20160224 TZHC Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM (CORAM: MASSATI.J.A .. ORIYO.J.A .. And MWARIJA. J.A .. ) CRIMINAL APPEAL NO. 16 OF 2012

SALUM MASOUD HALID . ........................................... ; APPELLANT . . , ;; · VERSUS < . J • . TH~E REPUBLIC •••••••••••••••• !.• ••1 ••••••••••••••••••••••••••••• RESPONDENT · • {Appeal from the decision of the High Court o,f Tanzania at Dar es Salaam) · · (Mihayo, J.) Dated 6 th day of September, 2011 in Criminal Appeal No. 2 of 2010

JUDGMENT OF THE COURT 10t11 & 26 th February, 2016 ORIYO, l.A.: This is a third appeal having originated from Criminal Case No. 68 of 2001 in Mlimba Primary Court within Kilombero District, Morogoro. Region, where the appellant was charged with and convicted of armed robbery contrary to sections 285 and 286 of the Penal Code, on his own plea of guilt. Upon conviction, the appellant was sentenced to the statutory minimum sentence of thirty (30) years imprisonment. Being aggrieved, the appellant unsuccessfully launched his . first appeal in the District Court of Kilombero which upheld the conviction and sentence of the trial court. The first appellate court imposed an additional sentence of twelve (12} strokes of the cane. Undaunted, the appellant approached the High Court; sitting at Dar es Salaam for a second bite, in PC Criminal Appeal No. 18 of 2002. This time, his main anchor in faulting the lower courts was that they had erred in not finding his plea was equivocal. The High Court, (Mihayo,J.) was not persuaded. After hearing the parties, the learned judge held that the plea of the appellant at the trial was unequivocal and he proceeded to dismiss the appeal. Still aggrieved, the appellant came to the Court on 14/9/2011 by lodging a Notice of Appeal, in terms of Rule 68 of the Court of j Appeal Rules, 2009, (the Rules). For the sake of clarity, part of the Notice of Appeal is reproduced hereunder:- "IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM CRIMINAL APPEAL NO ............... OF 2011 (In the matter of an Intended appeal) 2 SALUMU _MASOUD HALID ................................................. APPELLANT

VERSUS . . . . THE REPUBLIC. .............................. ;.. ,........................ ,.... RESPONDENT { Appeal from the decision of the High Court of (T) Dar es Salaam in Criminal Appeal i No. 2 of 2010 by Hon. Judge JUMA dated on 7th day of September, 2011 · .J

NOTICE OF APPEAL (Made under rule 68_ of the Court of Appeal Rules 2009 and any Other provision of the of law) TAKE NOTICE THAT APPELLANT intends to appeal to the Court of Appeal of (T) at Da'Salaam against the decision of the Honourable JUMA J. Given on/ dated on 7th day of September 2011 whereby the appellant was convicted of ARMED ROBBERY ................................................................................................. . ... ... ... ....... ..... ... ..... ... ... ... and sentenced to 30 YEARS Imprisonment. The appeal is against both conviction and sentence. The appellant intends to be present at the hearing of the appeal. The address of the service of the appellant is:- C/O Officer in charge, Ukonga Central Prison, P.O. BOX 9091, DAR ES SALAAM. Dated at D' Salaam this on 12th day of September, 2011." The Notice of Appeal on record is glaringly defective because it states that the decision being appealed against is that of Juma, J. in Miscellaneous Criminal Appeal No. 2 of 2010 dated ]th September 2011, which was not the case. The notice of appeal 3 ought to have stated the decision being appealed against being that of Mihayo, J. who dismissed his appeal on 3/5/2005 in Primary Court Criminal Appeal No. 18 of 2002. In our view, we think that the defects in the Notice of Appeal are sufficient to dispose the appeal as it is the notice of appeal which institutes

a criminal appeal in this Court, in terms of Rule 68(1) of the Rules; (See Court's decision in Mgamale Mhede Vs R, Criminal Appeal No. 220 of 2010 (unreported). But for the sake of completeness, this being a third appeal, the law requires that the appellant seeks and obtains a certificate that a point of law is involved, in terms of section 6(7) of the Appellate Jurisdiction Act, which provides as follows:- " (7) Either party - (a)................................ . (b) to proceedings of a criminal nature under head (c) of Part 111 of the Magistrates' Courts Act; may, if the High Court certifies that a point of law is involved, appeal to the Court of Appeal." 4 However, this being a third appeal, it Is a legal requirement, • in terms of section 6 (7) of the Appellate Jurisdiction Act, that it Is accompanied by a certificate of the High Court that a point of law is involved warranting a decision of the Court. The certificate of the High Court in this appeal is missing; thus rendering the appeal incompetently before the Court; See Lameck John and Another Vs Republic, Criminal Appeal No. 115 of 2004 (unreported). In view of the defects in the Notice of Appeal and noncompliance with section 6(7) above, the appeal is incompetent. In the event, it is accordingly struck out. DATED at DAR ES SALAAM this 24th day of February, 2016. I certify that this is a true copy of the original. ~ P. W. BAMPIKYA

SENIOR DEPUTY REGISTRAR

COURT OF APPEAL 5