20160725 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 23 OF 2016 (From Kinondoni District Court Criminal Case No. 237/2012) DIRECTOR OF PUBLIC PROSECUTIONS ....................... APPELLANT VERSUS 1. CHRISTINA RAJA LIPANDULA .................... 1 ST RESPONDENT 2. GEOFREY HENRY ITEBA ............................ 2ND RESPONDENT Date of Last Order: 27/06/2016 Date of Ruling: 25/07/2016 RULING FELESHI, J.: The Appellant, the DPP, preferred an appeal to this Court to challenge the acquittal entered by the Kinondoni District Court in favour of the respondents in respect of the offences of Conspiracy, forgery and uttering false documents; contrary to sections 384, 333, 335(a), 337 and 342 all of the Penal Code, [CAP. 16 R.E, 2002]. On 23 rd day of March, 2016, M/S Ardor Attorneys for the 1st respondent raised two (2) Preliminary Points of Objection that:- (a) The appeal is time barred (b) The appeal is an abuse of the Court process. At the hearing of the Preliminary Points of Objection, Mr. Tumaini Kweka, learned Principal State Attorney represented the appellant, that is, the DPP while Ms. Christina Katala and Mr.Tendwa learned advocates, appeared for the 1st and 2nd respondents respectively. Page 1 of 9 Addressing the 1st limb of Preliminary Objection, Ms. Kata la submitted that, the appeal was filed on 25/01/2016, that is, 46 days upon the DPP receiving copies of proceedings on 11/12/2015 saying that that was contrary to section 379 of the Criminal Procedure Act, [CAP. 20 R.E, 2002] that requires him to file his appeal within 45 days from the date of receiving the copies of proceedings and Judgment. As to the 2nd limb of her Preliminary Objection, Ms. Katala submitted that, as the appellant was accorded enough requisite time to defend the case regarding the charge of forgery but she failed to prove her case beyond reasonable doubts, her preferred appeal therefore, amounts to abuse of the Court process. On his part, Mr. Tendwa submitted that, certification of the copies was made by the trial Court on 22/07/2015 which is the date when the DPP also collected the said copies. He argued that, the date appearing in the Attorney General's rubber stamp in the documents that is, on 11/12/2015 does not show whether that was the date when the said copies were collected. He cited the case of Aidan Chale vs. Rep.[2005] TLR 76. In response, Mr. Kweka submitted that, they were first served with certified copies of Judgment and proceedings on 01/10/2015 in which they discovered some pages missing and that the same were not well typed. On 28/10/2015 they wrote the Kinondoni District Court Resident Magistrate in- Charge requesting to be furnished with proper proceedings whereas proper and complete copies were furnished to the Attorney General's office on 11/12/2015. Page 2 of 9 Thereafter, the appellant prepared a Petition of Appeal which was· received in Court on 25/01/2016. He argued that, a computation of time from 12/12/2015 to 25/01/2016 qualifies the appeal to have been filed within the prescribed time limit of 45 days adding that, the appeal is competent because a Notice of Appeal was timely filed on 29/06/2015. Further but, without any legal back up, Mr. Kweka conceded that, the rubber stamp of the office of Attorney General referred to by Mr. Tendwa is the official stamp used in the Dar es Salaam Regional prosecution Office for the Director of Public Prosecutions (DPP) in receiving documents. Notably, both respondents' learned counsels had nothing in rejoinder but, they instead, reiterated what they had earlier submitted in chief. Having considered the Court record and the respective submissions by counsels for the respondents and the learned Principal State Attorney, the following are the deliberations of this Court in disposal of the Preliminary Objections. To me, sections 378, 379 and 380 of the CPA, regarding the DPP's right to appeal, time line and the procedure for instituting his appeal are not hard to be understood. The provisions prescribe a position analogous to that prescribed by sections 359-363 of the same Act for an appeal preferred by a convict appellant against the DPP. Therefore, there remains no doubt whatsoever that, a right to appeal is inseparable from the right to be supplied with copy of the proceedings, judgment or order appealed against or of the record of proceedings in the Page 3 of 9 case. This thus makes it imperative that the way these documents are supplied and received must be clear from uncertainties. For that matter, any legal process service extended to the OPP in terms of the above provisions and processes in terms of sections 100, 101,365 and 381 of the CPA, must be directed to the DPP or State Attorney in-Charge of the prosecution office whose service delivery efficiency is subjected to inspections by the Attorney General conducted