19900313 TZCA Arusha

IN· THE COURT. OF APPEAL OF TANZANIA - AT ARUSHA (.£2._RAll: KISANGi\. 1 J oAo, OMAR, J of,,,_,. And MNZAVAS, J oAo) CRIMINAL APPEAL NO. 78 OF 1987 lo ELIAS Mi\CHANGE ) 2., HUSTi\F/\ Si\IO MWANGOBOLE ) ••••• APPELLANTS ·3 a GODFREY MWAKYUSA ) VSRSUS THE REPUBLIC •0•0•0000•00•••0••0•••••RESPONDENT (Appeal from the conviction of· the High Court of Tanzania at Arusha (Chua, J.) dated the 2~th day .of Apr.il, 1988 in Crir.>inal Sessions case No. 1 of 1988 -/,._uL_ING The three appellants wei::-e jointly convicted by the Resident MElgis tr ate' s c:our-t on two counts of unlawful possession.. of offensive weapon and unlawful possession of offensive material; both be;i.ng offences under the National Security Act. They wer.e co-.... itted to.. the High Court for. .•s·entence, and the High C.Qurt duJ,.y sentenced the- to concul'.'r.ent ter-s of 9 and 3 years• i,..,pris•~n.... ent. They a.r.e ··!\ow seek in, to appeal \\ against both the co,-victions and the sentenr:es •. \ When the matter r:a-e before us, only the appellants Elias Mu.change and Godf,:-ey Mwakyusa. appeared. The appellant MUS ta;Ea Saidi Mwangobole was absent, and prison t1,utho,..i ties ' ·-. in;f.ormed the. Court that he had been ,:-elec.sed fro- p,.-ison upon a ~isrepresentation that his appeal had sucr:eeded. The two •••••••• /2 \ .J 2 The two appell2nts who we-e unr~9-esented aGpeared in person while the respondent Republic was repr-<?sented py ''Teo Jo D. Mono, Senior state Attorney. Mr .. Mono ra,i.sed a preliminary obj.ectiori that the ~ppellants i appeal was both misconr.ei ved and .:i..nr:ompeteht in that the appeal against conviction lay, not to this Court, but to the High Court, whereas u,s regar:ds the appeal against sentence the appellants had filed no memoranda of appeal. Mr. Mono's pT:".eliminary objection -is quite justified~ The jurisdiction of this Court is set ou-t: under section 4 (1) of the· Appellate Jurisdiction Act which provides that: 4o-__ (l) The Court of Appeal .•shall have jurisdiction to heal'.' and _.dete.r.mine appeals from the High Court and f.r.o- subordinate Courts with extended juri"sdir.:tio11~ ". (sub-section (2) is not material to the facts of this case.) The <:1ppellants I convir::tions in the instant case wer.e entered by the R2sidcnt i"1agistrate I s court and not by the High Cou".'t or by a subordinate cou".'t exe:rcising extended_ ju.r.isdir::tion. This court there:,fore _has no jur.isdiction over the appellants 1 appeals o.guins t the convir:tion. Although the com~itting magistrate did not say so expressly, it is apparent th 3t h'e comil'ti tted the appellants to the High Court for sentenc~ in pursuance of seetion 171 of the Crit:\inal Proced·..ire Act, the -r:-elevant parts of which provide that:- 11 1,..,,1.- - (1) '·Jh v, er. e .• o o • /3 f ...,• 3 11171 o - ( 1) -where unde,... the provisions of this ,\ct a subordinate court, pr<;>sided over by a District Magistrate r:cnvicts any adult of an offGnce, then, if on obtaiDing informatioD as to thG chrracter anct anteceoents of such adult or 6s to the circuMstances of the offence, the court is of opinion thc>t they are such that gi~cJter puniih~~nt should be inflicted for the offenc~ than.the kourt has power to inflict; the court May, instead of dealing with hi~ in any other ,.,..anner, -com ..... it the offender. in custody to the High court for s·entence in acr:ol'.'dance with • the.following provis.ions of this section. (2) Where an offender is co~mitted to the High Court f~r- sentence under the'proyisions of this section, the High Court shall inquire into the .. circumstances of the case and shall deal with the. offender. in any rnan~er in which he could have · been dealt with by the qigh Court if he had been · convicted by the High'· c·ourt .of the offence in . ques.tiono (3) ··rf thei·Hioh court impos~s a sentence · on th~ offender; . the- pro\;isions of. thi:s Act :with regcJr-d to an·, aopeal. against convj --:tion only shall apply·us for any other case tried by a subordinate court. · · (4) Tne High Court ~ay in i~s disc~etion postpon~ its ~nquiry under the provisions of subs2ction_(2) of this section until the expiration of the time for filing no.ti-r:e of appeal against conviction, nnd if. such noti~e has been filed before the High. Court com~en-:::es such inquir.y until final d.eb~r-in.<;ltion. Qf such appeal or. subsequent appe'21s. or· for such lesser period as the hourt "nay dee~ fi to 11 ~ · · · (The re-ait)ing sub-sections are not ap.pl'ica1'1e to the facts:· ·of .the pl'.'es_ent case~) sub-section ( 3 j . is not v-=ry happily wor.ded, J:;,ut we think thi.lt it SGeks to ·spe_ll out the rrcicedure -.for .appealing . ·agcins·t conviction· where th_e inten?ing appellant was sentenced by the: High Court upon his being co<nmi tted to that cou.r.t for -:.sentence., ·.