20120525 TZCA Tabora

I IN THE COURT OF APPEAL OF TANZANIA ATTABORA (CORAM: MUNUO, LA., KIMARO ).A., And M)ASIRI, IA.) CRIMINAL APPEAL NO 83 OF 2012 DIRECTOR OF PUBLIC PROSECUTION .......................................... APPELLANT VERSUS BONIFACE MATHIAS @ FIKIRI ........................................ . .......... RESPON DENT (Appeal from the Conviction of the High Court of Tanzania at Tabora) (Mujulizi, 1) dated 10th October, 2008 in Criminal Session No. 3 of 2005 RULING OFTHECOURT 24& 28 May, 2012 MUNUO, ).A: In Criminal Sessions Case no. 3 of 2005 in the High Court of Tanzania at Tabora, Mujulizi, J. convicted the respondent Boniface Mathias @ Fikiri of manslaughter c/s 195 of the Penal Code, Cap 16 R.E 2002. The prosecution alleged that on the 4th April, 2005 at Songambele Village in Kasulu District within Kigoma Region, the respondent unlawfully caused the death of one Hamisi s/a Mgereza. The respondent pleaded guilty to the charge, was found guilty and duly convicted after accepting the 1 prosecution facts as correct whereupon the learned trial judge sentenced him to 3 years suspended sentence on condition that he maintains good behavior during the material period. The Director of Public Prosecution lodged the present appeal against the sentence on the sole ground that the sentence is illegal. Mr. Hashim Ngole, learned Senior State Attorney represented the DPP. The respondent was represented by Mr. Kamaliza Kayaga, learned advocate. Counsel for the respondent submitted that the notice of appeal which instituted the appeal was brought under the wrong provisions of law in that it was filed under section 6(2) of the Appellate Jurisdiction Act, Cap 141 R.E 2002 instead of being brought under Rule 6 1(1) of the Court of Appeal Rules, 1979 which were operating at the material time (now Rule 68(1) of the Tanzania Court of Appeal Rules, 2009, the current Court Rules). Counsel for the respondent cited the case of Luchalamila Mawanga versus Republic Criminal Appeal No. 319 of 2007 (CAT at Tabora) (unreported) as authority. Since the Notice of Appeal was brought under the wrong provision of law, Mr. Kayaga urged us to strike out the incompetent appeal. 2 •1 The learned Senior State Attorney conceded that the appeal is incompetent because the Notice of Appeal which instituted that appeal was brought under the wrong provision of law. We are of the firm view that the Notice of Appeal should have been lodged under the provisions of Rule 61(1) at the material time now Rule 68(1) of the Court Rules, 2009 which states inter-alla: 68(1) Any person who desires to appeal to the Court shall give notice in writing, which shall be lodged in triplicate with the Registrar of the Hiih Court at the place where the decision against which it is desired to appeal was given, within thirty days of the date of that decision, and the notice of appeal shall institute the appeal" It goes without saying that the Notice of Appeal in the record which was brought under the wrong provisions of law is defective and as such it renders the appeal incompetent. The learned Senior State Attorney conceded the same. On this we are fortified by the dedsions of the Court in Leons Silayo Ngalai versus Hon. Justine Alfred Salakana Civil Appeal No. 38 of 3 1996 (CA) (unreported) in which the Court refused to adjourn an application and observed that: 11 an incompetent appeal amounts to no appeal. Under such circumstances what the court does is to strike out the purported appeal off the register/' The Court ruled the same in Ghati Mathusela versus Matiko Maribo Civil Application No 6 of 2006 (CA) (unreported) and also in Edward Bwacha and 3 others versus Ali Civil Application No. 128 of 2006 (CA) (unreported). Under the circumstances we strike out the incompetent appeal. DATED at TABORA this 25th day of May, 2012 E. N. MUNUO JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy of the original. "A.. f*( pa (Z. A. M ad a) : L) \ \. / Al 4