Emmanuel Simforian Massawe vs The Attorney General (Civil Appeal 216 of 2019) [2022] TZCA 390 (17 June 2022)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MKUYE, J.A.. LEVIRA, 3.A. And MWAMPASHL J J U CIVIL APPEAL NO. 216 OF 2019 EMMANUEL SIMFORIAN MASSAWE.............................................APPELLANT VERSUS THE ATTORNEY GENERAL.........................................................RESPONDENT [Appeal from the Ruling and Drawn Order of the High Court of Tanzania (Main Registry) at Dar es Salaam (Masoud, J.^ dated the 27th day of October, 2016 in Civil Cause No. 32 of 2018 JUDGMENT OF THE COURT 6th & 17th June, 2022 LEVIRA, 3.A.: In the High Court of Tanzania (Main Registry) at Dar es Salaam (henceforth the High Court) the appellant Emmanuel Simforian Massawe by way of an originating summons made under Article 26 (3) and 33 (3) of the Constitution of the United Republic of Tanzania, 1977 (henceforth the Constitution), sections 4 and 5 of the Basic Rights and Duties Enforcement Act [Cap 3 RE 2002] and Rules 2 (l)-(3) and 4 of the Basic Rights and Duties Enforcement (Practice and Procedure) Rules, G.N. No. 304 of 2014 instituted a petition against the Attorney General i challenging the constitutionality of section 36 (2) of the Economic and Organized Crimes Control Act, Cap 200 (henceforth the EOCCA or impugned provision) vide Miscellaneous Civil Cause No. 32 of 2018. The main contentious issue in the petition was that the impugned provision offends Article 13(6) (a) of the Constitution. The petition was opposed by the respondent by way of preliminary objection on account that the same was res judicata following the decision of the High Court in Gedion Wasonga and 3 Others v. The Attorney General and 3 Others, Miscellaneous, Civil Cause No. 14 of 2016. The High Court sustained the preliminary objection as it found the petition res judicata and consequently, struck it out. Undaunted, the petitioner preferred the current appeal. Briefly, the background of this appeal is to the effect that, the appellant and two others who are not parties to this appeal were arraigned before the Court of the Resident Magistrate of Dar es Salaam at Kisutu facing eight counts, to wit, one count of conspiracy, six counts of abuse of position and one count of occasioning loss to a specified authority. The appellant and his co-accused attempt to apply for bail before the High Court in Miscellaneous Criminal Application No. 51 of 2016 proved futile following the Certificate of the Director of Public Prosecutions (the DPP) objecting bail made under section 36 (2) of the EOCCA on ground that the safety and interest of the Republic will be prejudiced. Basing on the DPP's Certificate, the High Court desisted from granting bail to the appellant and his fellows. As a result, the appellant was aggrieved and appealed to the Court vide Criminal Appeal No. 252 of 2016. In its decision, the Court cemented that once the Certificate filed by the DPP under section 36(2) of the EOCCA is found to have been validly filed, it bars the trial court to granting bail to the accused and the DPP is not required under the law to give reasons for objecting bail where he considers that the safety or interest of the Republic are likely to be prejudiced. The appeal was thus dismissed. Untiringly, the appellant instituted in the High Court the constitutional petition (Miscellaneous Civil Cause No. 32 of 2018) subject of the present appeal. Before us the appellant has presented four grounds of appeal as follows: - 1. That the tria l Judge erred gravely to strike out the petition (originating summons) alleging that the issue o f constitutionality o f section 36 (2) o f the EOCCA was res judicata by virtue o f the decision o f the High Court o f Tanzania in 3 G edion W asonga an d 3 O thers v. The A tto rn e y G eneral an d 3 O thers, Misc. C ivil Cause No. 14 o f 2016 (unreported) and the case o f F ik iri Liganga & A n o th er v. the A tto rn ey G eneral an d Another, HC Misc. C ivil Cause No. 5 o f 2017; 2. That the tria l Judge erred in not considering and even referencing the reasons advanced by the appellant's counsel that showed that the decision o f the High Court in G edion W asonga & 3 O thers v. The A tto rn e y G eneral an d 3 O thers M isc C ivil Cause No. 14 o f 2016 (unreported) did not conclusively determ ine the constitutionality o f section 36(2) o f the Econom ic and Organized Crim es Control A ct Cap 200 R.E. 2002 as it was based on the decision o f the Court o f Appeal o f Tanzania i.e. The D ire cto r o f P u b lic P ro secution s v. A lly N u r D irie [1988] TLR 252 and The D ire cto r o f P u b lic Pro secution s v. L i Lin g Ling, Crim inal Appeal No. 508 o f 2015 Court o f Appeal o f Tanzania (unreported) on the validity o f Certificate denying b ail file d by the Director o f Public Prosecutions (DPP) issued under the said section and not on the constitutionality o f the said section. 3. That the tria l Judge erred in law and fact to find him self bound by the decision o f the High Court i.e G edion W asonga & 3 O thers (supra) that held that the Jerem ia M tobesya v. The A tto rn e y G eneral, M iscellaneous C ivil Cause No. 29 o f 2015 High Court o f Tanzania (unreported) was wrongly decided despite the fact that the said decision was upheld by the Court o f Appeal o f Tanzania in The A tto rn ey G eneral v. M r. Jerem ia M tobesya, C iv il Appeal No. 65 o f 2016 (unreported) that found section 148 (4) o f the Crim inal Procedure A ct Cap 20 R.E 2002 which is in p a ri m ateria with section 36 (2) o f the Econom ic Organized Crim es Control A ct Cap 200 R.E. 2002 unconstitutional. 