20130927 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA {CORAM: RUTAKANGWA, J.A., ORIYO, J.A., And KAIJAGE, l.A.) CRIMINAL APPEAL NO. 18 OF 2010 KASSIM FADHILI TANUNU ..........................................................APPELLANT VERSUS THE REPUBLIC ......................................................................... RESPONDENT {Appeal from the decision of the High Court of Tanzania at Mwanza) {Sumari, J.) Dated 25 th day of February, 2009 in Criminal Application No. 75 of 2006 JUDGMENT OF THE COURT 24th & 27 th September, 2013 RUTAKANGWA, J.A.: The appellant and two others were arraigned for the offen~e of Robbery with violence in the District Court of Musoma District. At the end of the trial he, alone, was convicted as charged and sentenced to fifteen (15) years imprisonment. His appeal to the High Court was dismissed by Mlay, J. in his absence on 30 th April, 2003. As the law stood then, he had to lodge a notice of appeal to this Court within fourteen days of the High Court decision. Since the judgment was delivered in his absence, he failed 1 I, to do so. It was in 2006, when he lodged Misc. Criminal Application No. 75 of 2006 in the High Court at Mwanza (the Application), seeking extension of time within which to lodge the notice of appeal to the Court out of time. The application was by Chamber Summons, under Rule 44 of the then Tanzania Court of Appeal Rules, 1979 (the Rules). The application was resisted by the respondent Republic. In its ruling dated 25 th February, 2009, the High Court (Sumari, J.) found the application totally wanting in merit. It was accordingly dismissed. Against that ruling, the appellant has lodged this appeal. At the hearing of the appeal, the appellant appeared before us in person, fending for himself. The respondent Republic was represented by Ms. Revina Tibilengwa, learned State Attorney. The appellant adopted his grounds of appeal and had nothing to say in elaboration. Ms. Tibilengwa, resisted the appeal. All the same, the Court had to intervene before she submitted at length on the demerits of the appeal. We had to do so because we believed that the appellant had no 2 right of appeal against the ruling of the High Court dismissing his application. After directing ·her attention to section 11 (1) of the Appellate Jurisdiction Act, Cap. 141 (the Act), Ms. Tibilengwa changed her approach, in her response to the appellant's grievances. She confidently submitted that the appellant's remedy lay under the Rules. He had to come to this Court by way of a second bite and not through the appellate avenue. She accordingly urged us to strike out the appeal on account of being misconceived and incompetent. We agree and under normal circumstances we would have done so without much ado (See, Braiton Sospeter & Two Others v. R., Criminal Appeal Nos. 358, 359 and 360 of 2009 (unreported)). Unfortunately, our reading of the record of appeal has led us to the discovery of another irregularity in the proceedings before the High Court. As alluded to earlier on, the application in the High Court was predicated on Rule 44 of the Rules. When this fact was brought to the attention of Ms. Tibilengwa, she argued that the High Court had been 3 wrongly moved. It was her contention that the appellant ought to have proceeded under s. 11 ( 1) of the Act. It is the only provision of law which clothes the High Court with jurisdiction to grant extension of time to lodge a notice of appeal out of time to this Court, she stressed. Again, we entirely agree with her. In our respectful opinion, the High Court wrongly entertained the appellant's application brought by "chamber summons" under Rule 44 of the Rules. In fact that Rule never conferred any power even to this Court to grant the relief sought. The relevant Rule then was Rule 8 (now Rule 10). Since the High Court had been wrongly moved, the application was incompetent and the proceedings therein a nullity. The application ought to have been struck out instead of being determined on merit. In the exercise of our revisional powers under section 4 (2) of the·Act, we quash and set aside the proceedings in the High Court and the ruling dated 25 th February, 2009. In the absence of valid proceedings in the High Court, the appellant cannot credibly claim to have either a right of appeal or a right to a second 4 bite to this Court. This purported appeal is, therefore, declared to be totally incompetent on the basis of the grounds stated above. It is accordingly struck out. The appellant may file a fresh application in the High Court under s. 11 (1) of the Act. It is so ordered.· DATED at MWANZA this 2ih day of September, 2013. E. M. K. RUTAKANGWA JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL S. S. KAIJAGE JUSTICE OF APPEAL I certify that this is a true copy of the original. PAampikya SENIOR DEPUTY REGISTRAR COURT OF APPEAL 5