mt 60850 ex cpl ally mohamed ngombo vs the judge advocate general 2021 tzhc 2618 10 march 2021

IN THE HIGH COURT OF TANZANIA (MAIN REGISTRY) AT PAR ES SALAAM COURT MARTIAL CRIMINAL APPEAL NO. 04 OF 2019 MT 60850 EX CPL ALLY MOHAMED NG'OMBO........... APPELLANT VERSUS THE JUDGE ADVOCATE GENERAL..........................RESPONDENT RULING 17/02/2021 & 10/03/2021 Masoud, J. There was before us an appeal against the decision of the General Court Martial of 29/08/2012 which sat at Magadu Mazao KJ. The notice of appeal was signed by the appellant on 28/10/2019. There is however no indication as to when the said notice of appeal was accordingly filed and delivered to the Office of the Judge Advocate General. The statement of appeal was delivered to the Judge Advocate General on 30/06/2020. This is evident from the copy of the statement of appeal which is on the record. i There is on the record an order of this court of 21/7/2017 dismissing an earlier appeal (i.e Court Martial Criminal Appeal No. 4 of 2017) by the appellant against the respondent. The order is evident that there was a previous appeal which preceded the present one. It was also apparent that the order was meted out following an objection raised by the respondent and conceded by the appellant. It is further evident that the present and the previous appeal originated from the decision of the General Court Martial of 29/08/2012 which sat at Magadu Mazao KJ. In the said decision, the appellant was found guilty of unlawful possession of bhang contrary to section 12(d) of the Drugs and Prevention of illicit Trafficking in Drugs Act, cap. 95 R.E 2002 and was sentenced to serve a jail term of five (5) years. There is also on the record a ruling of this court in Misc. Court Martial Application No. 01 of 2019, which was delivered on 22/10/2019. The ruling evidences that the appellant was granted extension of time to file notice of appeal. The said notice of appeal was to be filed within the time prescribed by law as from the date of the ruling (i.e 22/10/2019). 2 The respondent raised two points of preliminary objection against the appeal. The first was to the effect that the appellant was time barred as it was filed hopelessly out of time on 30/06/2020 whilst the extension of time was granted on 22/10/2019. The second point was that this court does not have jurisdiction conferred by the law to entertain matters of severity of sentence passed by the court martial. Section C. 143(1) of the Code of Service Discipline was in this respect relied upon. When this matter was called on for hearing, this court directed the parties to specifically address it on the fate of this appeal. The direction was due to, firstly, the presence of the order of this court of 21/07/2017 dismissing a previous appeal by the appellant against the respondent and secondly, the extension of time granted after the dismissal order of 21/07/2017 without there being any record that the dismissal order had been reversed or set aside. In other words, this court wanted the parties to address the issue whether this court has jurisdiction in the circumstances to entertain the present appeal. The parties were asked to address the court on the above issue by way of filing written submissions. 3 The respondent pointed out that this court is by virtue of section C. 146(1) of the Code of Service (first schedule to the National Defence Act) a court martial appeal court which hears and determines all appeals from decisions of all courts in Military Justice System. He also brought to our attention section C.153 of the Code which is apparent that any deliberation by this court of any appeal or other matter which it has power to determine is final and no appeal would lie to any other court. The respondent relied on Judge Advocate General vs P.9219 LT Abadon Edward Rwegasira, Criminal Revision No. 3 of 2010 (unreported) in which the Court of Appeal held that a decision of the court martial appeal court is final and no appeal lies from the court martial appeal court to any other court. The respondent invoked the dismissal order of this court of 21/07/2017 saying that it was the final decision from which an appeal could not lie to any other court. As to consequences of a dismissal order, he argued that it is settled position that once a matter is dismissed, one can not refile or re-open it in the same court. The only remedy that an aggrieved party may have is to appeal against the dismissal order if such room is available. However, it was argued that section C.153 of the Code does 4 not provide room for such an appeal to be preferred. Therefore, it was further argued that this court does not have jurisdiction to determine the matter again. It is functus officio. The appellant disputed the respondent's objections and submissions. He argued that it was not true that the appeal was filed on 30/6/2020. As the appeal was prepared on 