19881208 TZCA Dar es Salaam

... j:~·~ . -· ··.··- IN THE COURT OF APPEAL or TANZANIA ( COHAM; N;y:alal i, C.J • , Maka.me, J .A• and Omar, J .A •) I CRIMINAL APPEAL NO. ]40 OF 1988 AND MBASIIA MA1.'URU RESPONDENT (Appeal from the acquittaJ. of the High Court of Tanzania at Mwanza)(MtiNYERA, J.) Dated the 13th day of February, 1988 in .Criffi_inal S~sions Case No. 172 ofJ9]4_ J:UDGEM'ENT OF TIIE COURT NYALALI e C1 J • £ This is an ~"by-the Director -0'f' ?Q.bl:lt> P:1l08eCU.t1cn.g .in. w.b.i.ch. he is challenging. not the outcome of the case in the trial court but 4'b,& ~ u ~ wh.i.ah that ~tcome i~ ~Ged.. In th.a lligh Cour~ i.t. ~ the respondent Mbasha s/o Makuru was acqv.i tted together with another after a full trial for the offence of murder contrary ~o section 196 of t h e ~ ~. 'nl..e. llireo-tor of' PubJi-0 Pro,seoutions, hereinafter oall.ed. the D.P.P., was not aggrieved by the acquittal but by the grounds which the trial . · court acquitted the respondent. Mr. Iifimo, learned Principal S.tate Attorney, appeared for the DoPoP• whereas Mr• Ruga.re,bamu, learu.ed advocate ~eaanted the respondent. The propriety of this appeal was unfortunately not ·ques•tioned at the hearing of the appeal but, on further reflection, it seems to us, that however attractive the submissions made by Mr. Iifimo, we are precluded from dealing with them as the appeal is incompetent for the following rea.sona• It is apparent that this appeal has been brought under the provisions of section 6(2) of the Appellate .Jurisdiction Act, 1979, which reads: J 2 Where the Director of Public Prosecutions is dissa·t:i.sfied 11 with any acquittal, sentence or order made of 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 appeai. 11 • Obviously, aince the D.P.P. is a~pealing neither against an acquittal nor a sentence nor an order, there is no appeaJ. befor~ us-. For purposes of eJl1Jlb,&s:i.$J we are satisfied that on ei. correot construction of section 6{2) of' the Appellate JUl':i,.sdiction Act, the D,P,.P. has no right ot appeal -to us against the manner in which an aoquim.l, sentence or_ order is arrived at. We are th'Ull bound "'yO ~-smis-s I ,. 4hi,r ap~ =id...l,;Q.. ~ - twHad£nef1¥t DATED a-t ~-TAN7.-tA thi; ·et~-, day of Decembe:r:, 1988• I •. I '.' Fa L. NYALALI CIIIEF JUSTICE L. M. MAKA.ME , JUST! CE OJI' APPEAL I certify this is a;tiue copy of tl;le original ,,-l" ~, " (J • H. MSOFPE) / t , \1 ,· I SENIOR DEPUTY REGISTRAR \ \