19960513 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL N0.197 OF 1991 ( ORIGINAL CRIMINAL CASE NO. 214 OF 1990 ) (OF THE DISTRICT COURT OF ILALA DISTRICT AT KIVUKONI) ( BEFORE C. KALOMBOLA ESQ./RESIDENT MAGISTRATE ) 1. SALUM ALLY @ MITUNGI ] APPELLANTS 2. KONDO RAMADHANI @ SHOMVI ] (ORIGINAL ACCUSED) VERSUS THE UNITED REPUBLIC . . . . . RESPONDENT (ORIGINAL PROSECUTOR) KALEGEYA, PRM. One Salum Ally Mitungi and another by the name of Kondo Ramadhani alias Shomvi were charged before Kisutu RM's Court for Robbery with Violence c/s 285 and 286 of the penal code. This was in February 1990. On 12th November 1990'they were convicted and sentenced as charged and each one earned 30 years imprisonment and 5 canes of stroke. In late December 1991 they both presented memos of Appeal which indicated (on each one of them) among others as follows - - Date of Conviction - 12-11-91 Date of copy of judgment applied for June 1991 - Date of copy of judgment received November 1991 - Date memo of the Appeal prepared -November 1991 - Date memo of the.Appeal forwarded-December 1991 In consequence of presentation of their memos of Appeal the High Court Registry opened Criminal Appeal No.197 of 1990. · When this Appeal was set down for hearing Miss Munis for. the Respondent/Republic raised a preliminary objection, which·was resisted by both Mr. Kalolo advocating for Mr. Kondo Ramadhani and Salum on his-own, that this appeal is incornpeten~ as if was filed out of time apart from failure to give notice of appeal within the prescribed period. ,,. - - : 2 : While Mr. Salum simply said, "We applied for copy of of judgement in 1990 when we were convicted but a copy .. was supplied in 1991. In the premises it is not my fault", Mr. Kalolo, learned counsel, attacked Miss Munis's objection on two fronts in the alternative~ At first he argued that notices of Appeal were given orally by Appellants upon convictions and that this was sufficient to cause the court prepare judgment and record of proceedings and that writing through Magereza officials was just a formality. In the alternative he further argued that the proviso to s.361 CPA gives discretionery powers to the court to extend time within which to lodge an appeal and called upon this court to exercise the same in favour of Appellant, especially regard being had to S.359 CPA which seems to have been violated by the court - that the :rec9rd does no_t show that they- we-re- t·ord of their -rig"i-1ts u-nder the section which is mandatory as the word used is "shall." In reply Miss Munisi said that their own documents (memos) clearly show that the application for copies of judgment were made in June, 1991; that notices of Appeal are made in writing, adding that in any case prison officials do explain to convicts the required procedure apart from the fact that record shows that rights of appeal were explained. She concluded by saying that the proviso to s.361 CPA does not apply as there is no good cause shown. Now before going into the factual side of this matter let us direct ourselves as to what the Law says. For an appeal like this one to have a proper base before the court the following should have been complied with, ( i) Appellants should have given notices of their intention to appeal against conviction and I sentence within 10 days of their convictions and sentences (s.361 (a) CPA) (ii) Appellants should have lodged their petitions of Appeal within 45 days of their conviction provided during computation of this period time required to obtain the copy of judgment was excluded (s.361 (b) CPA and 1st proviso), and, in case the appeals were filed out of time, an application to that effect should have been filed and leave obtained at the courts discretion upon sufficiently establishing good cause (s.361 CPA 2nd proviso). AS regards the facts, starting with Notices, as rightly pointed out by Miss Munisi, there is no evidence to show that Notices of Appeal were ever given within the prescribed period (10 days), and indeed apart from the memorundum of appeal there 3 is nothing to show that they were ever given at all. While Salum strongly says that they di.<'.!_____so_ orqlJ_y _ypon __comdction_Lt ----is-no· surprise --that Mr. Kalolo realising this vacuum erected ·a: citadel by calling into aid s.359 CPA that there is no evidence-that the Appellants' rights were explained to·them by· the court as required. It is also no surprise that Magereza officials, contrary to normal procedure, omitted indicating on the relevant memos the dates let alone whether notices of Appeals were ever given. Indeed the way Magereza people treated this Appeal leaves a lot to be desired for as exemplified in para.1 above even on other matters they simply indicated months and not dates! Good mind would ask itself, not without cause, why omit particularity! ___ -~ _H.o_w_e.Y_er ,_wJ1il-e s-t.i-1-1-on-NG-t-i-e-es -0-f--A-ppe-a-l-I-s-hou--l-d---;-m-a:ke- - - observations on two points. First I should state that though at the end of each judgement the court will always write, "Right of Appeal explained" this seems to be so as a matter of routine. The reality may be far from the strict adherance to s.259 (1) which among others requires that, " ... surbodinate courts shall at the time when such finding, sentence or order is made or passed, inform such person of the period of tim~ within which, if he wis_ttes to appeal, he is_ required t.o give notice ;f his intention to appeal and to lodge his petition of Appeai". Mr. Kalolo, Advocate's fears in his alternative submission may not be far