decision of the trial court (see Francis Petro v. The Republic, Criminal Appeal No. 534 of 2016) [2019] TZCA 304; [27 August, 2019 TANZLII]. In the circumstances, it is unfortunate that the absence of the notice of appeal was overlooked by the first appellate court which proceeded to hear the appeal on merit although it was incompetent. In this regard, we respectifully disagree with appellant's prayer to proceed with the hearing of the appeal before us because it is incompetent for emanating from nullity proceedings of the High Court. Consequently, we invoke the provisions of section 4 (2) of the AJA to revise, nullify and set aside the proceedings of the first appellate court in Criminal Appeal No. 58 of 2018. We accordingly order. DATED at IRINGA this 20th day of March, 2023. F. L. K. WAMBALI JUSTICE OF APPEAL B. M. A. SEHEL JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL This judgment delivered this 21st day of March, 2023 in the presence of the appellant in person and Ms. Jacquiline Nungu, learned State Attorney for the respondent Republic, is hereby certified as a true copy of the original. I,O j DEPUTY REGISTRAR i k & V i ' f - COURT OF APPEAL \ _ .. '- iv 8