20190715 TZHC Mbeya3

IN DRE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA I .1 IN THE DISTRICT REGISTRY OF MBEYA j. ATMBEYA CRIMINAL APPEAL NO. 175 OF 2018 (Originating from Criminal Case No. 25/201 7from District Court of Chunya at Chunya THE DIRECTOR OF PUBLIC PROSECUTION.............APPELLANT VERSUS BARICK ENOS 1VI'IATASAGA. .................................... RESPONDENT JUDGMENT Date of Judgment: 15.07.2019 DR. A. J. MAMBI, J. This Judgment emanates from an appeal filed by THE DIRECTOR OF PUBLIC PROSECUTION challenging the decision of the District Court Originating from Criminal Case No. 25/2017 from District Court of Chunya at Chunya, within Mbeya Region. In the District Court of Chunya the Respondent (BARICK ENOS MWASAGA) was charged with seven related counts. In the first count the appellant was charged withan offence of unlawful entry into the National Park c/s 21(1) (a) (b) and section 29(1) and (2) of the National Parks Act Cap 282 [R.E2002]. In the Second count the appellant was charged with an offence of unlawful possession of forest produce c/s 88 of the Forest Act No.14 of 2002. The records show that the appellant in the 3, 4, 5 and 6th was charged with similar counts mainly based on an offence of unlawful possession of forest produce without 1 Iy -J marking contrary to Regulation 7 and 58 of the Forests Regulation 20014 read together with Section 106 of the Forest Act No.14 of D 2002. The appellant was not found guilty as charged and was exonerated from all counts and the Trial Court acquitted him.The decision of the trial court was based on the fact that the Prosecution failed to prove the charges against the accused beyond reasonable doubt. The Director of Public Prosecution (DPP) was not satisfied with the decision of the Trial Court. Having been aggrieved, The DPP filed an appeal preferring five grounds of appeal as follows: That the trial magistrate erred both in points of law and fact by acquitting the respondent while the prosecution proved the case against him beyond the standards required. That the trial magistrate erred both in points of law and fact by disregarding the evidence of PW 1. That the trial magistrate erred both in points of law and fact for failure to analyze the prosecution properly hence arrived into erroneous decision. That the trial magistrate erred both in points of law and facts by introducing new facts in judgment. That the trial magistrate erred in points of law by failing to connect all the prosecution evidence which proves the charge against the accused person. During hearing, the Appellant (Republic) was represented by the learned State Attorney Mr. Baraka Mgaya, while the respondent appeared under service of the learned Counsel Mr. Rwekaza. 2 Earlier, the respondent raised preliminary objections on two points of law. However, during hearing the learned Counsel for the ) respondent Mr. Rwekaza dropped one point of preliminary objection that was based on the wrong citation of the title and remained with one point based on the fact an appeal was filed out of time. During hearing the learned Counsel for the respondent made brief submission on one point preliminary objection. He argued that the appeal was filed out of time contrary to section 379 (1) (b) Criminal Procedure Act, Cap. 20 [R. E. 2002]. Mr. Rwekaza was of the view that, an appeal by the DPP needs to be filed with 45 days from the dates of Judgment and proceedings have been obtained. Mr. Rwekaza avered that the Judgment and Proceedings from the trial court were ready for collection on 30th April, 2018. He contended that the appeal was required to be filed before 22/06/2018, but the appellant filed his appeal on 16/10/20 18 after expiration of 124 days. He referred this court to the decision of the court in AIDAN CHALE VS. REPUBLIC, CRIMINAL APPEAL NO. 130 OF 2003 T. L. R. 2005 PAGE 76. He submitted that it is the contention of the respondent that the appeal before this was incompetent. In response, the DPP through the learned State Attorney Mr. Baraka Mgaya briefly submitted that the Preliminary Objection raised by the respondent counsel is misconceived. He argued that, Section 379 (1) (b) is clear that the appellant rightly appealed within 45 days from the date of judgment delivery. Mr. Baraka argued that the provision of the law is clear that in computing the days, the time for collection of proceedings and documents are excluded. He 3 averred that the appellant received the copy of Judgment on 071h October, 2018 and filed an appeal on 16th October, 2018 (40 days from the date of receiving judgment). Mr. Baraka substantiated his argument by submitting that, the court registry shows the date we collected the document. We wish to supply the copy of register to the court. The respondent Counsel briefly rejoinded that the preliminary objection is in point of law and does not require a proof by the documentation. He argued that Section 67 of the Evidence Act provides the manner of tendering secondary document. He argued that even in the case of Mukisa Biscuit Manufacturers, the court insisted that Preliminary Objection should be in point of law and not fact that needs to be ascertained. I have thoroughly gone and considered the submissions and arguments by both parties including the documents. In my considered view, the main issue here is whether this appeal is incompetent for none compliance of the legal provisions. The question to be determined is whether this appeal was filled out time or not. It is clear from the records that the appellant filed his appeal out of time contrary to section 361 of the Criminal Procedure Act, Cap 20 [R.E.200}. The Respondent Counsel in his submission objected that the appeal was filed out of time contrary to section 379 (1) (b) Criminal Procedure Act, Cap. 20 [R. E. 2002]. He contended that an appeal by the DPP needs to be filed with 45 days from the dates of Judgment and proceedings have been obtained. The appellant through vehemently contended that the point of 4 objection by the respondent has no merit since the appellant rightly appealed within required time by the law. He relied on the copy of ) court registry to show that the DPP appealed within time. The question to be determined by this court is whether this appeal is incompetent for noncompliance of sectionsboth 361 & 379 of the Criminal