fetched. And at the same time Miss Munisi' s argument that a Notice of Appeal should always be given in writing while interesting, desirable and possibly generally applicable is not supported by any provision of the Law. There is nothing to bar an accused from giving sufficiently an oral Notice to Appeal before the court upon conviction. The issue is whether and how often will the court hear and put him on record! A mandatory provision requiring the court to so record in case the accused so indicates would remove arguments such as we are faced with today and assist the process by promptly making the court embark on preparation of copies of judgment and proceedings. That said, on facts presented, I am satisfied beyond doubt that Kondo Ramadhan and Salum Ally Mtungi alias Mchomvu did npt give their Notices of Appeal within the prescribed time limit. Turning to filing their petition of Appeal within 45 days, as indicated above, Magereza officials have complicated the matters raiher than easing the same. Apart from non revelation of dates for reasons best known to themselves, 71 4 these officers have indicated on the memos that judgment were applied_for in June 1991 while in actual fact a letter by Kondo Ramadhani filed in the original court record shows that it was forwarded through them on 11th May 1991 though written 15th March, 1991 and that of Salum was submitted in court by a relative a month after conviction. Be that as it may the copy of judgment for Kondo Ramadhani was dispatched to Ukonga by Kisutu RM's court in June, 1991 and it is deplorably surprising that it took five months to reach Ukonga Prison which is within Dar es Salaam city and which same copy of judgment indicates that it was already typed and duly certified within a month of Appellants' conviction (18/12/90 - same day when Salum's relative applied for a copy). All these doubtful revelations tend to suggest that copies -o-f judgments may have reached the Appe-llants months earlier before they filed their memos but we have no evidence to contradict what is shown on their memos of Appeal. In the end I have but hold that the petitions were filed within the prescribed period of 45 days. Be that as it may the requirements of s.361 (a) and {b) CPA should all be met before an appeal stands as competent before the court. As was held by the High court dealing with similar issue under a an old Criminal Procedure Code (now CPA) but under a Section (s.314) which was the same as the present s.361, in the case of JAMAL MANJI AND COMPANY VS REPUBLIC (1970) HCD 338:- "The compliance required is .. total. A partial compliance, as by giving the notice of Appeal in time but lodging the Petition out of time or vice versa is not enough. A partial compliance creates, at most, an imperfect appeal which .... cannot be entertained." Is there any remedy? Mr. Kalolo for Kondo prayed that this court uses its discretion under the proviso to s.361 (b) CPA while Miss Munisi objected by saying that this is inapplicable as there is no good cause adduced. Indeed for good cause a court can extend time within which to file an appeal and this includes giving Notice of Appeal. Again Jamal Manji case cited above sheds some light, "The proviso .. however provides that the High Court may, for good cause, admit an appeal notwithstanding that the periods of limitation have elapsed, that is to say, restore the right of Appeal and treat an imperfect Appeal as valid and proper appeal or allow a notice of appeal to be given and : 5 : petition of appeal to be lodged out of time, where no steps have been taken by the prospective appellant. When the court has exetcised this power in favour of the an Appellant or prospective appellanC-Tt would them proceed to entertain i t (consider or deal with it) . . . This power to admit an appeal cannot be exercised unless good cause is shown. The good cause has invariably to be shown by the appellant or prospective appellant. He initiates the proceeding by moving or applying to the court to exercise its powers under the proviso .. " In the precent case the matter surfaced upon Respondent's preliminary objection which as I have already held clearly proves that s.361 (a) and (b} CPA were not complied with. Mr. Kalolo, learned Counsel called into play the second proviso to s.361 as an alternative. Did he give good reasons for not ~Gomply-ing.. with~s-.361 CP.A_? He _o_nl_y referred to possible non- compliance with s. 359 ( 1) CPA as already explained. Allin all however, having considered the circumstances sorrounding the way the copies of judgment were applied for; the way the Magereza officials acted on the Appellants memos; the gravity of the offence and sentences met out I am fully satisfied that this is a proper case in which the court has to use its discretion under the proviso to s.361 CPA and let the matter proceed on merits. I should hasten to add that non-compliance with s.361 lies only with subse. (a) (failure to give notice of Appeal within 10 days) otherwise subs. ( b) was complied with I consider this to be an added factor. On the whole therefore while upholding the Respondents objection that indeed the appeal was incompetent before the court when it was being set down for hearing, using this courts' discretion under the proviso to s.361 CPA I hold that it is now competent and valid and should proceed on full hearing. sgd: L. B. Kalegeya PRM with Ext. Jurisdiction 5/5/96 Respo:::~tL~o~y, 1996. Ruling delivered in the presence of Mr. Kalolo (and Appellants) and Miss Mkwawa for PRM with Ext. Jurisdiction 13\5\96