20120518 TZCA Arusha

IN THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: NSEKELA. J.A.• LUANDA, J.A., And MASSATI, J.A.) CRIMINAL APPEAL NO. 69 OF 2010 1. KASSIM SAID J__ · ~: f~~E~M~~tHJ ........................................; ................ APPELLANTS VERSUS THE REPUBLIC ............................................................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Arusha) (Msoffe. J.) dated the 24th day of February, 2004 in Criminal Appeal No. 76 of 2003 RULING OF THE COURT 15 & 21May 2012 LUANDA, J.A.: Before the hearing of the appeal, the Court wished to know whether the Notices of Appeal of the above named appellants were proper. We posed that question because on 13/5/2009 the Court struck out their appeal vide Criminal Appeal No. 84 of 2004 (Msoffe, J as he then was) for want of proper Notice of Appeal. The Notice of Appeal was neither stamped nor dated by the District Registrar of the High Court of Tanzania, Arusha Registry. That omission went 2 contrary to the mandatory provisions of Rule 61(1) of the then Court of Appeal Rules, 1979. So the appellants had to start afresh by seeking for an extension of time in the High Court to lodge their Notices of Appeal out of time. The appellants complied with that advice, they accordingly lodged their applications in the High Court where on 17/2/2010 Samba, J. granted their prayers. Indeed on 3/3/2010 the appellants separately lodged their Notices of Appeal. The Notices of Appeal indicate that they are intending to challenge the decision of Samba, J. dated 17/2/2010. We were wondering whether really the appellants are intending to challenge the decision of Samba, J. which granted them extension of time to file their Notices of Appeal out of time ! Samba, J. granted them extension of time to file their Notice of Appeal so as to challenge the decision of Msoffe, J. (as he then was). Ms. Javelin Rugaihuruza learned Senior State Attorney informed us that, that can not be. She agreed with the Court's observation 3 and prayed the appeal to be struck out f~r want of valid Notices of Appeal. The appellants on the other hand had nothing useful to contribute on the legal issue raised. They prayed their appeal be heard. Rule 68(1) and (2) of the current Court of Appeal Rules, 2009 reads:- 68 (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 thirty days of the date of that decision, and the notice of appeal shall institute the appeal. (2) Every notice of appeal shall state briefly the nature of the acquittal sentence, order or· finding against 4 which it is desired to appeal, and shall contain full and sufficient address at which any notices or other documents connected with the appeal may be served on the appellant or his advocate anct subject to Rule 17 shall be signed by the appellant or his advocate. The above Rule is couched in mandatory terms. The Rule must be complied. So, if one intends to appeal to this Court against the decision of the High Court, then he must, inter alia, state clearly the decision he intends to challenge. Failure to do so will render the notice of appeal defective and hence the appeal lodged thereof will be declared incompetent. In that respect a notice of appeal is a vital document for the lodgment of an appeal. In our case, the decision which the appellants intended to challenge is that of Msoffe, J. (as he then was). But the Notices of Appeal make reference to the decision of Samba, J. The Notices of Appeal are defective. Since a Notice of Appeal institute an appeal, the appeal is incompetent. The same is struck out The appellants are at liberty to start afresh if they wish by filing another application 5 for extension of time to enable them file their notices of appeal out of time. It is so ordered. DATED at ARUSHA this 18th day of May, 2012. H. R. NSEKELA JUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL · is a true copy of the original. 'I: 10 \\) ~\ '"'i,. ~ 'O( ~ _. ( .A. DEPUTY ! / COURTOF