20090519 TZCA Mwanza2

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: NSEKELA. J.A .• KILEO. J.A. And MASSATI. J.A.) CRIMINAL APPEAL NO. 145 OF 2005 MBUSIRO MWITA NYANTONDO ......................................... APPELLANT VERSUS THE REPUBLIC ............................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mwanza) (Masanche. J.) dated the 14th day of December, 2004 in HC Criminal Appeal No. 207 of 2002 RULING OF THE COURT 14 & 22 May, 2009 NSEKELA. J.A.: This appeal was scheduled for hearing on the 14.5.2009. However on the 12.5.2009, the learned State Attorney for the respondent Republic, filed a Notice of Preliminary Objection challenging the competency of the notice of appeal on the ground that it was filed out of time. When the appeal was called on for hearing, we allowed Mr. Lu~osi, learned State Attorney to present his case on the preliminary / 2 objection. The learned State Attorney submitted that the decision of the High Court (Masanche, J.) being appealed against was delivered on the 14.12.2005. However, the notice of appeal was filed on the 15.3.2005 in contravention of Rule 61 (1) of the Court of Appeal Rules (the Rules). This was over three months late. Consequently the appeal before the Court was incompetent and should be struck out. On his part, the appellant Mbusiro Mwita Nyantondo, who J appeared in person and unrepresented, submitted that he was not present on the 14.12.2005 when the High Court delivered its decision against him. He became aware of the decision on the 7.3.2005 when he received a letter through the Prisons, Butimba where he was serving his prison sentence. On becoming aware of this decision, he took steps and filed the notice of appeal on the 15.3.2005. The impugned notice of appeal reads in part as follows - \ .- 3 ''MBUSIRO MW/TA NYANTONDO... APPELLANT versus THE REPUBLIC ........................ RESPONDENT NOTICE OF APPEAL Take Notice that Mbusiro Mwita Nyantondo intends to appeal to TCA · against that total decision held by the High Court on 15.12.2004 where the appeal was dismissed and the sentenced of (sic) 15 years enhanced to 30 years imprisonment. THE APPELLANT HAS BEEN INFORMED ON 7.3.3005 (sic) for the judgment was delivered on his absentia. The appeal is against both conviction and sentence. WHEREFORE: The appellant wishes to attend in person during the hearing of this appeal. CERTIFICATION. I do certify that what has been stated above is the appellant's wishes and decision. THEO 1/C BUT/MBA PRISON Presented for filing this 15h March 2005 District Registrar. " 4 This is the notice of appeal, the subject matter of this preliminary objection before us. It is evident from the record that the decision of the High Court was delivered on the 14.12.2004 in the absence of the appellant. Under normal circumstances, if the appellant was present when the decision was delivered, this would have attracted Rule 61 (1) of the Rules. Since the appellant was serving his sentence in prison, then Rule 68 came into play. It provides as under - "68 (1) If the appellant is in prison/ he shall be deemed to have complied with the requirements of Rules 61/ 65, 66 and 67 or any of them if he gives to the officer-in- charge of the prison in which he is serving sentence a written notice of his intention to appeal and the particulars required to be included in the memorandum of appeal or statement, pursuant to the provisions of those Rules. (2) In any such case/ in computing the time limited for lodging such notice/ memorandum or statement, there shall be excluded- ' . ,, . 5 (a) the time between the appellant's conviction and his arrival at the prison to which he was committed/ and (b) the time between the giving of the notice, memorandum or statement to the officer-in-charge of prison and its lodging by him with the Registrar or deputy registrar, as the case may be. (3) An officer-in-charge of a prison receiving a notice, memorandum or statement under this Rule, shall forthwith endorse them with the ate and time of receipt, and shall forward them to the registrar of the High Court or the Registrar or deputy registrar as the case may be." With respect, we appreciate that there is no prescribed Form made under Rule 68 of the Rules. This Rule is specifically meant to cater for appellants who are in prison, like the appellant herein. Under Rule 68 (1) the appellant should give to the officer-in-charge of the prison he is serving a written notice of his intention to appeal. The first question we ask ourselves, when did the appellant give his notice of appeal to the officer-in-charge of the prison at Butimba? ' . ,.. . t 6 This should be self-evident in the notice of appeal. The appellant has alleged that he became aware of the decision on the 7.3.2005 but when did he give his notice of appeal to the prison officials? The second question we ask ourselves is, when did the officer-in-charge of the prison receive the notice of appeal and endorse it as required for onward transmission to the Registrar of the High Court? The disputed notice of appeal does not answer these questions. This information must be reflected in the notice of appeal. The time taken in complying with Rule 68 (1) and (3) is to be excluded for the purposes of computing the limitation period under Rule 68 (2) (b). In the premises, with respect, we agree with the learned State Attorney that the notice of appeal filed on the 15.12.2004 was out of time in terms of Rule 61 (1) read in conjunction with Rule 68 (1); (2) and (3) of the Court of Appeal Rules. We accordingly strike it out. It is so ordered. . ' I ., " . 7 DATED at MWANZA this 19th day of May, 2009. (.,,.r· --- H. R. NSEKELA . JUSTICE OF APPEAL /~ 10 u \t) E. A. KILEO 1,. JUSTICE OF APPEAL -~w "( . -;;;;;;..,o-- S. A. L. MASSATI JUSTICE OF APPEAL I certify that this is a true copy of the original. 1,-. (P.A. YIMO) DEPUTY R GISTRAR , I I \j 1: 1,\ _,,.: . t··• ~h ~~J~ ·.•ji: .. 'i .,_ .,-i,,ol.-· ='· I :,~~-~,.:,("" q :J .