director of public prosecution 2 1986 tzca 32 28 april 1986

IN THE COURT OF APPEAL OF TANZANIA

A T DAR ES SALAAM CORAHt KISANGA, J.A.; CRIMINAL APPLICATION NO. MYA 1 OF 1985

BETWEEN SELEMANI KIPINDULA.................. - . APPLICANT AND THE DIRECTOR OF PUBLIC PROSECUTIONS. . .RESPONDENT (Application from the Judgments of the High Court °f Tanzania, Mbeya, in its Appellate Jurisdiction in Criminal Appeal Np . 61 of 1983 (Original case No. 9 of 1983 of the District Court Sumbawanga) and Criminal Appeal No. ^02 of 1983 (Original Criminal case No. 240 of 1983 of Sumbawanga District Court.

R U L I N G KISANGA. J.A o : The applicant had been convicted by the District Court of Sumbawanga on two separate occasions for the offence of s c a l i n g b y servant, and was on e-ch occasion sentenced to six years' imprisonment. His appeals to the High Court at Mbeya were heard separately by two different judges, each upholding the conviction and sentence. In his applicaton to this Court, therefore, the applicant is seeking for an order that the two prison terms be made to run concurrently. The main contention as urged by Mr. P. R. Bateyunga on behalf of the applicant was that both offences involved stealing from the same employer, and were committed wi t h i n a very short interval of only about four days; so that had they been preferred in one information the District Court would have ordered the prigon terms to run concurrently. Mr. A. A. M. Teemba, learned Senior State Attorney who appeared for the Republic stated at first that he did not oppose the application. ......./2f - 2 - I', asked counsel m u which provision of the la.w this application was brought, tic. Bateyunga seened to take the view that this Court has inherent powers to grant such an order. Alternatively he £«lied on the provisions of section 36 of the Penal Code and section 135 of the Crinina.1 Procedure Act as conferring such powers. He further referred ne to a nuj'iber o.1 decided cases in support of

that subnlosion, Anong the cases cited >rares Burton Mwakjpegile v. R (1965) B.A, 407* Chilenba . H. (1969) E.A. 479 and Leurai Aron v. R. (1977) IuR.T. Wo, 40. V‘ With due respect to the learned counsel, however, all the references are conpletely irrelevant and of no avail. Section 36 of the Penal Code relates to the powers of a trial court to order conourrent prison sentences, and section 133 of the Criminal Procedure Aot deals with joinder of counts in a change or infomation while the oa.S9S cited dealt with the powers of the High Court on appeal to nake an order for concurrent prison sentences* In the instant case, however, we are concerned with the pc,«ars of the Court of Appeal to nake an order for concurrent prison sentences* The Court of Appeal is a creature of Statute, It was established by the Appellate Jurisdiction Act, and its powers and jurisdiction axe as conferred upon it by that Act. It cannot derive its power or authority fron anywhere* Under the Act, the jurisdiction of the Court is conferred by section 3 which provides, "3.-0) The Court of Appeal shall have jurisdiction to hear and determine appeals fron the High Court and fron subordinate courts with extended jurisdiction* (2) For all purposes of and incidental to the heading and determination of any appeal in the exercise of the jurisdiction conferred upon it by this Act, the Gfcurt of Appeal shall, in

addition to any other power, authority and jurisdiction conferred by this Act, ha.ve the power, authority and jurisdiction vested in the court fron which the appeal is brought". /3, - 3 - That section makes it very clear that the Court of Appeal has powers to hear and determine appeals and to make any orders incidental thereto* In other words, the Court has powers to hear applications and make orders thereon only in the course of dealing with an appeal whioh is before it. There is no other provision in the Aot which empowers the Court to make orders otherwise than in the course of handling an appeal. The sane is true of the Court of Appeal Rules which are nade under section 11 of the Act. Rule 36 of the Rules provides that; "36. The Court na,y, in dealing with a,ny appeal, so far as its jurisdiction permits, confirm, reverse or vary the decision of the High Court, or renit the proceedings to the High Court with such directions as nay be appropriate, or to order a new trial, and to nake any necessary, incidental or consequential orders, including orders as to costa." Once again the operative words here are; ;'...,.in dealing with any appeal^ " and it is plain that that rule empowers the Court to nake orders upon applications in the course of an appeal before itf X have not been able to see any other rule which empowers the Court to make orders in circumstances other than in the

course of dealing with an appeal which is before it. In the instant case, there is no a,ppeal by the applicant before the Court of Appeal, '^hat being so, there is no P®^| as it were, upon which to hang the purported application. That is to say, the Court has no jurisdiction to entertain the application. As intina,ted earlier, Mr. Teemba, learned Senior State Attorney, stated a.t first that he had no objection to the application, but on second thoughts he conceded that this Court has no power to grant such application. Thus, although I an clear in my nind that there is merit in the application, it is a natter for regret that this Court has no power to redress the position. In the circunstaaces the application »*>••• /4 *. - 4 - is refused., and the applicant is advised, to seek his redress in the appropriate forum. DATED at ; MBEYA this 28th day of April, 1986. R. H. KISANGA

JUSTICE OF AEEEAL Applicant's right of a reference to the Court explained. R. H. KISAEGA

JUSTICE OF APPEAL I certify that this is a true copy of the original* ( J . H." MSOFFE)

DEPUTY REGISTRAR