20100605 TZCA Tabora 1

IN THE COURT OF .APPEAL OF TANZANIA AT TABORA (CORAM: RUTAKANGWA, J.A., MBAROUK, J.A. AND MASSATI, J.A.) CRIMINAL APPEAL NO. 319 OF 2007 LUCHALAMILA MAWANGA .......... L ................................. APPELLANT VERSUS I THE REPUBLIC .......••.•.••..•..•...••.•••..•.••......•.....••••••••••• RESPONDENT I (Appeal from the Ruling of the High Court of Tanzania at l;abora) (Mwita, J.) Dated the 18th day of December, 2006 in Misc. Criminal Application No. 120 of 2004 JUDGMENT OF THE COURT 4 & 7 JUNE, 2010 RUTAKANGWA, J.A.: Article 117(1) of the Constitution of the United Republic of i Tanzania, 1977 (henceforth the Constitution) creates the Court of I Appeal of the United Republic of Tanzania (the Court, hereafter), and I provides that its jurisdiction shall be as "provided in the Constitution or 1 any other law''. It is further provided in sub-articles (2) and (3) that: I . 1. I "(2) The functions of the Court of Appeal shall be to I hear and determine every I appeal brought before it I arising from the judgment or other decision of the High Court or of a magistrate with extended jurisdiction. I (3) A law enacted in accordance with the provisions of this Constitution by Parliament or by the House of i I Representative of Zanzibar may make provisions I stipulating procedure for lodging appeals in the I Court of Appeal, the'. time and grounds for I lodging the appeal and the manner in which I < such appeals shall be dealt with." [Emphasis is I I ours]. I I I . I One such law enacted by: our Parliament is the Appellate I Jurisdiction Act, Cap 141 R.E. 2002' (hereafter, the Act). . I I I The Act was specifically enacted to "provide for Appeals to the I I Court of Appeal" in all Constitutional, criminal and civil matters, either I I with or without leave and/or with ,a certificate on a point law: see, sections 5,6 and 7 of the Act. I I 2 I l I Section 12 of the Act empowers the Chief Justice to:- "... make rules of court regulating appeals to the Court of Appeal and other matters incidental to the making, hearing or determination of those appeals'~ In the exercise of this power, the Chief Justice made the Tanzania ' Court of Appeal Rules, 1979 (hereinafter the Rules) which were revoked by the 2009 Rules published in G.N. No. 368 of 2009 dated th 6 November, 2009. These latter Rules came into operation on 1st February, 2010. I The Rules, in Rule 3(1) (n,ow Rule 4(1)) provided that the practice and procedure in connection with appeals and intended appeals from the High Court was to be as provided in the said Rules. I However, the Court was given . discretion I to direct a departure from them in the interests of justice. Part IV of the Rules dealt with criminal appeals. Rule 61(1) of ' the Rules (now Rule 68 (1) provided that any person who desired to ' ,., . _) appeal to the Court had to give a written notice in writing. Such notice was to be lodged with the Registrar of the High Court where the impugned decision was given within fourteen days. Unlike in civil appeals, it was clearly provided in this sub-rule that such "notice of appeal shall institute the appeal." Equally important was sub-rule 2 (now R 68(2)), which provided as follows:- "Every notice of appeal shall state briefly the nature of the acquittal, conviction, sentence, order, or finding against which it is desired to appeal, and shall contain sufficient address at which any notices or other documents connected with the appeal may be served on the appellant or his advocate, and subject to Rule 14, shall be signed by the appellant or his advocate'~ (Emphasis is ours]. With this exposition of the law governing the jurisdiction of the Court and the mandatory procedure of instituting appeals in the 4 - . ' ' I I Court, we can now safely tackle and provide an answer to the intriguing legal issue posed by this purported appeal. We are using the word ''purportedH deliberately for a reason which shall soon become evident. The appellant was sentenced by the District Court of Nzega District to thirty (30) years imprisonment after it had convicted him of the offence Rape. Aggrieved by the conviction and sentence he resolved_ to appeal to the High Court against both. Apparently, he failed to institute the intended appeal within the time prescribed under section 361 of the Criminar Procedure Act, Cap 20, Vol. I R.E. ' 2002. He accordingly applied for extension of time within which to lodge both the notice of intention to appeal and the petition of appeal out of time. The application for extension of time was dismissed by the High Court at Tabora (Mwita, J.). Dissatisfied with the High Court ruling and order, he wanted to appeal to this Court. ' As already shown above, criminal appeals against decisions of I the High Court in the exercise . of its criminal jurisdiction, are 5 instituted by lodging notices of appeal in the High Court registry ' within the prescribed time. The ~ppellant took steps to institute such ' an appeal against the ruling of t~e High Court, and thereafter lodged his memorandum of appeal. < When the appeal came up for hearing before us, the appellant I appeared in person and