the director of public prosecutions vs david emmanuel mataka 2 others 2023 tzhclandd 17001 6 october 2023

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 21 OF 2022 (Originating from Criminal Case No. 13/2016, Resident Magistrate Court of Dar es salaam at Kisutu) THE DIRECTOR OF PUBLIC PROSECUTIONS - APPELLANT VERSUS DAVID EMMANUEL MATAKA RESPONDENT RAMADHAN SEIF MLINGA 2^^ RESPONDENT BERTHA SOKA RESPONDENT RULING 29/09/2023 to 06/10/2023 E.B. LUVANDA,J The Second and Third Respondent named above raised a preliminary objection on the ground that; One,this Court has no jurisdiction to entertain the present appeal for reason that there is an appeal pending at the Court of Appeal on matter that is directly connected to and related with the matter being appealed herein; Two, this Court is functus officio to entertain the present appeal on the ground that the present appeal is against the sentence imposed on the Respondents, which matter has already been determined by this Court In Criminal Appeal No. 222/2021, as per Hon. Mussa Pomo, J. Mr. Mpaya Kamara and Mr. Hussen Kitta Mlinga learned Advocates for the Second and Third Respondents submitted that upon completion of proceedings of the trial at the Resident Msaglstrate's Court of Dar es Salaam at Kisutu (Economic Case No. 13/2016), the Second and Third Respondent herein appealed to this Court vide Criminal Appeal No. 222/2021 was determined on merit by Hon. Pomo, J and the Appellant here was fully represented. They submitted that following the decision of Hon. Pomo,J the Second and Third Respondent lodged their notice of appeal on 22/05/2022 to the Court of Appeal to challenge the whole decision of Hon. Pomo, J and the notice was served to the Appellant herein. They submitted that a notice of appeal kick start the appeal process, argued the Second and Third Respondent are considered to have appealed to the Court of Appeal as from the date of lodging a notice of appeal. They submitted that once there is an appeal, the courts below cease to have jurisdiction to entertain matters to which appeal relates. They cited Abdallah Salehe & Others vs. the Registered Trustees of Tabata (Magengeni] Muslim Community, Civil Application No. 41/2021 HC; Serenity on the Lake Limited vs. Dorcas Martin Nyanda, Civil Revision No. 1/2019 CAT. They submitted that, the decision in the appeal which is pending at the Court of Appeal might render the decision in the present appeal nugatory, arguing this appeal to be stayed until the one pending at the Court of Appeal is determined. On the second objection,the learned Advocates submitted that the sentence being appealed against in the present appeal was once among the thing this Court determined in Criminal Appeal No. 222/2021, citing page 38 of the judgment of Hon. Pomo J, argued that this Court clearly uphold the trial court's conviction and sentence imposed on the Respondents. They submitted that having dealt with the question of sentence on merit, this Court is rendered functusofficio\.o re open it and determine it again. They cited the Black's Law Dictionary,8"^ Edn; Patricia Sime to vs. Uongozi wa CCM Tawi ia Muungano, Misc. Land Appeal No. 119/2021 HC Land Division; The First Respondent in his reply to the submission by the Appellant he submitted that in Criminal Appeal No. 222/2021 this Court Hon. Pomo, J dismissed the appeal by the Second and third Respondents herein and upheld conviction and sentence, argued it render this matter res- judicata. In opposition,the learned Senior State Attorney for the Appellant, submitted that this appeal emanate from Economic Case No. 13/2016, where the Appellant was aggrieved by the sentence given after conviction, where they lodged a notice of appeal and petition to the High Court seeking the Court to set aside the illegal sentence imposed by the trial Court and the prayer to substitute the same in accordance with the iaw. He submitted that, on the other hand the Second and Tliird Respondents objected to the conviction of the trial court, hence filed an appeal with the High Court against the conviction whiie the Appeliant was pursuing those appeal procedures before the High Court. He submitted that the appeai by the Second and Third Respondent was registered number 222/2022 (sic, 2021) which was heard by Hon. Pomo,J and the decision delivered on 15/02/2023 and 05/05/2023. He submitted that the appeal