20160819 TZHC Arusha

~- .1 I ~ 11 1~, I I j I I I IN THE HIGH COURT OF UNlrt"ED REPUBLIC OF TANZANIA l . I (IN THE DIST~ICT REGISTR'!) j I ATARUSHA. 1 l I ' CRIMINAL APPEAL NO. 04 OF 2P16 I I (Originating from Arusha District!court Criminal Cas~ No. 150/2011) : I , THE DIRECTPR OF PUBLIC PR()SECUTION .... L...... APPELLANT: l , : VERSUS I : . .I I ; ABUTWALIB RAJAB MWENYERU@ BABU ......... RESPONDENT 1 I I RULING I l I S.M. MAGHIMB I, l ! 1. I On the 21/03/2013 vide Criminal ca e No. 150/2011 lat the District Cou~ of 1 Arusha, the respondent herein was ponvicted of the/ offence of Stealing iby Servant c/s 265 of the Penal Codd Cap. 16 RE 2Q02. On conviction the appellant was sentenced to conditio~al discharge fo~ a period of 1 year hot to commit an offence of that nature! failure of whichi he was to serve a :jail j ' . I sentence of three years. Dissatisfied with the sdntence so passed,: on l I ! 1 05/01/2014 the Director of Publi~ Prosecutions, who is the appell:ant l 1 , herein, lodged the current appeal raising only one g~ound of appeal tha( I I : 1. The learned trial magistrate e~red both in law /and fact by sentending I i the Respondent conditional discharge for the/ offence of Stealin9: by Servant; Contrary to Section 265 and 271 of the I Penal Code, R.E 2002. 1 I • I could delay to issue proceedings for two years on its part alone. That his belief is there was negligence on the part of the DPP which accounts for such delay and that they have a string conviction in their belief that the DPP did not request to be supplied with the same on time. His reason for saying so was because there is no indication that they requested for the proceedings and that DPPs negligence is adversely contributory to the delay in issuing proceedings. Mr. Zaharani argued further that in the face of statutory limitation u/s 379(1)(b) of the CPA, the DPP ought to have acted with the requisite expediency so as to be able to lodge their appeal within the limitations of the law which did not happen. Further that Section 379(1)(b) cannot possibly be a safe haven for DPP to hide under when he acts negligently and he should not seek to benefit from that section. Mr. Zaharani supported his arguments by citing the case of Aidan Chale Vs. republic, TLR 2005 71, where the DPP delayed to lodge an appeal because of negligence and this Honorable Court quite rightly rejected it. He argued that the DPP did not request the proceedings at all because the respondent in this case was not served with a copy thereof and that there is no indication to that effect. Mr. Zaharani prayed that the appeal be dismissed. In his reply, Mr. Kagirwa, submitted that they were served with the copy of the judgment and proceedings along with a covering letter dated 03/12/2015 on the 04/12/2015 which also quoted the notice of intention to appeal. That after receiving the documents they lodged their appeal on the 05/01/2016. He argued that from the day they received the requisite documents to the day that this appeal was lodged, only 31 days had lapsed 3 hence as per Section 379(1)(b) of the CPA the appeal is on time as the computation of time started when they were served with the copies of the proceedings. On the cited case of Aidan Chande (Supra) Mr. Kagirwa distinguished the case from the current case as in the cited case there was negligence of the DPP but in the current case the notice was lodged on time. That subsequently from the time they received copy of the proceedings and judgment and they lodged this current appeal on time. Mr. Kagirwa prayed that the objection be dismissed and hearingof the appeal proceeds on merits. It seems to me both the preliminary points of objection raised are revolving around the provisions of Section 379 (1) (a) & (b) of the Criminal Procedure Act, Cap. 20 R.E 2002 (CPA).To start with the first point of objection on the issue of time limitation, Section 379 (1) (b) is hereby reproduced: S. 379. -(1} Subject to subsection (2)✓ no appeal under section 378 shall be entertained unless the Director of Public Prosecutions or any person acting under his instructions in terms of sections 22 and 23 of the National Prosecutions Service Act (b} has lodged his petition of appeal within forty-five days from the date of such acquittal findin~ 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. 4 The finding of this court is in agreement with the argument adduced by the appellant. Indeed, as per the provisions of Section 379(1)(b) of the CPA, the computation of time to lodge the appeal excludes the period which it has taken for the appellant to be served with a copy of the proceedings and judgment. Therefore for the purpose of this appeal, the computation of the limitation period begun on the 01/12/2015 when the said copy was ready for collection. The gist of the provision goes in line with another pre- requisite under Section 380(1) of the same CPA that: "Every appeal under section 378 shall be made in the form of a petition in writing presented by the Director of Public Prosecutions and shall, unless the High Court otherwise directs, be accompanied by a copy of the proceedings, judgment or order appealed against " The provision makes it impossible, in the absence of a directive to the contrary, for the appellant to lodge the appeal without the necessary documents. Therefore counting the 45 days period provided for u/s 379(1)(b) from the 01/12/2015, the appeal is well within time. On the argument raised by Mr. Zaharani that the two years period taken to obtain the copies of proceeding being too much, Mr. Kagirwa correctly argued that the issue is in