-.· The sub-sectionoooocoo/4 4 The sub-socticn is saving, in effect, that if the person so sentenc~d wishes to a~peal against his conviction, then such appAo.l sho.11 be governed Ol'." regulated by the pr.ovisions of the Criminul Procedure Act. And the provisions relating to appeals from r.1ngistrates i courts are to be found in section 35, of the Act which suys :- 11359 o - (l) S?ve as hereinaftf:ir pr.ovided, any person aggrieved by any finding;"sentence or ordel'." ~ade or. passe~ by a subordinate court other than a subordinate court ex~rcising its extended powers by Virtue of an order made under. section 1 73 of this 'A,:t 1"1ay appeal to the High Court end such_subordi~ate court shall at the ti~e when such finding, senten~e or order is.· no.de or 'passed' infOl'."r.'l su,:h person of the pe:r:-iod of time within whir:h, if he wish.es to appeal, he is required to give notice of his intention to appeal and to lodge his petition of appeal. (2) Any appeal to the High Court May be on a ~atter of fact GS well 3S on a ~atter. of lciw. 11 c The o.ppellants 1 convi,:tions wer.e entered by a subordinate court, ~nd therefore appeal fro~ such convictions lies to th.e High Court.. We should add here, for. the sake of completeness and clarity, that if the appellants appeal to the High Court against their. convictions, and the High Court dismisses the appeals then they would be entitled, under section 6 (7) (a) of the Appellate JUrisdiction Act, ~o appeal to this Court on point's of law against the disl"'\iss al of their appeo.ls by that court~ However, es it is now, and for the recisons we h0ve given it beco"!\es evident thct the. appellants 1 P-Urported appeals to this Court against r:onviction were gr.ossly ~isconceived, c1nd they ,3re o,:~ordingly struck out~ .... 5 Th0 r~2ding toqether. of sub-sections (2) and (3) of section .. 171 of the _Ct'i~inal P.1'."0-:'.:edure J',ct.. as reproduced 2.bove, n2.k-2s it plain t"iat .. the sentehce i...,posed by ·the High court on c1 person co,.,_,....itted to it for. sentertce is not the subject of appeal to the High court. such sentence is deemed to_ hcve been imposed by the High Court on a_.person tvho"fl it had its elf· convicted, and ther,?fore an appeal f".'o~ surih sentence generc11ly lies to this Court in a!':cordance with the provision~ of section 6(l)(b)(ii) of the Appellate Jurisdicti~n- Acf if such sentence is not one fixed by lawi. Howeve1".'; the right to appeal agc:iinst the senten-:e ir.'lposed by the, High Cburt on 9 per.son co!':'l,..,itte::d to it fo:r: sentence is qualified by section 6(6) of the Appellnte Jurisdiction Act wliich provides that:- " (6) Any pe'l'.'s_on sentenced by the High court in pursuance of the .prqvisions of section · SA of the Cri"!'linLll .Pt'ocedure Code (now section. 171 of _the Criminal procedure Act. reproduced above) may appeal to the court of. Appeal agr1inst the sentence, unless it is __ Qne fixed by law: but -if the High court ir.iposes a sentence which the court which committed the offender had powe1".' to impose, no appeal shall lie against such sentenr:e. 11 0 The sub-section•. is saying th':lt wher<?. the High Courit imposes, on a p2x::son committed to it for sentenc~,- a ~ente~ce which the com~itting court was e~powered to i-pose, then such sentence i~ not appeal3ble to this Courto That is to say the appenl fro..., such sentence lies tc-, -the High Court .1ust like the c.ppenl ngm.ns t the conviction in respr:ct of which the sentence was pnssed. rn the J,.nstan,t case the substantive sentence of 9 yecrs I i."!lprison...,ent i=posed on the appellants WM in excess of the sentencing pow2rs which the convicting .... agistrntc h2d under section 17i (l}(a) of the Criminal 6 . i Under th.:.1):; provision- the coM,.,itt;ing mggistrate had power to ·, impose ·a mo.ximu,-, of· 5 y-efJ.rS' imprison..,en t only for the ·offence in quGs tion, and therefbre, the sentenc:e as meted out by the High court was appealcble to this Court. In other words, the appellants• appec;ils against sentence 2.re properly a matter for r.onsideration and determination by this court. But the only snag is that the appcll211ts have not filed their. gl".'ounds of appeal. This offends against rule 65(1) of the court of Appeal Rules which stipulates that: 11 65., - ( 1) The appel 1 ant shal 1 , within fourteen days after service on him of the record of appeal, lodge a mem·orandum of cppeal, in sextuplicate, with the Registrar 01".' with the deputy r.egistra.r. at the place where thP. appeal is to be .heard.". rt is undisputed