19/12/2019, it was in his view evident that it was not filed on 30/06/2019. He urged the court to dismiss the objection for lack of merit. He did not say anything as to the statement of appeal which was lodged to the respondent on 30/06/2019. He further contended that the court is not functus officio to entertain the present appeal as the previous appeal was dismissed only because it was filed out of time. In so far as the order was in respect of a preliminary point of objection raised, the appeal was not finally and conclusively determined on merit. The only remedy available to the appellant was to apply for extension of time as he rightly did in Misc Court Martial Criminal Application No. 1 of 2019 of this court. The court was told that at all such time the respondent was aware of the application for extension of time to file the present appeal. In his further argument, the appellant had it that section C.153 of the Code does not apply to this 5 matter as in the present appeal the appellant is appealing against the decision of the General Court Martial and not a decision of this court. As the appellant was also granted extension of time to appeal out of time, there was thus a proper appeal to be determined. We carefully considered the rival submissions in the light of the issue which we set out herein above. In so doing we considered the consequences of a dismissal order resulting from filing an appeal out of time without leave of this court, and an extension of time for filing notice of appeal out of time sought and granted after the dismissal order. We noted that there was no dispute about the existence of a dismissal order dismissing the appeal by the appellant in Court Martial Criminal Appeal No. 4 of 2017 on 21/7/2017. For want of clarity the order reads: IN THE COURT MARTIAL APPEAL COURT ATDAR ESSALAAM (Coram: Wambali, JKf Kihio J., and Khaday J.) COURT MARTIAL CRIMINAL APPEAL NO. 04 OF 2017 MT 60850 EX CPL ALL Y MOHAMED NG'OMBO... APPELLANT VERSUS THE JUDGE ADVOCA TE GENERAL.... RESPONDENT ORDER 6 As the appeal is out of time as conceded by the appellant and supported by the counsel for the respondent, the first preliminary objection is sustained\ It follows that the appeal cannot be withdrawn as prayed by the appellant. In the event, the appeal is dismissed for being time barred. We so order. F.K.L Wambali Jaji Kiongozzi 21.7.2017 S.S.S Kihio JUDGE 21.7.2017 P.B. Khaday JUDGE 21.7.2017 There was also no dispute that the appeal was dismissed for being filed out of time without leave of the court. It is further not disputed that the once the appeal was dismissed on 21/07/2017 by this court, the appellant sought and obtained leave to file notice of appeal out of time within the time prescribed by the law. The appellant argues that since the appeal was not heard and determined on merit, he is entitled to reinstitute the same having obtained the extension of time to file notice of appeal. We have examined the ruling which granted the extension of time. There was no reference made whatsoever on the existence of the dismissal order before the extension was granted. The court therefore did not consider the application for extension of time in relation to the existence of the dismissal order. We think that had the dismissal order been brought to the attention of the court, the leave to file another appeal on the same matter involving the same parties would not have been granted. We say so because there was no record shown that the said dismissal order was reversed or set aside by this court. The absence of such record meant that the appellant is barred from reinstituting another appeal on the same matter. Equally, this court has no jurisdiction to entertain this appeal because of the existence of the dismissal order dismissing the previous appeal. We agree with the respondent that once an appeal is dismissed for being filed out of time, one can not circumvent the order by seeking extension of time to appeal against the same decision whose appeal was dismissed for being preferred out of time. Unless the dismissal order of Court 8 Martial Criminal Appeal No. 4 of 2017 given on 21.7. 2017 is reversed or set aside, a fresh appeal cannot lie against the decision of the General Court Marshal of 29/08/2012 in which the appellant herein was convicted and sentenced. Thus, as long as the dismissal order is still in force, the extension of time granted in Misc. Court Martial Application No. 01 of 2019 on 22/10/2019 and during the subsistence of the dismissal order cannot rescue the situation and render this appeal competent. We are thus constrained by the dismissal order which is still subsisting not to entertain the appeal. In the upshot, and for reasons discussed, the appeal is incompetent before the court. It is accordingly struck out. Ordered accordingly. Dated at Dar es Salaam this 10th day of March 2021. S. M. Kulita Judge J.L. Masabo Judge 9