director of publication prosecutions vs acp abdallah zombe others 2013 tzca 497 8 may 2013

IN THE COURT OF APPEAL OF TANZANIA AT PAR E5 SALAAM fCO RAM : RUTAKANGWA. J,A., MBAROUK. J.A., And MMILA. 3 . A . ) CRIMINAL APPEAL NO. 254 OF 2009 THE DIRECTOR OF PUBLIC PR O SECU TIO N S .................... APPELLANT VERSUS ACP ABDALLAH ZOM BE AND 8 O T H E R S ....................... RESPONDENTS (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) f Massati, J.K.) Dated 17th day of August, 2009 In CRIMINAL SESSIONS CASE NO. 26 OF 2006 RULING OF THE COURT Date 22"' April, & 8"’ May, 2013 RUTAKANGWA, J.A.: The Court of Appeal of the United Republic was established by Article 117(1) of the Constitution of the United Republic of Tanzania of 1977 (the Constitution). The Sub - Article provides as follows: "There shali be a Court of Appeal of the United Republic (to be referred to in short as the "Couri of Appeal") which shall have the jurisdiction of "he Court of Appeal as provided in this Constitution or any other law." The functions, of the Court, as spelt out ir>sub-artic!e (3), "shall be to hear and determine every appeal brought before it arising from the judgment or decision of the High Court or of a magistrate with extended jurisdiction." One of those enabling laws envisaged under sub-article (1) above is the Appellate Jurisdiction Act, Cap 141, R.E. 2002 (the Act). It is provided as follows in section 6-(2) of the Act:- "Where the Director of Public Prosecutions is dissatisfied with any acquittal, sentence or order made or passed by the High Court or by a subordinate court exercising extended powers he may appeal to the Court of Appeal against the acquittal, sentence or order, as the case may be, on any ground of appeal." A similar right of appeal is extended, under s. 6 (1) of the Act, to accused persons and/or appellants (ana under s. 5, to civil litigants) aggrieved by the decisions, orders, etc; of the High Court while exercising its original, appellate and/or revisional jurisdictions. Without prejudice to the above, we want to make it absolutely clear from the outset that these rights of appeal, being creatures of statutes, are not absolute but are "conditional and finite," as the Court held in H.M. Chamzim and 71 others v. Tanzania Breweries Ltd, Civil Appeal No. 67 of 2004 (unreported). These conditions may be spelt out or imposed by the parent statute creating that right or by subsidiary legislations made thereunder. The Act, for instance, imposes a condition of obtaining leave to appeal on a second appeal in civil matters or obtaining a certificate on a point of law, from the High Court only, in all proceedings originating from primary courts. Furthermore, S. 12 of the Act gives powers to the Chief Justice to: "Make rules of Court regulating appeals to the Court of Appeal and other matters incidental to the making, hearing or determinations of those appeals." The Rules made under s. 12 currently in operation are "The Tanzania Court of Appeal Rules, 2009" (the Rules) which became effective on 1/02/2010, replacing the Tanzania Court of Appeal Rules, 1979 (the old Rules). The old Rules (and the Rules as well) circumscribed the rights of appeal to the Court by a number of conditions precedent to be met by parties to an appeal to the Court. One such condition was the compulsory requirement of lodging a notice of appeal, within the prescribed time, by the intending appellant, with the Registrar of the High Court. In respect of criminal appeals, the regulatory provisions are found in Part IV of the old Rules. The requirement to lodge a notice of appeal, was clearly spelt out in Rule 61(1) of the old Rules. The provisions of the Rule, which have been retained in the Rules as Rule 68(1), read thus: "61(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 High Court at the place where the decision against which it is desired to appeal was given, within fourteen days of the date of that decision, and the notice of appeal shall institute the appeal." [Emphasis is ours]. In a plethora of decisions by the Court, since its inception in 1979, jt has been religiously held, consistent with settled law, that where no such notice of appeal is lodged at all or if lodged in the wrong registry, or if lodged out of time, or a defective notice is lodged, there is no competent appeal which is capable of being entertained by the Court. Those purported appeals have always been struck out and more often than not at the instance the Director of Public Prosecutions (D.P.P.) as the respondent. A few recent examples will suffice to bear us out on this. These are:- a) Elia Masena Kachala & Others v. R., Criminal Appeal No. 156 of 2012 dated 8th /3/2013; b) Ikoi Sigaje v. R., Criminal Appeal No. 21 of 2012, dated 11/03/2013, c) D.P.P. v. Boniface Mathias, Criminal Appeal No. 83 of 2012 dated 25/05/2010, d) Daudi Mwambapa v. R. Criminal Appeal No. 204 of 2009, dated 23/06/2011, e) Hilda Andolile v. R., Criminal Appeal No. 203 of 2009, dated 30/06/2011, f) Jo h n Petro v. Rv Criminal Appeal No. 130 of 2010, dated 30/06/2011. 