20130613 TZCAMtwara

. ··1,;;.- 1 •· ,j IN THE COURT OF APPEAL OF TANZANIA ATMTWARA (CORAM: MBAROUK, J.A., BWANA, J.A., And MMILLA, J.A.} CRIMINAL APPEAL NO. 105 OF 2013 MWANYA ALLY DADI @ HAMISI MUSSA MTONDOIMA .. .............................. APPELLANT VERSUS THE REPUBLIC ••••••••••••.•••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mtwara} (Mipawa, J.) dated the 11th day of December, 2012 in Criminal Session Case No. 2 of 2012 •••••••••• RULING OF THE COURT 11 & 13th June, 2013 MMILLA, JA.: Criminal Appeal No. 105 of 2013 was instituted by Mwanya Ally Dadi @ Hamisi Mussa Mtondoima with the intention of contesting the judgment of the High Court of Tanzania at Mtwara resulting from Criminal Sessions Case No 2 of 2012. It was slated for hearing on 10.6.2013. Unfortunately, Mr. Renatus Mkude, learned State Attorney for 1 the respondent Republic, filed a notice of preliminary objection premised on three grounds as follows:- 1. The appeal is incompetent before the eyes of law as its Notice of Appeal does not indicate the nature of the offence of which the appellant was convicted by the trial court. 2. The appeal is incompetent before the eyes of law as its Notice bears wrong citation of the law. 3. The appeal is incompetent before the eyes of law as its Notice .does not indicate whether the appellant intends or does not intend to be present during the hearing of the appeal. In the course of hearing the preliminary objection, Mr. Mkude dropped the third ground on account that it was a minor defect, thereby leaving only the first two grounds to be proceeded with. In his submission in support of the first ground, Mr. Mkude contended that the notice of appeal does not indicate the nature of the offence of which the appellant was convicted by the trial court. In his opinion, that omission contravened the provisions of rule 68 (2) of the 2 Tanzania Court of Appeal Rules, 2009 (the Rules). Mr. Mkude added that given that the said rule was not strictly complied with, the notice of appeal was fundamentally defective, thus rendering the appeal incompetent. He concluded the argument that since the notice of appeal institutes the appeal in terms of Rule 68(1) of the Rules, the consequence of such a defect is to strike out the appeal. On his part, while admitting that the notice of appeal did not indicate the nature of the offence of which the appellant was convicted of by the trial court, learned counsel Michael Ngalo who, together with Yuda Thadei Paul advocated for the appellant, advanced two arguments; firstly that because the notice of appeal was prepared and filed by the appellant himself who is a layman, he asked for the Court's absolution. Mr. Ngalo's second argument was that a close look at the notice of appeal would lead anyone to the conclusion that it substantially complied with Form "B" in the Rules. He added that at any rate, the defect is a minor one because it is incapable of causing injustice on the part of the respondent Republic. He invited the Court to invoke the provisions of 3 Rule 2 of the Rules which enjoin the Court to consider the need to achieve substantive justice in the particular case. On the second ground of the preliminary objection, Mr. Mkude submitted that the notice of appeal was defective for failure to cite a proper law in the circumstances of the present case. He contended that this defect too was fundamental. Like his stand in respect of the first ground, Mr. Ngalo admitted regarding the second ground of preliminary objection that the notice of appeal cited a wrong law. He maintained however, that the defect was not fatal, because it is not a legal requirement for a person to cite the law under which he was convicted. At any rate, he said, it is sufficient if the person cited a short title of the relevant law. He relied on section 20 of the Interpretation of Laws Act Cap. 1 of the Revised Edition, 2002. He prayed this Court to dismiss this ground too. To begin with, we subscribe to the view that the notice of appeal which does not indicate the nature of the offence of which the appellant was convicted by the trial court as contended in respect of the first ground of the preliminary objection is defective. This is in terms of the 4 provisions of Rule 68(2) of the Rules which mandatorily requires the appellant, among other things, to state briefly the nature of the acquittal, conviction, sentence, order or finding against which it is desired to