by the Appellant was registered number 21/2022. He submitted that at the time the appeal by the Second and Third Respondent was heard and determined by this Court, neither the Court nor the parties were aware of the presence of appeal No. 21/2022 lodged by the Appeliant and thus the same was not part and parcel of the decision delivered by Hon. Pomo, J, though the Appellant appeared as Respondent during the hearing of the said appeal. He submitted that In the absence of evidence and or decision which show that the Appellant's appeal had been entertained by this Court as a cross appeal or consolidated appeal leave the room to this Court to have jurisdiction to entertain the same and it is not barred by the notice or memorandum of appeal filed by 4 the Second and Third Appellant (sic, Respondent) to the Court of Appeal, argued those are separate matters. He submitted that outcome of the said pending appeal to the Court of Appeal will not affect or render this appeal nugatory for the following reasons: One, parties in appeal No. 222/2022 (sic, 2021) did not involve the First Respondent herein; Two, grounds of appeal in 222/2022 (sic, 2021) raised by the Second and Third Respondent are quite different from ground of appeal herein; Three, the issue of sentence which the Appellant complain herein was not discussed in 222/2022(sic, 2021) by way of cross appeal or consolidated appeal,or given the opportunity to argue the same during hearing of Criminal Appeal No. 222/2022 (sic, 2021). He submitted that the pending appeal to the Court of Appeal originated from the grounds of appeal which were determined by Hon. Pomo, J while the Appellant's appeal was not heard, argued this Court has jurisdiction to entertain this appeal. For the second ground of objection, the learned Senior State Attorney Criminal Appeal No. 222/3022 (sic, 2021) did not at all touch the issue of the sentence which is the subject matter in this appeal. He submitted that in 222/2022(sic, 2021)the prayer by the Second and Third Respondent was to quash the conviction and set aside the sentence of the trial court, while the appeal by the Appellant in Criminai Appeal No. 21/2022 was against the sentence which the Appellant's are of the opinion that the same Is manifestly Inadequate and plainly Illegal In the eyes of the law. He reiterated that parties did not argue the issue of sentence In Criminal Appeal No. 222/2022 (sic, 2021), cited pages 16, 17 and 21 of the judgment of this Court, arguing what was In contention was the words "It Is likely" but not legality or Illegality of sentence. He submitted that the reliefs sought by the Second and Third Respondents In Criminal Appeal No. 222/2022 (sic, 2021) was not featured In this appeal. He cited the case of Bibi Chiku Matesa vs. Board of Trustees of National Security Fund (NSSF), Labour Revision No. 170/2022, Labour Division. On rejoinder, the learned Counsel for the Second and Third Respondent submitted that Criminal Appeal No. 222/2021 was against both the Respondents' conviction and sentence by the trial court and not against conviction alone as suggested by the Appellants. He submitted that Hon. Pomo, J dismissed their appeal and uphold both conviction and sentence. He submitted that even If ground of appeal In this appeal and Criminal Appeal No. 222/2021 are different, but they both tend to affect the sentence Imposed by the trial court, arguing that the Issue of sentence was determined by Hon. Pomo,J. He submitted that Judges are enjoined to take cognizance of decision of their brothers on the same bench to avoid embarrassing the judiciary by issuing conflicting decisions. He cited the case of Mohamed Enterprises(T) Limited vs. Masoud Mohamed Nasser, Civil Application No. 33/2012, CAT at Dar es Salaam. It is true that the First Respondent here in was not a party in Criminal Appeal No. 222/2021. It is undisputed fact that the ground of appeal herein where the Appellant challenge the sentence imposed by the trial court on the line of argument that the same is manifestly in adequate and illegal, was not among the ground of appeal raised or argued in Criminal Appeal No. 222/2021. It is undeniable fact that this appeal was neither entertained as cross appeal or consolidated to the proceedings of Criminal Appeal No. 222/2021 which was disposed before Hon. Pomo J on 05/05/2023. It is true that reliefs on prayers therein