mt 60850 ex cpl ally mohamed ngombo vs the judge advocate general 2023 tzca 164 30 march 2023

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CRIMINAL APPLICATION NO. 20/01 OF 2021 fCORAM: NDIKA. 3.A.. KITUSI. J.A. And MASHAKA. J.A,) MT. 60850 EX CPL ALLY MOHAMED NG'OMRO.................... ....... APPLICANT VERSUS THE JUDGE ADVOCATE GENERAL ......................................RESPONDENT [Application from the decision of the High Court of Tanzania, Main Registry, at Dar es Salaam] ( Masoud. Kulita, Masabo, 33.) dated the 10th day of March, 2021 in Criminal Appeal No. 04 of 2019 RULING OF THE COURT 22nd & 30th March, 2023 MASHAKA. J.A: The applicant, MT 60850 EX CPL ALLY MOHAMED NG'OMBO was a military man in the service of the Tanzania Peoples Defence Forces who was charged before the General Court Martial with two counts for unlawful possession of bhang and conduct to the prejudice of good order and discipline under section C. 65 (1) and C. 64 (1) respectively of the Code of Service Discipline. He was convicted of the offence on the first count and sentenced to five years imprisonment. While serving his sentence, he said, he realised that he had a right to appeal, hence he preferred the appeal to the Court Martial Appeal Court vide Court Martial Criminal Appeal No. 04 of 2017. The Court Martial Appeal Court, dismissed the appeal for it being filed out of the prescribed time. Undeterred, he sought and obtained extension of time and preferred his appeal by Court Martial Criminal Appeal No. 04 of 2019 which was dismissed for being incompetent. By notice of motion made under rule 65 of the Tanzania Court of Appeal Rules, 2009 (the Rules), the applicant is moving the Court to call for the record of the High Court of Tanzania in Martial Criminal Appeal No. 04 of 2019 to revise the same on the ground that the High Court was wrong to hold that it had no jurisdiction to entertain the above-mentioned appeal. The notice of motion is supported by an affidavit averred by the applicant. An affidavit in reply was averred by Captain Alfred Alexander Hagila, a legal officer in the office of the respondent. Generally, he admitted some of the contents of paragraphs 1, 2, 3, 4, 7 and 8 of the supporting affidavit, while strongly disputing paragraphs 5 and 6. He noted paragraphs 9, 10, 11 and 12 with some qualifications. When the application came up for hearing, Captain S. J. Kassamalu assisted by Lieutenant Mwalibe, represented the respondent and informed the Court that they filed a notice of preliminary objection on the 08th July, 2021 that: - "The application filed by the applicant is defective by the fact that the notice of motion and the supporting affidavit was filed in the wrong court purported to have no jurisdiction to entertain the matter that is contrary to section C. 153 o f the Code o f Service Discipline". Capt. Kassamalu submitted that the applicant lodged his appeal to the Court Martial Appeal Court at Dar Es Salaam in Court Martial Criminal Appeal No. 04 of 2017 and according to paragraphs 7 and 8 of the supporting affidavit it was dismissed for being time barred on 21st July, 2017. However, as averred at paragraphs 9 and 10 of aforesaid affidavit, the applicant lodged Court Martial Criminal Appeal No, 04 of 2019 after being granted extension of time to file an appeal out of time. The appeal court ruled that the appeal was incompetent and struck out. 3 Captain Kassamalu cited to us section C. 153 of the Code of Discipline (the Code) which provides that the Court has no jurisdiction to entertain this application and prayed to the Court to dismiss it. In his reply to the objection, the applicant who was self-represented, emphasized that the Court has jurisdiction to hear and determine his application for revision as he has a constitutional right to access justice. We are alive that this issue has been traversed before on whether the Court is clothed with the jurisdiction to determine matters which have been decided by the Court Martial Appeals Court? The jurisdiction of the Court is derived from the Constitution and or any written law as provided in Article 117 (1) of the Constitution of the United Republic of Tanzania (the Constitution) that: - "117 (1) There shall be a Court o f Appeal o f the United Republic (to be referred to In short as "the Court o f Appeal") which shall have the jurisdiction o f the Court o f Appeal as provided In this Constitution or any other law." It is worth to appreciate the dictates of section C.153 of the Code which provides that: - "Any determination by the Court Martial Appeal Court o f any appeal or other matter which it has power to determine under the provision o f this part shall be final and no appeal shall He from the Court Martial Court to any other Court" Section C. 146 (1) of the Code establishes the Court Martial Appeal Court which is part of the structure of the High Court of Tanzania as under section C. 146 (2) of the Code the judges of the High Court shall be judges of the Court Martial Appeal Court. This provision has been well interpreted in P. 9219 Abdon Edward Rwegasira v. The Judge Advocate General, Criminal Application No. 5 of 2011 (unreported) where we held that: - "We are satisfied that had the Court considered all the relevant circumstances and the relevant law, including the Constitution, the Appellate Jurisdiction Act, the Court of Appeal Rules and the Code, it would not have held that the Court Martial Appeal Court is as good as the High Court sitting in its ordinary jurisdiction and that its proceedings could be revised by this Court under section 4 (3) o f the Appellate Jurisdiction Act. In our view, the Court of Appeal has no jurisdiction to revise the 5 proceedings of the Court Martial Appeal Court unless the respective laws are amended to give it such powers." [Emphasis added] In the light of the above excerpt, we sustain the preliminary objection raised by the respondent. The Court lacks jurisdiction to revise the proceedings of the Court Martial Appeal Court whose decision was final. In the circumstances, we accordingly dismiss the application for revision. DATED at DAR ES SALAAM this 28th day of March, 2023. G. A. M. NDIKA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL The Judgment delivered this 30th day of March, 2023 in the presence of the Applicant vide video link from High Court Dodoma and LT. Beritha Jonas Mwalibe, counsel for the respondent is hereby certified as a true copy of the original.