under Section 25(1) & (2) of the National Prosecutions Service Act, Cap.430 of the laws. It is therefore important, to underscore that, upon coming into force of the National Prosecutions Service Act (Supra) in 2008 the principle of generalia specialibus non derogant confers no room to other office instruments other than the DPP's office instruments to officiate legal functions and instruments which exclusively fall into the DPP's mandate. The provisions of Article 59B (2)-(4) of the Constitution of the United Republic of Tanzania, Cap.2 R.E.2002 and sections 4, 5, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the National Prosecutions Service Act (supra) clearly spells out the DPP's mandates and functions. The only one clear exception to the position I have alluded to above, is in respect of matters related to implementation of Government policy or supervision of officers within the National Prosecutions Service which by virtue of section 11(1) of the Attorney General (Discharge of Duties) Act, Cap.268 of the laws, requires the OPP to pay regard to general or specific directions issued by the Attorney General or Deputy Attorney General. Observance to the aforementioned provisions would therefore, legally Page 4 of 9 -.! resolve the issue of Attorney General's rubber stamp being wrongfully used to admit or receive DPP's legal documents or instruments. In The Attorney General vs. Mugesi Anthony, Bashiri Waziri & SAS Logistics Limited, Criminal Appeal No. 220 of 2011, (Mwanza Registry), (Unreported) the Court of Appeal of Tanzania underscored that:- " ......... In view of the clear provisions of the Constitution of the United Republic of Tanzania, Articles 59 and 59B and other legislative enactments including Acts 4 of 2005 and 27 of 2008, we entertain no doubts in our minds that the offices of the Attorney General and the Director of Public Prosecutions are by law enjoined to cooperate and work together in the performance, control and prosecutions in all criminal matters in Tanzania. We are of the view that, had the said Articles of the Constitution and the provisions of the other legislations been brought to the attention of the learned judge, we harbour no doubt that he would not have challenged the powers of the Director of Public Prosecutions in the case as he did. We find and hold that the learned judge erred in challenging the locus standi of the Director of Public Prosecutions in the matter which was criminal in nature". The above decision thus loudly expounds the DPP's locus standi in all matters of criminal nature. Now that there are specific laws requiring the DPP to be a party to criminal proceedings, to issue notice of appeal, apply for copy of the proceedings, judgment or order appealed against or of the . record of proceedings in the case, institute appeals and applications and argue them, it is then obligatory that under the Generalia specialibus non derogant principle the court and the DPP must ensure that official documents are served and received by the DPP with his endorsement constituting proof of service to the Court. The most recent specific legislation for our purpose is the National Prosecutions Service Act (supra) which, as aforesaid, became operational in 2008 by virtue of G.N.90 of 2008. According to its long title, the legislation Page 5 of 9 was enacted "to make provisions for the establishment of the National Prosecutions Service, to provide for the organization, management, monitoring, superv1s1on of prosecution and coordination of investigation with a view to promoting and enhancing dispensation of criminal justice, and to provide for related matters,". To me, that enactment is pioneered by Article 59B (5) of the Constitution which in 2005 was couched by the Parliament through Act No.1 of 2005 to read:- "The Director of Public Prosecutions shall exercise his powers as may be prescribed by any law enacted or to be enacted by the Parliament. "[Emphasis supplied] In the Permanent Secretary (Establishment), 2. Attorney General v. Hilal Hamed Rashid & 4 Others, Civil Appeal No. 64 C/F No. 66 of 2002 (Unreported), the Court of Appeal stated at page 10 as follows: "There is no flicker of doubt in our minds that the Constitution overrides all other legislations, Police Force and Prison Service Commission Act included. Admittedly, also Article 36(2) of the Constitution empowers the President to "remove" any officer he has appointed from office. However, the same Article subjects itself to any relevant law, in this case, the Police Force and Prison Service Commission Act. It is a principal of interpretation that generalia specialibus non derogant, that is, general things do not derogate from special things. So, the controlling provision in the case of the respondent is Police Force and Prison Service Commission Act, which does not recognize