9) R.v. Brown J . Undule & Others Criminal Appeal NO. 257 of 2008, dated 25/8/2011, h) Majid Goa Vedastus v. R., Criminal Appeal No. 268 of 2006, dated 19/2/2011, etc. (ail unreported). In all these appeals, and a host of others, the D.P.P., as respondent therein, has uncompromisingly successfully challenged their competence for want of valid notices of appeal. The impugned notices, for instance, cited wrong names of trial or appellate judges, showed wrong dates and Judgments and orders appealed from, showed wrong titles of courts, cited wrong offences and/or sentences, etc. The matter before us, therefore, was supposed to be an appeal under s. 6(2) of the Act by the D.P.P who was aggrieved by the acquittal, by Massati, J.K. sitting in the High Court at Dar es Salaam, of all the respondents. The respondents were all arraigned in Criminal Sessions Case No. 26 of 2006 for multiple murders of four people at Pande Forest in Dar es Saiaam Region on 14th January, 2006. The trial of the respondents was conducted by Massati, J.K. Before the trial was concluded, he was elevated to the Court of Appeal and became a Justice of Appeal. Given the nature of the case and particularly the stage it had reached, it was found proper to invoke the proviso to article 119 of the Constitution to have the same learned judge complete the trial and render his judgment in the case. This he faithfully did resulting in the acquittal of the respondents on 17th August, 2009, hence this purported appeal. The hearing of this matter was slated for 22nd and 23rd April, 2013. On the first day of hearing, the appellant was represented by Mr. Edwin Kakolaki, Mr. Timon Vitalis, and Mr. Prudence Rweyongeza, all learned Alexander Mzikila, learned advocates. For the respondents, Mr. Richard Rweyongeza, learned advocate, advocated for the 1st respondent; Mr. Majura Magafu, learned advocate, appeared for the 2nd, 3rd 4th, 5th 6th and 7uh respondents and Mr. Dennis Msafiri, learned advocate, represented the 8th and 9th respondents. All of them informed the Court that they were ready for the hearing of the appeal on merit. JlJs^ se ttle d law in our jurisprudence that as far as judicial proceedings are concerned, the issue of jurisdiction is very TRichard Julius Rukambura v. Issack N. Mwakajila and A n o th e r fCATJ Civil Appeal No. 3 of 2004 (unreported)], in the case of Fanuel Mantiri Ng'unda v.Herman M. Ng'unda & Others [CAT] Civil Appeal Mch-8 o f 1995 (unrepoTted)7for instance, the Court held that the:- "....question of jurisdiction is so fundamental that courts must as a matter of practice on the face of it \ be certain and assured of their jurisdictional position at the commencement of the trial../' Providing further emphasis on this issue, the Court in T a n z a n ia . Revenue Authority v. Kotra Co. Ltd, CM! Appeal Nu. 12 of 2CG9 * (unreported), held thus: ’ "We may as well add without any risk of beina contradicted, that what was said in respect of a trial ^ court on this issue applies with equal force to anb appellate court. Before an appeal is determined on ' P the merits on issues not touching on jurisdictions)^ of the court(s) below, it must be certain that the*» proceedings giving rise to the appeal w e re '0 competently before that court or those courts..." ! We should quickly add 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. 