nyamwelu Gabriel

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA CRIMINAL APPEAL NO. 000035789 OF 2024 NYAMWELU S/O GABRIEL .............................. COMPLAINANT / APPELLANT / APPLICANT

VERSUS REPUBLIC .............................. RESPONDENT / DEFENDANT

RULING NKWABI, J 17 & 17/03/2025 The appellant was charged and convicted with the offence of unlawful presence in the United Republic of Tanzania contrary to section 45 (1) (i) and (2) of the Immigration Act, Cap. 54 R.E.

2016. He, along with other persons who pleaded guilty to the charge were sentenced, each, to pay fine of T.shs 500,000/= or in default to pay the fine, serve 12 months imprisonment. It appears he intends to appeal. In this appeal, however, the appellant is Nyamwelu Gabriel, but the notice appeal reads Zebedayo s/o Sanze. Too the petition of appeal reads, in terms of the name of the appellant to be Zebedayo s/o Sanze. Unfortunately, the names of the appellant as entered in the eCMS are of Nyamwelu Gabriel. When the situation came to my attention, I called upon the parties to address me in the following terms: “It appears that the appellant lodged a petition of appeal and a notice of appeal with names of a different person, as such parties have to address me on the competence of the appeal.” The Appellant respondent by saying that the appeal was filed by admission officers at the prison. He left it to the Court to decide. Mr. Masua, learned State Attorney who appeared for the respondent agreed about the oddity and said the appeal is incompetent. He asked the court to strike it out. He added that the Court allows the appellant to refile a fresh appeal. I have considered the submissions of both parties. I agree with Mr. Msua that the appeal is incompetent and has to be struck out from the Court’s register because the appellant filed a notice of appeal and a petition of appeal which

are not in his name, which means they are irrelevant and cannot be acted upon by this Court. For this Page. 1 Hon... JOHN NKWABI Court’s inability to proceed with the matter, I parrot MIC Tanzania Ltd v. Minister for Labour and Youth Development & Another, Civil Appeal No. 103/2004, (CAT), where it was pressed home that: The nothingness of incompetent proceedings was underscored by this Court in the case LEONSI SILAYO NGALAI V HON. JUSTINE ALFRED SALAKAMA AND THE ATTORNEY GENERAL, CIVIL APPEAL NO 38 OF 1996 (unreported) This court said: … The second aspect is whether this Court may adjourn an appeal which is incompetent, in order to allow the appellant to take necessary steps to cure the incompetency. This court has said it before that an incompetent appeal amounts to no appeal. It follows therefore that the court cannot adjourn what it does not have. Under such circumstances, what the court does is to strike the purported appeal off the register (emphasis is ours). So as there was no application before the High Court, according to the ruling of the learned judge, it was an exercise in futility to purport to determine it on the merits. No valid and enforceable orders could be made in application which was not before the High Court. Regarding the prayer by the learned State Attorney that I grant the appellant leave to refile the appeal, I think that is unnecessary. My view is

backed by Ngoni Matengo Co-operative Marketing Union Limited v. Ali Mohamed Osma [1959] E.A. 577 where it was underscored that: “In the present case therefore, when the appeal came before the court, it was incompetent for lack of necessary decree ... this court, accordingly, had no jurisdiction to entertain it, what was before the court being abortive and not properly constituted appeal at all. What this court ought to have done in each case, was to ‘strike out’ the appeal as being incompetent, rather than to have dismissed it; for the latter phrase implies that a competent appeal has been disposed of while the former phrase implies that there was no proper appeal capable of being disposed of.” [Emphasis added]. So, by striking out the appeal, legally, the appellant is at liberty to refile one without the need of the leave of this Court, so issuing an order to that effect is superfluous. To sum up, I strike out the appeal for being incompetent. It is so ordered. Dated at KIGOMA this 17th of March 2025 . J. NKWABI

JUDGE OF THE HIGH COURT Page. 2 Hon... JOHN NKWABI