retirement in public interest." [Emphasis supplied] It is thus clear that, any document concerning criminal matters which invites an action by the DPP should be so addressed to the DPP or State Attorney in-Charge of a prosecution office within the dictates of the court seized with jurisdiction to adjudicate over the matter before it. Directing or addressing such document or cause it received by the Office of the Attorney General cannot lead to proof of service and will be tantamount to Page 6 of 9 . ~ misplacement ultimately leading into loss of communication between the Court and the prosecution office which will further likely result into injustices. To avoid that, the DPP should conspicuously address herself to her clients and stakeholders of her own address and identity through which she may be properly addressed. In the present matter, as correctly submitted by the learned Principal State Attorney, following the Judgment of the trial Court dated 29/06/2015, the appellant through his prosecutor lodged a Notice of Appeal on the same date comprising of a prayer to be supplied with copies of Proceedings & Judgment. Though true that certified copies of Judgment and Proceedings were made available on 22/07/2015, there is no evidence that the appellant was notified of readiness of the said copies. It is clear to me that, once a party has applied to be supplied with copies of Judgment/Ruling, Decree/Drawn Order and or Proceedings, it is an obligation of the Court to notify such party of the availability of the said copies for collection or supply since after such an application, the parties are not expected to keep knocking the Court doors or roaming around the corridors just to ask the Court if the said copies are ready for collection. If that is considered the position, it will be expensive for parties because others hail from distant places but, even those living close to the Court premises, they will be wasting their precious time which they could otherwise attach to other productive activities. Besides, parties may further keep disrupting Court officers from attending other pending matters deserving their attention at the time. With the current technological Page 7 of 9 advancements and hand phone use devices, the Court cannot be said to be anymore finding it hard to communicate with her stakeholders provided such phone numbers or alternative communication devices are put in place and made accessible. As the appellant before this Court lodged his appeal on 25/1/2016 after getting the proper and duly compiled copies of proceedings on 11/12/2015, it is clear that by filing his appeal on that date he was on his 45th day. Section 379(1) (b) of the Criminal Procedure Act (supra) as amended provides:- "(1) Subject to subsection (2), no appeal under section 378 shall be entertained unless the Director of Public Prosecutions or a person acting under his instruction - (a) has given notice of his intention to appeal to the subordinate court within thirty days of the acquittal, finding, sentence or order against which he wishes to appeal and the notice of appeal shall constitute the 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 appealed against or of the record of proceedings in the case shall be excluded" [Emphasis added] Section 60(1) (b) of the Interpretation of Laws Act, Cap.1 R.E.2002 is instructive in computing time for the purposes of a written law. It read:- "S.60. (1) In computing time for the purposes of a written law- (b) where a period of time is expressed to be reckoned from, or after, a specified day, that day shall not be included in the period; [Emphasis supplied] Thus, it is from the above that this Court is of the unfeigned position that, the appeal was timely filed on the 45th day as required by law. Therefore the 1st limb of Preliminary Objection is hereby overruled. Page 8 of9 t, " In respect of the 2nd limb of Preliminary Point of Objection, out rightly, this does not qualify as a Preliminary Point of law in law. It is rather, a view or an argument worthy to be determined in the course of hearing of the merits of the appeal. Consequently, the 2nd limb of Preliminary Point of Objection has been misconceived and is likewise overruled. In the premises, the raised Preliminary Points of Objection are hereby overruled. The appeal should be set to proceed on merits. It is so ordered. DATED at Dar es Salaam this 25th day of July, 2016 \ \.. .M. FELESHI JUDGE Ruling delivered this 25th day of July, 2016 in th Mr.Kweka, learned Principal State Attorney for the Appellant and Mr .Tendwa, Advocate for the 2nd Respondent also holding brief of Ms.Katala, Advocate for the 2nd ResRog_Eie□t. ~~ ,,,,:/ ~ 1" 0 ii~... _-- \ ;,,, v , - - - 1-"--~. 0 -</ ~- /i i1\'i&l ~~,~.,.t. ,· {,;1 I'~'~ ~,. --L,," \\ \t'> '&.' I. FELESHI ,,,,<;;!- 0 \\__~,~~~UDGE ~~=~---· Page 9 of 9