was unrepresented. For the respondent j Republic, Mr. Edgar Luoga, learned Senior State Attorney, appeared. I The appellant decided to adopt the three grounds of complaint he I had enumerated in the memorandum of appeal. He had nothing to say in elaboration. i On his part, Mr. Luoga resisted the appeal from two fronts. He challenged its competence as welL as its merits. We heard him first I on the issue of the competence or. otherwise of the appeal before us (which was raised by the Court). He was brief but focused. It was Mr. Luoga's contention that this appeal is patently incompetent. He argued that the appellant is to date yet to lodge an 6 " appeal in the High Court against the conviction for rape entered against him by the trial District Court and the thirty year jail sentence. He pointed out that what was before the High Court (Mwita, J.) was an application for extension of time as already elaborated on earlier. That app'lication, he stressed, was dismissed by the High Court, and if the appellant had any right of appeal tothis Court, that right ought to emanate from Misc. Criminal Application No. 120 of 2004 in which he was seeking extension of time. We were then taken through the appellant's notice of appeal found on page 33 of the record of appeal. In his notice of appeal which is supposed to have instituted this appeal, Mr. Luoga noted, the appellant is not appealing against the decision of the High Court which dismissed his application, but against the conviction for rape. To Mr. Luoga, this notice of appeal, in the light of the clear provisions of Rule 61(2) of the Rules, is incurably defective and renders this purported appeal incompetent. ' He, therefore, urged us to strike out this incompetent appeal. 7 . . The appellant had nothing to say in response. This is understandable, the issue beingi purely a legal one and he is a lay I person. I We have had the chance of perusing the impugned notice of I I - appeal. If the appellant has theI intention of challenging the ruling 1 and order of Mwita, J. dismissing ,his application for extension of time I then it bears out completely Mr. '.Luoga. This notice of appeal does I I not state the real order the appellant was bent on appealing against. I It reads, partly, as follows:- I "TAKE NOTICE THAT LU,CHAMILA s/o MINANGA I appeals to the Court of Appeal of Tanzania against the I decision of the Honourable Mr. Justice D.M. Mwita I given at Tabora on the 1 fh day of December, 2008 I when the Appellant was convicted of RAPE c/s I No. 13 & 131 (sic) as Replaced by section 5 & 6 of SOSPA No/ 4/98 and sentenced to THIRTY (30) YEARS IN JAIL'~ 8 I • - . 1 From our earlier discussion, it must be obvious that this notice of appeal is incurably defective. This is because the High Court (Mwita, J.) never convicted the appellant of any offence, leave alone I Rape, and then sentenced him to thirty years imprisonment, either on 18th December, 2006 or on any other date. There is, therefore, i no notice of appeal before us, against the order of the High Court at Tabora dismissing the appellant's application for extension of time. I I As we have already sufficiently demonstrated in this judgment, a criminal appeal in this Court against any decision, finding, I sentence, order, etc, of the! High Court would have been appropriately instituted under the Rules by the intending appellant duly lodging a notice of app~al which fully complied with the I I mandatory requirements of Rule 61(1) and (2) of the Rules. It was then and only then that the Court would have become seized with jurisdiction conferred upon it by the Constitution and the Act, to ' entertain the appeal. If there was total or substantial non compliance with these provisions, there was no appeal before the I I 9 Court worth determination by it as correctly submitted by Mr. Luoga. This is still the case under the new 2009 Rules. In view of the clear stance of the law, we are constrained to hold, more in sorrow than in feari of offending anybody, that there is no competent appeal by Mr. Luchamila s/o Mawanga against the th I order of Mwita, J. dated 18 December, 2006 in Misc. Criminal Application No. 120 of 2004. Sin'ce there is no appeal before us, we I cannot even invoke the provisio17s of Rule 4 (formally Rule 3), and I /or Rule 47 (formerly Rule 44) to salvage the situation. It would have been a different matter, if we had a competent appeal and the I problem was with the memorandum of appeal, for instance. We ' i have, therefore, no option in the Circumstances, but to strike out this incompetent appeal. I I All said and done, we her~by strike out this abortive appeal. The appellant is at liberty to pursue his intended appeal by applying I' for extension of time to lodge a proper notice of appeal in . I accordance with the prevailing law. If he does so, it is our I I expectation that it will be given the yrgency it deserves. I th DATED at TABORA this 5 dayiof June, 2010. I I I E.M.K. RUTAKANGWA JUSTICE OF APPEAL M.S. MBAROUK JUSTICE OF APPEAL I I I S.A. MASSATI JUSTICE OF APPEAL I I certify that this is a true copy of the original. M.. DEPUTY COURT OFA I 11 I I I I