Criminal Appeal No. 222/2021 the Second and Third Respondent would wish the court to quash the conviction but also to set aside a sentence meted against them, while herein the Appellant are determined for the enhancement of sentence. The point which I want to draw out here, is that even if the appeal No. 222/2021 by the Second and Third Respondent was wholly hinged and focused on conviction, but the eventually could land on the verdict of sentence as well. Likewise this appeal which is entirely focused on the sentence, its eventuality will either land to disturb or alter or vary the measure imposed on the sentence be it increment to severe measures or this court might end up affirming or confirming the measures taken by the trial court on sentencing the Respondents. Therefore, whether parties argued substantiveiy or not, at the end of the day the court normally make a final verdict on the aspect of sentence. This can be evidenced in Criminal Appeal No. 222/2021, at the final verdict. Honourable Pomo, J made the following court decision, I quote and bold a portion of my interest, '7/7 t/?e upshot of all this, I hold that the appeal Is destitute of ment and I dismiss It I, in turn, uphold the trial Court's conviction andsentence Imposed on the appellants" To my view, this Court is now tied up hands, to re- open discussion, arguments and imposing a different verdict to the one pronounced by this Court per above quotation. This Court can only entertain the question of the legality of sentence after this verdict above quoted is varied by the superior court. This is the import in the case of Bibi Chiku Matessa (supra), at pages 11 and 12 cited the case of Kogel Fahrzeugwerke vs. Liberty Tenscargo Limited, Misc. Commercial Application No. 288/2015, which at pages 13 to 14 had the following to say, I quote and bold a portion of Interest to me, "The maxim functus offido is that no Court when it hassigned its judgment or finai order disposing a case shaii aiter or review the same exceptto correcta ciericaior arithmeticaierror. Thissection is based on an acknowiedged principie ofiaw that once a matter is finaiiy disposed ofby a Court, the said Court, in absence ofa specidc statutory provision becomes functus ofdcio and dis entitied to entertain a prayer with the same reiiefunlessformal order of final disposal Is set aside by the Court of competentjurisdiction In a mannerprescribedbylaw. The Court becomes functus offido the moment a final order disposing ofthe case Issigned" Of Important here Is that once a final order Is signed on the subject matter covering the same relief, the Court Is disentitled to entertain the same prayer. In the case of Patrica Simeto (supra), at page 8 cited the case of Kamundu vs. Republic (1973) EA 540 where the East Africa Court of Appeal held that, I quote. "A court becomes functus officlo when ft dispose ofa case by a verdictofguHtyorpassingsentence or mafcingsome ordersfinally disposing ofthe case'' In Mohamed Enterprises (supra), the apex Court had this to say, regarding Issuing conflicting decision on the same matter, I quote, " There should be no room open to the High Court and Courts subordinate thereto whereby one judge would enterjudgment and draw up a decree in one case (thus bring such a case to finality) only to find another judge of the High Court soon thereafter setting aside the said judgment and decree and substituting thereof with a contraryjudgment and decree in a subsequent application. To do so in our considered opinion, amounts to a gross abuse of court process. Such abuse should not be allowed to win ground in this jurisdiction....once a judgment and decree are issue by a given court, judges (or magistrates) of that court become functus offtcio in so far that matter is concerned" 10 In the premises, this Court is functus officio to entertain the question of legality or otherwise illegaiity of sentence which was confirmed by this Court. Therefore, this appeai remained to be incompetent before this Court, in the resuitant, its struck out, until when the apex Court rule otherwise in the circumstances. •E.Bf l^ANDA pUDGE QB/10/2023 Ruling deiivered through virtuai/court attended by Mr. Riziki Matitu learned Senior State Attorney for Appeilant; Mr. Hussein Kitta Miinga learned Advocates for the Second and Thifst^espondents and the First Respondent in person. E.B. LUV A ^GE 10/2023 11