paulo john muhozya vs abdallah mohamed mpanjinji another 2013 tzca 471 29 july 2013

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM ( CORAM: KIMARO, J.A., MASSATLJ.A., And MANDIA, J.A.l CRIMINAL APPEAL NO. 172 OF 2010 PAUL JOHN MHOZYA.............................................................. APPELLANT

VERSUS 1. ABDALLAH MOHAMED MPANJINJI 2. HASSAN MOHAMED LIGILE.........................................RESPONDENTS (Appeal from the judgment of the High Court of Tanzania at Dar es Salaam) (Juma, 3.) dated the 14th day of December, 2009 in Criminal Appeal No. 108 of 2009

JUDGMENT OF THE COURT 28 June & 29 July, 2013 KIMARO, J.A.: This appeal arises out of an unsuccessful private prosecution of Abdallah Mohamed Mpanjinji, the first respondent, and Hassan Mohamed Ligile, the second respondent. They were privately prosecuted by the appellant for three offences. One, certifying and subsequently circulating i documents with information designed to be prejudicial and harmful to the complainant contrary to section 96 of the Penal Code. Two, inciting commission of an offence contrary to section 390 of the Penal Code and three, being parties to section 22(b) and (c) of the Penal Code for malicious destruction of property contrary to section 326 of the Penal Code. The trial court dismissed all the charges for lack of evidence to prove the offences and for failure by the appellant to obtain consent from the Director of Public Prosecutions for the prosecution of the respondents. The appellant lodged an appeal to the High Court but he was not successful for the same reasons as were given by the trial court. He is now before the Court with thirteen grounds of appeal faulting the decision of the two courts below. During the hearing of the appeal all parties appeared in person. None of them was represented. The Court "suo motW required the appellant to say whether the appeal he filed in the Court was competent. He opted to leave the matter to the determination

of the Court. The respondents on the other hand, also decided to take the same move by leaving the matter to the determination of the Court. The position of the law is that appeals to this Court in criminal cases are governed by section 6 of the Appellate Jurisdiction Act, [CAP 141 R.E.2002]. Section 6(2) of the Act confers " locus stand!' to appealagainst any acquittal, sentence or order passed either by the High Courtor a subordinate court exercising extended powers to the Director of Public Prosecution only. The section reads as follows: "W here the D irector o f Public Prosecution is dissatisfied with any acquittal, sentence o r order m ade o r passed by the High Court o r by a subordinate court exercising extended pow ers he m ay appeal to the Court o f Appeal against the acquittal\ sentence o r order, as the case m ay be, on any ground o f appeal." In an appeal which was filed in this Court in the case of Seif Sharif Hamad V S.M.Z. [1992] T.L.R. 43, the appellant was challenging an order passed by a regional magistrate with extended jurisdiction. In 3 determining the question whether the Court had jurisdiction to entertain the matter, the Court held that: "(iii) our appellate ju risd iction derived from the Appellate Jurisdiction Act, 1979. Section 6 deals with crim inal appeals like this one. Section 6(2) expressly perm its only the D.P.P. to appeal against any order o f

the High Court o r subordinate court in the exercise o f extended Jurisdiction; (iv) The appellant has no rig h t o f appeal. " The appellant in this appeal is not the Director of Public Prosecution. As indicated before, he is appealing against the acquittal of the respondents for offences privately prosecuted by him. In view of the provisions cited above and the case of Seif Shariff Hamad (supra) he has no "locus sta n d i' to file the appeal. The appeal before usis incompetent. We hereby strike it out. It is ordered accordingly. DATED at DAR ES SALAAM this 12th day of July, 2013. N.P.KIMARO

JUSTICE OF APPPEAL S. A. MASSATI

JUSTICE OF APPEAL W. S. MANDIA

JUSTICE OF APPEAL I certify that this is a true copy of the original. [P. M. KENTE)

REGISTRAR

COURT OF APPEAL 5