salumu chalamanda athuman chala another v the republic 2023 tzhc 18241 31 may 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SONGEA DISTRICT REGISTRY) AT SONGEA DC. CRIMINAL APPEAL NO. 14 OF 2023 (Originating from Tunduru District Court in Criminal Case No. 21 of2022) SALUMU CHALAMANDA ATHUMAN @ CHALA............. .......... . 1st APPELLANT ALLY RASHID HASSAN ............. ........................ ..................... 2nd APPELLANT VERSUS THE REPUBLIC ....... ............................... RESPONDENT RULING Date of Last Order: 18/04/2023 Date of Ruling: 31/05/2023 U. E. Madeha, J. First and foremost, the Appellants; Salum Chalamanda Athumani @ Cha la and Ally Rashid Hassan, on the 2nci day of January, 2023 were convicted by the District Court of Tunduru (Chuvaka-SRM) for the offence of cattle theft contrary to section 268 (1) and (3) of the Penal Code (Cap. 16, R. E. 2019). They were sentenced to serve five years imprisonment. On 9th February, 2023, they filed a notice of intention to appeal and i proceeded to filed this appeal. It is worth considering that, before the hearing of the appeal, the State's Attorney representing the Republic raised the Preliminary Objection that the notices of intention to appeal filed by the Appellants were filed out of time. At the hearing of the preliminary objection, the Appellants had no representation, whereas the Respondent was represented by none other than; Mr. Frank Chonja and Ms. Lucia Bukuku, the State's Attorneys who joined forces to represent the Republic. It is worth considering the fact that, arguing in support of the preliminary objection, Ms. Lucia Bukuku submitted that the appeal before this Court is incompetent for the reason that the notice of appeal was filed out of time. She emphasized that all appeals from the Subordinate Courts to the High Court are directed and governed by the Criminal Procedure Act (Cap. 20, R. E. 2022) and pursuant to section 360 (1) (a) of the Act, the Appellants were supposed to file his notice of intention to file an appeal within ten days from the date of judgment. Ms.Lucia Bukuku, the learned State Attorney added that the Appellants were late in filing the notice of intention to appeal for three solid days, which was contrary to section 361 (1) (a) of the Criminal Procedure z Act, (supra). To cement her arguments, she cited with approval the case of Hussein Ramadhan Beka v. Republic, Criminal Appeal No. 349 of 2016, Court of Appeal of Tanzania at Mwanza, in which the Court stated that a notice of intention to appeal filed out of time made an appeal to be struck out for the reason that it was accompanied by any incompetent notice of appeal. She emphasized that in this appeal it is in records that the judgment was read on 2nd January, 2023 and the notice of intention to appeal was filed at Tunduru District Court on 9th February, 2023 which was thirty-three days from the date of judgment. She added that the notice of intention to appeal was filed out of time and contrary to the law and she prayed for this appeal to be struck out. In fact, the Appellants in their reply submitted that they know that they filed their notices of intention to appeal on time. Moreover, they stated that the Prison Officers are the one who prepared the notice and filed it in Court and they are surprised to find that the notices were filed out of time. They added that the delay was caused by the Prison Officers and they know that they filed the notice of intention to appeal within ten days which are require by the law and they were not late. Therefore, they prayed for this appeal to be heard and determined. 3 In her short rejoinder submission, the State's Attorney for the Republic stated that the notice of intention to appeal is the basis of filing an appeal and it was to be filed within time but the Appellant filed it after thirty-three from the date of judgment instead of being filed within ten days. The learned State Attorney requested for this appeal to be struck out. In view of the position rendered by the Court of Appeal in Hussein Ramadhan Beka v. Republic (supra), I concur with the State's Attorney for the Republic that the Appellants were required to file their notices of their intention to file an appeal before the Trial Court within ten days from the date of judgment. The impugned judgment was delivered on the 2nd day of January, 2023. The Appellants filed their notices of intention to appeal before the subordinate Court on 9th February, 2023 which was thirty-three days from the date of judgment. The Appellant stated that their notices of intention to appeal was filed on time and the one to be blamed are the Prison Officers. Section 361 (1) (a) of the Criminal Procedure Act (supra), states as follows: "361 (1) Subject to subsection (2), no appeal from any finding, sentence or order referred to in section 359 shall be entertained unless the Appellant (a) has given notice of 4 his 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; " Having gone through the Appellants' notices of intention to appeal, I found the Appellants filed their notices in Court on 9th February, 2023. As much as I am concerned, I agree with the State's Attorney for the Republic that the notices of intention to file an appeal filed by the Appellants were filed out of time. Failure to file their notices of intention to appeal on time renders this appeal incompetent. In case the Appellants are still determined to proceed to pursue an appeal, they are required to start afresh by taking two main steps. One, by making an application for an extension of the time to file the notice of intention to appeal out time. Two, to file an application for leave to appeal out of time as time starts to run from the date of finding, sentence or order. See the case of Mohamed Shango and Two Others v. Republic, Criminal Appeal No. 62 of 2016 (unreported). On the basis of the foregoing reasons, I struck out this appeal for being accompanied with a defective notice of intention to appeal. Order accordingly. 5 DATED and DELIVERED at SONG^^^^day of May, 2023. /n u*E-MADEHA JUDGE ..Ji v-Z\< •/.:/ /•<// 31/05/2023 COURT: Ruling is read over in the presence of the Appellants and Mr. Alfred Maige and Mr. Frank Sarwart, State Attorneys who joined their forces to represent the Respondent. Right of appeal is explained. U. E. MADEHA / 1 JUDGE - 71 f / 31/05/2023 6