9 Incompetence of proceedings takes many forms. It may arise out of chc piocesdings being time barred, being wrongly instituted- u,’o>ng instituted in the wrong court or forum, a competent court being wrongly moved, citing a wrong number of the case in which the challenged decision emanates, etc. For this reason, in the appeal under scrutiny, before hearing counsels' arguments on the merits or otherwise of the appeal, we had to ascertain first whether or not there was a competent appeal before us. Towards this end, we first drew the attention of all counsel to the notice of appeal appearing at page 1508 of the record of appeal. As we hope we have already sufficiently demonstrated, it is a notice of appeal which institutes a criminal appeal in this Court. It is accordingly, a very vital document without which there can be no appeal. We shall elaborate using the few examples alluded to earlier on. In the case of Elia Masena Kachala (supra) the appellants were aggrieved by the decision of a Principal Resident Magistrate exercising Extended Jurisdiction while sitting in the Court of a Resident Magistrate. Exercising their statutory right of appeal, they purported to lodge notices of appeal under Rule 61(1) of rhe oia Rules. Ali me same, cne notices of appeal showed that they were appealing against the judgment of the High Court sitting at Dodoma. The respondent D.P.P. conceded the incompetence of the appeal which was instituted by patently incurably defective notices of appeal, and urged us to strike it out. The Court struck out the purported appeal. The respondent D.P.P. equally successfully challenged the competence of the appeals in Ikoi Sigaje and Daudi Mwambapa (supra), wherein the notices of appeal had cited offences which the appellants had not been convicted of. In John Petro (supra), the appellant's application for extension of time was dismissed by the High Court. Aggrieved, he lodged a notice of appeal showing that he was challenging the dismissal of his appeal against a conviction for defilement. The respondent D.P.P. successfully pressed the Court to strike out the incompetent appeal because "the subject of the notice of appeal" did "not exist at all" In Mohamed Sango and 20 Others v. Rv Criminal Appeal No. 23 of 2012 (unreported) the Court struck out the appeal at the instance of the D.P.P. because the notice of appeal had cited a wrong case number. i] Exercising their statutory right of appeal, they purported to lodge notices of appeal under Rule 61(1) of tne oia Ruies. Ali tne same, tne notices of appeal showed that they were appealing against the judgment of the High Court sitting at Dodoma. The respondent D.P.P. conceded the incompetence of the appeal which was instituted by patently incurably defective notices of appeal, and urged us to strike it out. The Court struck out the purported appeal. The respondent D.P.P. equally successfully challenged the competence of the appeals in Ikoi Sigaje and Daudi Mwambapa (supra), wherein the notices of appeal had cited offences which the appellants had not been convicted of. In John Petro (supra), the appellant's application for extension of time was dismissed by the High Court. Aggrieved, he lodged a notice of appeal showing that he was challenging the dismissal of his appeal against a conviction for defilement. The respondent D.P.P. successfully pressed the Court to strike out the incompetent appeal because "the subject of the notice of appeal" did "not exist at all". In Mohamed Sango and 20 Others v. Rv Criminal Appeal No. 23 of 2012 (unreported) the Court struck out the appeal at the instance of the D.P.P. because the notice of appeal had cited a wrong case number. i] In Majid Goa Vedastus (supra), the appellant was convicted by the trial court of the offence of rape. His appea! to the High Court was dismissed. His notice of appeal to this Court showed that he was appealing against a conviction for "armed robbery". The respondent D.P.P. strongly contended that the said notice of appeal was incurably defective thus rendering the purported appeal incompetent. He successfully urged the Court to strike out the incompetent appeal. In R. v. Brown Undule and Others (supra), the D.P.P. had been aggrieved by the ruling of the High Court judge dated 25th July, 2008. He lodged a notice of appeal which showed that he preferred an appeal against the ruling of the High Court dated 27th July 2008. At the prompting of the Court counsel for the appellant D.P.P and counsel for the respondents, readily conceded that the said notice of appeal was invalid and urged the Court to strike it out which prayer was granted. In D.P.P v. Boniface Mathias (supra) the appellant had lodged the notice of appeal under section 61(2) of the Act instead of Rule 61(1). Relying on the case of Luchalamila Mawanga v. R, Criminal Appeal No. 319 of 2007 (unreported), counsel for the respondent urged the Court to find the notice of appeal incurably defective and strike out the appeal. The learned Senior State Attorney who