20091030 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA AT TABORA {CORAM: ,.. KIMARO, J.A., MBAROUK, J.A., And MASSATI,_J,A.) A" CRIMINAL APPEAL NO. 161 OF 2006 NTIRANYABAGIRA F. KUTELEZA@ ROBERT MWAMI ......... APPELLANT VERSUS THE REPUBLIC· ............................................................. RESPONDENT {Appeal from the Judgment of the High Court of Tanzania at Tabora) {Mziray, J.) dated the 26th day of May, 2006 in Criminal Appeal No. 165 of 2003 RULING OF THE COURT 27 October & 2 November 2009 MASSATI, J.A.: When this appeal was called on for hearing the Court, suo motu, invited Mr. Mugaya Mtaki, learned counsel for the Appellant, to address us if in his opinion, there was any valid notice of intention of Kigoma. After searching from the record of appeal he came across a Notice of Appeal, which the Appellant signed on 16th September 2000, a day after th,e delivery of the trial court's judgment, but the / 2 same was filed in the High Court on 16th October 2000, one month thereafter. He immediately conceded that the Notice of Appeal was filed out of time in terms of section 361 (a) of the Criminal Procedure Act (Cap 20 - RE 2002). Despite this discrepancy, Mr. Mtaki urged us to consider, first, that his client was a layman sentenced to a long prison term; second, the case had now reached an advanced stage of appeal in the highest Court of the land; and lastly that since under the proviso to section 361 of the Act, the High Court has power to admit an appeal out of time for good cause, this Court may presume that the first appellant court must have exercised such powers, and rightly entertained the appeal. So he therefore urged us to proceed with the hearing of the appeal in the interests of justice. On the other hand, Mr. Jackson Bulashi, the learned Senior State Attorney who appeared for the Respondent/Republic briefly and succinctly submitted that it would not be proper for this Court to ignore the clear provisions of the law for the sake of this appellant 3 ,.... only; as that would amount to an indiscriminate application of the law. He urged us to find that the Notice of Intention to Appeal was filed out of time, and so the appeals before the High Court and this Court, are incompetent. He prayed that the appeal be struck out. In his rejoinder Mr. Mtaki repeated his prayer for leniency. It is now settled law, that appeals are creatures of statutes, and therefore it is the specific statute which sets out the right and the procedure of instituting such appeals. Under the. Criminal Procedure Act Cap 20 - RE 2002 (''the Act'') appeals are governed by Part X of the Act. The right of appeal is created under section 359 and the procedure is set out in sections 361 to 371. One of the requirements for the institution of an appeal under the law is the giving of a notice of intention to appeal, which is set out in Section 361; which provides: "361. No. appeal from any such finding, sentence or order as aforesaid, shall be entertained unless the appellant:- 4 (a) shall have given notice of intention to appeal within ten days from the date of the finding, sentence or order; or in the case of a sentence of corporal punishment only, within three days of the date of such sentence; and (b) (not applicable). The wording of section 361 (a) is, couched in mandatory terms by using the word "shall". In terms of section 53 (2) of the Interpretation of Laws Act (Cap 1 - RE 2002) the use of the word "shall" means it is obligatory to comply with the command therein. What this means to us, is that if this was not complied with, the right of appeal conferred by section 359 of the Criminal Procedure Act, is lost. It also means that failure to give a written notice of intention to appeal within ten days, deprives the High Court of the power to entertain the appeal. - It is true that the proviso to section 361 of the Act gives power to the High Court to admit an appeal after the lapse of the prescribed 5 period of limitation prescribed in the section. But that can only be done for good cause. The proviso itself reads: "And provided further that the High Court may, for good cause admit an appeal notwithstanding that the period of limitation prescribed by the section has elapsed." So, this power cannot be exercised without good cause. The good cause must be shown by the appellant, who must move the court to do so. But if the court decides to exercise such powers suo motu, it must give the appellant opportunity to show the said good· cause before making the said order. The order must finally form part of the record in the High Court. In the present case, if the High Court exercised its powers under the proviso to section 361 of the Criminal Procedure Act 1985 as Mr. Mtaki tried to convince us, it is not part of the record, and with unfeigned respect to the learned counsel, we cannot act on the presumption that it ·did-so. To do·so, wot1ld be to-invite chaos in-the 6 administration of justice in relation to criminal appeals under the Criminal Procedure Act, if not thereby silently repealing the said provision.· When all is said and done therefore we are of the considered opinion that in the absence of a valid notice of intention to appeal, and in the absence of any record that the High Court was minded to exercise its powers under the proviso to section 361 of the Criminal Procedure Act, the appeal before the High Court was incompetent; from which no appeal could come to this Court. Exercising our powers of revision under section 4 (3) of the Appellate Jurisdiction Act (Cap 141 - RE 2002) we quash the proceedings and judgment of the High Court, and strike out the present appeal. Order accordingly. r • .. 7 DATED at TABORA this 30th day of October, 2009. N.P. KIMARO JUSTICE OF APPEAL M.S. MBAROUK JUSTICE OF APPEAL S.A. MASSATI JUSTICE OF APPEAL I certify that this is a true copy of the original. --~ ( J _;:;;__-M=~~E~l-;;;;-1A==--)- l t DEPUTY REGISTRAR (