appeal. A situation such as the present was encountered in the case of Lazaro Msote Sangulu and others v. Republic, Criminal Appeal No. 134 of 2006, CAT, Dodoma Registry (unreported) in which the subject of discussion was Rule 61 (2) of the Tanzania Court of Appeal Rules, 1979 which is identical to Rule 68 (2) of the current Rules. In that case, it was established that all the notices of appeal did not contain not only the provision relating to the offence with which the appellants were charged as was contemplated by Rule 61(2) of the Rules 1979, but also the sentence. It was held that:- " ... [It] is very clear that a notice of appeal should contain, inter alia, the nature of the offence which the appellant was charged with and the sentence imposed. The sub - rule is couched in mandatory terms. Failure to do so is a fatal irregularity. In 5 ... John Petro v. Republic, Criminal Appeal No. 130 of 2010 {unreported} the Court stated: ''It is now settled law that under the same rule 61(2) it was mandatory for a notice of appeal to state the nature of the conviction, sentence, order or finding of the High Court [ or Resident Magistrate Court with Extended jurisdiction] against which it is desired to appeal. Failure to do so rendered and still renders under the 2009 Rules, the purported appeal incompetent." [Emphasis provided]. See also the case of Daud Mwampamba v. Republic, Criminal Appeal No. 204 Of 2009, CAT, Mbeya Registry in which the case of Majid Goa Vedastus v. Republic, Criminal Appeal No. 268 of 2006, CAT(both unreported) was followed. It was stated in the said case of Majid Goa Vedastus (supra) that:- " ... Under rule 61 (2) of the Court Rules, it is mandatory for the appellant's notice of appeal to state the nature of conviction, sentence, or finding against which he desires to 6 appeal. The Court cannot therefore disregard the anormally in the notice of appeal on record because in terms of rule 61 {1} of the Court Rules a notice of appeal institutes an appeal "[Emphasis provided]. This being the position, it is inescapable to find and hold that because the notice of appeal is fatally defective, and since in terms of sub Rule (1) of Rule 68 of the Rules a notice of appeal institutes the appeal, the instant appeal is incompetent and is liable to be struck out. We recall that Mr. Ngalo pleaded with us to soften the stand in the circumstances of this case because the notice of appeal was prepared and filed by the appellant who is a layman. While admitting that the appellant is indeed a layman, we do, not hesitate to say that we cannot accommodate that request for the simple and obvious reason that the basic intention of the Rules, we think, is to perpetuate certainty and constancy regarding procedure, also to maintain uniformity in their application. So, because Rule 68(2) of the Rules has prescribed what 7 should be indicated, to direct otherwise will be contrary to the clear intention behind its enactment. For that reason, the request is rejected. We now come to the second ground of the preliminary objection. We agree with both counsel for the parties that the notice of appeal cited a wrong law. However, we do not agree with Mr. Ngalo that failure to cite proper law in the circumstances of this case was a minor irregularity. Although we have not come across any previous case which addressed this particular point, we are of the opinion that this is required to be treated in the same way the courts have been treating defects in which a party would cite a wrong law in an endeavour to move the court to grant certain reliefs. In such situations, the Court has often held that the citing of a wrong provision of law is fatal and resulted into striking out the matters before it. We think that the same applies in circumstances such as that facing us here. We hold therefore, that failure to cite the correct law in the notice of appeal is a fatal defect rendering the appeal incompetent, thus liable to be struck out. 8 To sum up the situation, having said that the notice of appeal did not indicate the nature of the offence of which the appellant was convicted by the trial court, also that it suffered another defect of citing a wrong law, the appeal as a whole is incompetent. We accordingly strike it out. DATED at MTWARA this 13th day of June, 2013. M.S.MBAROUK . JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL B. M. K. MMILLA JUSTICE OF APPEAL Z.A.~ DEPUTY REGISTRAR COURT OF APPEAL 9