had appeared to prosecute 12 ?tbe appeal conceded the preliminary objection and the incompetent appeal was struck out. Coming back to the notice of appeal which purported to institute this appeal, as appearing on page 1508, counsel for both sides were at par on the naked fact that it contains a patent error which renders it defective. The said error is that the appellant is appealing against "the decision of the* Honourable Mr. Justice Massati, the Justice of Appeal", sitting in the High Court at Dar es Salaam. The error is repeated twice in the same notice of appeal, hence our prompt request to counsel for both sides to address us on the legal effect of this error as contrary to the unambiguous provisions of article 119 of the Constitution, a Justice of Appeal had apparently sat and determined proceedings in the High Court. While conceding the defect, which he could not avoid anyway, Mr. Vitalis quickly urged us to hold that it was a minor defect amenable to amendment under Rule 111 of the Rules. The said Rule, empowers the Court "at any time to allow amendment of any notice of appeal... on such terms as it thinks fit." When the Court drew his attention to the obvious 13 fact that Rule 111 falls under Part V of the Rules which relates to "appeals in Civil matters", he changed his position and pressed us to grant an amendment under Rule 4(2) (a) of the Rules. When the Court wanted his opinion on why there is no identical provision in part IV dealing with criminal appeals, his snap answer was that it was because in criminal matters unlike in civil appeals it is the court which prepares the records of appeal and supplies them to the parties. To the question on whether or not it is the Court which drafts and lodges the notices of appeal, his answer remained the same. In the light of these answers, we found no good reason to probe him further on the issue. Mr. Magafu, made a brief but focused submission on behalf of his learned friends. To the respondent the undisputed defect in the notice of appeal made it incurably defective and rendered the appeai incompetent on account of lack of a valid notice of appeal. It was his strong submission that this Court, save in cases of a review or reference under Rules 66 and 65 of the Rules, has no jurisdiction to sit on an appeal over a matter heard and determined by itself, i.e. be it by a single Justice or a full Court. He went on to argue forcefully that so long as the notice of appeal shows that the impugned judgment was rendered by a Justice of Appeal, the same is fataiiy aefecrive and cannot be cured by way of amendment even under Rule 4(2) (a) of the Rules, because one cannot amend what does not exist, as there is no notice of appeal to be amended. Although Mr. Vitalis did not invoke Rule 2 of the Rules, Mr. Magafu, very correctly in our considered judgment, argued that the Court cannot rely on this Rule to cure the defect because the "need to achieve substantive Justice" can only be called in aid when the matter being determined is competently before the Court. So, on behalf of his learned colleagues, he pressed us to find and hold that as the appeal, was instituted by an invalid notice of appeal, it is incompetent and it should be struck out. Having read the Rules and considered dispassionately the past decisions of the Court on the issue and counsels7 submissions, we are increasingly of the view that this issue ought not to unnecessarily tax our minds. There is .no dispute that in criminal matters, unlike civil matters where an appeal is instituted with the lodging of a memorandum and record of appeal (Rule 90(1) of the Rules and Rule 76(1) o f the old Rules), an appeal is instituted by lodging a valid notice of appeal in the appropriate High Court registry within 30 days (formerly 14 days) of the date of the impugned decision. In terms of Rule 71(1) (formerly Rule 64 (2)) among the core documents to be incorporated in the record of appeal is a copy of the notice of appeal. An identical requirement is found in Rule 96(1) in respect of a civil appeal record. As we have already shown, in criminal appeals, it is a valid notice of appeal which institutes an appeal in this Court. If the notice of appeal contains fatal errors, it cannot be cured by amendment at all. Being incurably defective, it does not exist, as rightly argued by Mr. Magafu and cannot institute any valid or competent appeal. The law is settled that a non-existing notice of appeal or any document for that