thet fourtee~ days have long elapsed since • the appellants wer.e served with copies of th~ record of appeal, but until the day they appeared ½efore us no grounds of appeal hod bGen filed. Then the q~estion is: What is to be done next? sub-rule ( 5) of the same Rule appears to prqvide the answere .3:!hat sub-r.ule says:- 11(5,)_ If no rne-or.andu.., .of appeal is lodged within the prescribed time, the court may dismiss the appeal or may direct th~t it be set down for hearing; but where a~ nppeal, is dismissed under this sub-rule, the appellant, if he ca~ show sufficient cause may apply to the court to ~estore it for hearing.". _Under this sub-rule it is open to .,_us either to dismiss the appeal_ or to direct that.it be set down for hearing. In theooooooo/7 7 • rn the pcculic.1r circumstances cf this case we .. are not inc:lined to opt for the latter course. T~en the .,appellats· appeared before us they intimatt?.d their in ten ti on to pti"'su.e. their. appea"is 2.92.inst convir::tion. rn those c.i.rcumstari~es we think that the better pr.ocedur~ is to defer the appeal against sentence pending the results of the appeals against convictiono For, in the ev~nt their appeals against: convir.t:i._on succeed, then our determining their appeals against sentence ~ow would ho.ve been rendered ..unnecessary~ on the other hand should the High court dismiss their appeals then they can appeal to this court, and the appeals against bot~ conviction and sentence cnn be heard together. We feel strongly that it/is· far "!1ore convenient and desirable the.t way than to hear their · appeals piece meal •. ~~en appearing before us the appellants gave the impression. thc.1t in engaging in this whole abortive exercise, they were ~isled by the High Court Judge who informed the~ that they could appeal to this- court against both conviction and sentencee The record shows that after passing the sentence, the learned High Court judge made the following ind ors emen t: - "Right of appeal explained. 11 • Ordinarily one would construe that to ~ean that he explained to' the appellants the right to appeal against the sentence which he hQd pass~d. He cannot reasonably be taken to have explained to--them the right to appeal against convir.tion which he did not record himself. But upon a •••••• /8 ._Jl 8 • But upon u further look through th~ rP.Cord, what is even ~ora pertincint is that after the Resident Magistrate ha4 ~om~itted the appellants to the High court for sentence, he indorsed on the reco.rd as follows: "Right of appeal to the ·High Court against conviction explained." This is dnted 2 o 11.87 but until the date the High court passed the sentences on the appellants on 29'!4.8~ the appellants h2d not given any notice of appeal against convi~tion. And, as was show~ eArlier, until the 1ate they appeared before us they hud not filed thei,:- grounds of appeal against senten~e; only n6tice 9t appeal had been giyen, which notir:e is dated 0 \. 3 o5 .BB. So thc.t their claim that in mishandling this appeal they were r:tislcd by the High Court 'judge is completely unfounded, and they were themselves entirely to blameo In the result the preliminary sustained. 'J,'he appc2.ls against convir:tion are ~isconceived, And the appeals against_ sentenr.e are dismissed for ].2.clc' of me,..,oranda of eppeal. As the appellants .have intim~tcd their intention to pursue their appea).s a,ains t both cc,nviction and sentence, they are accordingly advised to apply to the High court for leave to file notice or appeal and to 2ppeal out of tiine against conviction. If at the end of the duy their appeals against conviction are dis"!'lissed then they can, as outlined above, in pursuance of section 6(7)(a) of th<:: Appellate .. JU:risdiction Act Appeal to this cou.rt against such dismissal, and in. ter-,.,s of ,...ule 65 ( 5) of the Court of ~ppeal Rules apply to this court to restore their appeals 2gainst senten~e for hP.aring. ,.\, 9 -: If, on the: other hand the !Jigh Court dismisses their appeals c1g2.ins t conviction,. and they feel net inclined to appeul a.gains t such :Usl'!1iss al by .the High Court, they can , still cipply to this Court·, in term~ of rule 65 (5) cited above, to restore their appeals against sentence for hearing. For, in our view t.he right under i:-ule 65 ( 5) of the Rules is ex~rciseGble even where the appellant does not wish to appeal furth2r· to ·this Court against convir:ti on. · . . DATED at ARUSHA this 13th day. of r1arch, 19900 R. H. KISANGA JUSTICE OF .APPE.AL. A •. M. /;,. OMAR JU~TICE or, ./\PPE1".L . N: S. MNZAVAS JUSTICE OF APP-°BAL ( I cerfify that this is a true copy of the original. ~ ( .:J. H. MSOFFE ) SENL. DEPUTY REGIST~AR.