the control of the court and not for the DPP to determine. The DPP was waiting for the copies to be ready from the Court ending therefore putting the blame on the appellant will be highly unfair. Having made the above observations, the court finding is that the appeal is 5 within the prescribed time hence the first point of preliminary objection lacks merits and is hereby dismissed. On the second point of objection that the appeal is incompetent for lacking statutory notice of 30 days, Mr. Zaharani contended that the DPP did not issue the 30 days statutory notice as required by Section 379(1)(a) of the CPA. He argued that giving such notice is mandatory and the nature of the notice was defined by this Court in the case of Republic Vs. Hassan s/ o Mkomwa Criminal Appeal No. 110/2004 (unreported) whereby His Lordship Justice Manento JK (as he then was) when dealing with an issue similar to the one at hand held that giving notice of intention to appeal by the DPP includes serving the same to the respondent in time. Further that giving notice does not merely mean lodging it to the subordinate court; it must also be served on the respondent on time. Further that the respondent in this case was not served with the notice of appeal in that context. Mr. Zaharani argued that the Notice of appeal is mandatory and it should be properly given and that this court in its practice has never entertained an appeal if the same is not properly given as explained. Mr. Zaharani further cited the case of Inspector Sadiki Vs. Gerald Nkya, 1979 LRT 290where it was said that failure to serve the respondent with a copy of notice of intention to appeal is equal to not lodging it at all. That in the said case the court did not entertain an appeal for the mere reason that the Attorney General failed or neglected to give a copy of the notice of intention to appeal to the respondent despite the fact that he had given the same to the court. He further cited the case of OPP Vs. A. M. Swai, 1989 TLR 37 where the High Court did not entertain an 6 application for extension of time to file appeal when no notice of intention to appeal had been given. He concluded that since no notice was given to the respondent, then no notice was given at all and he prayed that the court dismiss this appeal on this point as well. In his reply Mr. Kagirwa submitted that the judgment subject to the appeal was delivered on 21/03/2013 and the DPP filed the notice to the court on the 25/03/2013. That as per section 379(1)(a) of the CPA the notice was filedat the subordinate court in those 30 days contemplated hence his ground that no notice was issued to the respondent does not hold water. On the cited case of RVs. Hassan Mkomwa, Mr. Kagirwa argued that the case is distinguishable as in that case, there was no notice filed by the DPP at the subordinate court while in this case the DPP has filed a notice of intention to appeal on the 25/03/2013. Mr. Kagirwa further distinguished the cited case of the DPP Vs. A. M. Swai as the case was dealing with an application for extension of time as distinguished from this case which is an appeal. On my part, I have found it difficult to consider the arguments advanced by Mr. Kagirwa. His argument is that the notice was filed in the trial court on the 25/03/2013, but I have thoroughly gone through the whole record of appeal and there is no such notice. Neither the file of the District Court nor the petition of appeal contains the said notice. This appeal was filed on this court on the 05/01/2016, on the 13/01/2016 the court issued an order calling for lower court records. On the 14/01/2016 saving telegram calling for the record was issued and on the same date the 14/01/2016, the file was brought to this Court. 7 To begin with, the petition of appeal lodged on the 05/01/2016 was only accompanied by a copy of judgment and proceedings of the lower court and no notice was attached to the petition. Furthermore, I have gone through the entire records of the District Court and I have not found not only the notice of appeal, but neither have I found the letter requesting the copies of judgment and proceedings that Mr. Kagirwa argued to have been lodged at the trial court. In the absence of any documentary evidence that the said notice was filed, this court can only draw one conclusion, that no notice of appeal was ever filed by the DPP. The provisions of Section 379 (1) (a) are that: S. 379.-(1) Subject to subsection (2), no appeal under section 378 shall be entertained unless the Director of Public Prosecutions or any person acting under his instructions in terms ofsections 22 and 23 of the National Prosecutions Service Act (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 institute the appeat· (Emphasis is mine) The proviso makes it mandatory that prior to lodging any appeal, a notice of appeal must have been filed at the trial court within thirty days. The simple question here is whether the said notice was filed. The answer is equally simple that there is no any evidence to show that the said notice was so filed. As the requirement of the law is rather mandatory, this court has no other option but to struck out this appeal for being incompetent before this court. 8 Appeal Struck Out. Dated at Arusha this 19thday of August, 2016 MBI 19/08/2016 Court: Ruling is delivered in Court in the presence of Mr. Kagirwa, learned State Attorney representing the appellant and Mr. Issa Mrindoko, learned Counsel holding brief for Mr. Zakaran Kisilwa, learned Counsel for the respondent and the respondent in person this 19th day of August, 2016. 19/08/2016 9 I