matter, cannot be amended: See, for instance, Robert Edward Hawkins and Another v. Patrice R. Mwaigomole, Civil Application No. 109 of 2007 (unreported). All the same, we want to make it clear that even in a civil appeal, not every defect in a notice of appeal is amendable as of right under Rule 111 of the Rules: see, for instance, Director TOS Filling Station v. Ayoub & 9 Others, Civil Appeal No. 30 of 2010 (unreported), where the notice of appeal was struck out for being "wrongly titled". All said, we find the crucial issue here to be whether or not the notice of appeal instituting this appeal is incurably defective. Looking at the challenged notice of appeal we are tempted to answer the above issue in the affirmative. One of the reasons upon which we predicate our affirmative answer is that we have ordinarily no jurisdiction to decide on a matter determined by our colleague (a Justice of Appeal) save in the circumstances alluded to by Mr. Magafu. Such an appeal should be taken to a higher court, if any exists. Two, if indeed the named Justice of Appeal decided that criminal matter in that capacity in the High Court, the aggrieved appellant could not access this Court on an appeal seeking the impeachment of the High Court decision on its merits. He could only seek for its nullification on the ground of want of jurisdiction and seek a re-trial. We are, ali the same, sure that the learned trial judge did not subsequently try and decide the case in his capacity as a "Justice of Appeal", as the notice of appeal erroneously shows. Admittedly, the only judicial officer clothed with jurisdiction to exercise powers in the High Court is a Judge of the High Court appointed under article 109 (1) of the Constitution. A Justice of Appeal is strictly barred under Article 119 from siuing in uhc nign court. The Arricie partly reads; "No Justice o f Appeal shall have jurisdiction to hear any matter in the High Court or in any magistrate's court o f any grade: Provided..." The proviso, in clear permissive terms, allows a High Court judge, elevated to be a Justice of Appeal, to discharge his uncompleted assignments in the High Court. HOWEVER, for this purpose, and here we shall take the liberty of partly quoting from the authentic Kiswahili version Article 119 of the Constitution "Itakuwa halali kwake kutoa hukumu au uamuzi mwingine wowote unaohusika kwa kutumia na kutaja mamlaka aliyoshika kabla ya kuwa Jaji wa Mahakama ya Rufani." (Emphasis is ours). 18 It goes without saying, therefore, that a Justice of Appeal who finds Din';seir sitriny in tne Hiyh court co complete hib unrinisned judicial business, sits there not as a Justice of Appeal, but as a Judge of the High Court pure and simple. The learned trial Judge, therefore, acquitted the respondents in his capacity as Judge of the High Court (Principal Judge, or P.J.) for that matter). It was accordingly a grave error in law for the appellant to lodge in the Court a notice of appeal purporting to institute an appeal against the judgment of "Honourable Mr. Massati, the Justice of Appeal". Such a judgment, we firmly believe, does not exist, and accordingly a notice of appeal in respect of it is incurably defective. The D.P.P. ought to have lodged a notice of appeal indicating clearly that he was instituting an appeal against the judgment of Massati, J.K. (P.J). So far, there is no such notice of appeal before us. That is why the notice of appeal and the memorandum of appeal are at variance. Had this error occurred in the memorandum of appeal we would not have hesitated to allow an amendment of the same. All said and done, we have found ourselves constrained to hold that as long as the notice of appeal on record is purporting to institute an is ppea! against a non-existing judgment, it is incurably defective and Cannot, b defective, we find it incapable of instituting a competent appeal under Rule 61 (1) of the old Rules. In short, we hold that there is no appeal before the Court against the decision of Massati, J.K (P.J.) in Criminal Sessions Case No. 26 of 2006. This purported incompetent appeal is accordingly struck out. The appellant can still access the Court in pursuit of his right subject to the laws on limitation. We so order. DATED at DAR ES SALAAM this 2nd day of May, 2013. E.M.K. RUTAKANGWA o \ JUSTICE OF APPEAL ------------------------- \' B.M.K. MMILA JUSTICE OF APPEAL I certify that this is a true copy of the original . E.Y. MKWIZU DEPUTY REGISTRAR COURT OF APPEAL 20