Procedure Act, Cap 20 [R.E.2002.While section 361 is a general proviso which deals with time within which a party can appeal, sections 378, 379 and 380 deal with appeal by the Director of the Public Prosecution. I have decided to refer the two sections (section 361 and 379) since both provisions of the law deal with an appeal. However, since the parties have focused more on section 379 which mainly provide with an appeal by the DPP, Twill start discussing this section before embarking on other relevant sections and case laws.) Indeed section 379 (1) provides as follows: "(1) Subject to subsection (2), no appeal under section 378 shall be entertained unless theDirector of Public Prosecutions- (a) has given notice of his intention to appeal to the subordinate court within thirty days oft he acquittal, finding, sentence or order against which he wishes to appeal; and(b) has lodged his petition of appeal within forty-five days from the date of such acquittal,finding, sentence or order; save that in computing the said period of forty- five days the time requisite for obtaining a copy of the proceedings, judgment or order appealedagainst or of the record of proceedings in the case shall be excluded. 5 (2) The High Court may, for good cause, admit an appeal notwithstanding that the periodsof limitation prescribed in this - section have elapsed". Indeed the most relevant part of the above section is subsection one (1) (a) which requires the DDP to file his appeal within forty-five daysafter obtaining a copy of the proceedings. I agree with the learned State Attorney that that in computing the said period of forty-five days the time requisite for obtaining a copy of the proceedings, judgment or order appealed against or of the record of proceedings in the case are required to beexciuded. The question is, did the appellant appealed within time after obtaining the copy of the proceeding and Judgment?. My perusal from the trial record shows that the Judgment was delivered by the trial on 30/4/2018. This means that the appeal was required to be filed within forty five days as required by the law. Even if the law requires the court in computing time limit to consider and exclude the time for requesting the copy of proceedings and judgment but should the appellant be given unlimited time of collecting such documents?. Suppose, say it takes months and years and the appellant comes with a defence that in computing the said period of forty-five days the time requisite for obtaining a copy of the proceedings, judgment or order appealed against or of the record of proceedings should to be excluded. In my view this will createinjustice to the other parties as on may relax for long• time without appealing relaying on the exception of the law under section 379 (1) (a) and 361 (1) (a). In adhering to the principle of "timely justice for all", the court needs 11 to consider reasonable time that the appellant has spent in accessing the copy of documents for filing appeal from the court ) before using exclusion exception under both sections 379 (1) (a) and 361 (1) (a). In this regard the appellant must show that he has used efforts to obtain the documents from the court and how such court or Tribunal inhibited or barred him from accessing such documents within reasonable time. My perusal from the records has revealed that the appellant filed his appeal on 16 October 2018 (almost sex month) from the date of delivery of judgment (30/4/20 18). In my view the duration of six month is too long for this court toinvoke exception under section 379 (1) of the Criminal Procedure Act, Cap 20 [R.E.2002].In other words in my considered view the appellant cannot use exceptions (exclusion rule) under section 379 (1) as a shield, given the long time expired after filling this appeal.After I had scanned the impugned Appeal, it became clear to me that the appellant filled this appeal more than four months after 45 days expired. As correctly submitted by the learned Counsel for the Respondent, it appears the Judgment was ready for collection on 30thApril 2018 but the Petition of Appeal was filed in 26. 10.2018. In my considered view, since the appellant did not comply with the mandatory requirements of the law, it is as good as saying there is no appeal at this court. I wish to refer the decision of the court in Joseph Ntongwisangue another V. Principal Secretary Ministry of finance & another Civil Reference No.10 of 2005 (unreported) where it was held that: 7 "in situation where the application proceeds to a hearing on merit and in such hearing the application is found to be not only ) incompetent but also lacking in merit, it must be dismissed. The rationale is simple. Experience shows that the litigations if not controlled by the court, may unnecessarily take a very long period and deny a party in the litigation enjoyment of rights granted by the court. Reference can also be made to the decision of the court of Appeal of Tanzania in The Director of Public Prosecutions v. ACP Abdalla Zombe and 8 others Criminal Appeal No. 254 of 2009, CAT (unreported) where the court held that: "this Court always first makes a definite finding on whether or not the matter before it for determination is competently before it. This is simply because this Court and all courts have no jurisdiction, be it statutory or inherent, to entertain and determine any incompetent proceedings." I am thus of the view that on account of the same defects there is no valid Appeal against the decision of the District Court.From the foregoing brief discussion, I am of the settled mind that thepurported appeal is incompetent and I hereby struck it out. This means that the point of preliminary objection raised by the respondent is sustained and upheld. I feel it is requisite however, to advise the appellant that if he wishes to further pursue his right to appeal, he is at liberty to do so subject to the law of limitation. Right of appeal explained. JUDGE 15. 07. 2019 Date: 15.07.2019 Coram: W. M. Mutaki - DR ) Appellant: Present For the Republic: Mr. Shindai Michael, State Attorney. B/C: Sarah A. Mungure M/S Slivia Mwalwisi - Advocate for Respondent. Court: Judgment is hereby delivered in the presence of appellant and advocate for appellant M/S Slivia Mwalwisi and Mr. Shindai, State Attorney. W. M. Nutaki Deputy Registrar 15.07.2019 PI