4. That the ruling o f the tria l judge was not a ruling in the real sense o f the word as it did not canvass the positions advanced by the appellant that showed that the appellant had a right to file the said su it and challenge the constitutionality o f section 36 (2) o f the Economic and Organized Crimes Control A ct Cap 200 R.E. 2002 and the originating summons was properly before the Court as there was no decision on the constitutionality o f the said section 36 (2) o f the Economic Organized Crimes Control A ct ever decided by the Court o fAppeal o f Tanzania. This appeal is opposed by the respondent. At the hearing of the appeal, the appellant was represented by Dr. Rugemeleza Nshala, Messrs. Fulgence Massawe and Jeremia Mtobesya, all learned advocates, whereas, the respondent had the services Messrs. Abubakar Mrisha and Tumaini Kweka, both learned Principal State Attorneys assisted by Mr. Nassoro Katuga and Ms. Mwanaamina Kombakono, both learned Senior State Attorneys together with Ms. Jacqueline Kinyasi and Mr. Mkama Musalama, both learned State Attorneys. Dr. Nshala prefaced his submission in support of the appeal by clustering the first, second and fourth grounds of appeal, which he said, would be argued together by him and Mr. Mtobesya and the third ground to be argued separately by Mr. Massawe. In support of those three grounds of appeal Dr. Nshala vehemently contended that the High Court Judge was wrong to strike out the appellant's petition on account that the same was res judicata following its previous decision in Gedion Wasonga & 3 Others (supra) 6 which did not determine the issue of constitutionality of section 36 (2) of the EOCCA. According to him, the High Court in the said case just purported to determine the constitutionality of the impugned provision but eventually ended up with a per incuriam decision. Energetically, he expressed how the case of Gedion Wasonga and 3 Others was wrongly decided but of importance for the purpose of this appeal, was his enunciation that the High Court never decided on the issue of constitutionality of the impugned provision and the decisions of Director of Public Prosecutions v. Ally Nur Dirie and Another [1988] TLR 252 and Director of Public Prosecutions v. Li Ling Ling Criminal Appeal No. 508 of 2015 (unreported) were relied therein out of context because they, as well, did not deal with the constitutionality of the impugned provision. He went on to elaborate that in the case of Ally Nur Dirie and Another (supra) just as in the latter case cited above, the Court was required to consider the validity of the certificate that had been filed by the Director of Public Prosecutions under the provision of section 148 (4) of Criminal Procedure Act [Cap 20 RE 2019] (henceforth the CPA) of which is in pari m aterial with section 36 (2) of EOCCA. 7 Dr. Nshala further faulted the High Court for basing on the case of Jumuiya ya Wafanyakazi Tanzania v. Kiwanda cha Uchapishaji cha Taifa [1988] T.L.R 146 to find that, it was bound by those two decisions which in principle are not related as the constitutionality of section 36 (2) of the EOCCA cannot be mingled with a criminal matter under section 148 (5) of the CPA. It was his firm submission that since in the case Jeremia Mtobesya v. The Attorney General, Miscellaneous Civil Cause No. 29 of 2015 (unreported) also cited in Gedion Wasonga & 3 Others (supra) the High Court had already declared section 148 (4) of the CPA which is in p ari m ateria with the impugned provision unconstitutional, it as well, ought to have taken cognizance of that decision and proceed to declare the impugned provision unconstitutional but that was not the case. Therefore, Dr. Nshala argued that it was wrong for the High Court in the current case to hold that the matter before it was res judicata because there was no point in time it had decided on the constitutionality of the impugned provision and at any rate, it could not be bound by the decision of the panel of Judges of the same court in Gedion Wasonga and 3 Others case. According to him, the Court in 8 appellant's initial appeal (Criminal Appeal No. 252 of 2016) directed the appellant to challenge the constitutionality of the impugned provision and that is why the appellant instituted the Constitutional Petition to the High Court subject of the present appeal. He thus urged us to allow the appeal. In addition, Mr. Mtobesya submitted that section 9 of the Civil Procedure Code, Cap 33 R.E 2019 (the CPC) does not apply in constitutional matters to bar interested party from challenging the constitutionality of laws which affect rights of citizens. He referred us to page 203 of the record of appeal while making reference to the case of Julius Ishengoma Ndyanabo v. The Attorney General [2004] T.L.R 38 and argued that interpretation of section 9 of the CPC should have regard to the Constitutional provisions, particularly, Article 26 (2) which protects rights so as to guard against that provision crippling the Constitution for an auspicious constitutional supremacy. Finally, he urged us to find that section 9 of CPC does not take supremacy over Article 26 (2) of the Constitution. Mr. Massawe prefaced his submission in respect of the third ground of appeal by the contention that, the laws made by the court must be clear, unambiguous and not contradicting. He stated further 9 that the impugned decision of the High Court relied heavily on the case of Gedion Wasonga and 3 Others (supra) without taking into consideration Jeremia Mtobesya's case which decided that section 148 (4) of the CPA whose wording is semantically similar to the impugned provision in the current appeal, is unconstitutional. According to him, since the position of the law was already clear in Mtobesya's case it was wrong for the High Court in Gedion Wasonga and 3 Others case to hold that the same was reached per incuriam . More so because the right to bail of a person charged with an offence cannot be treated differently under section 148 (4) of the CPA from the one falling under section 36 (2) of EOCCA. Therefore, he prayed for the appeal to be allowed with no orders as to costs. He further prayed the case file to be remitted to the High Court for it to determine the issue regarding the constitutionality of the impugned provision. Mr. Kweka and Ms. Kinyasi responded to the first, second and fourth grounds of appeal and Mr. Mrisha and Mr. Kweka made a reply to the third ground of appeal which they preferred to start with. As regards the applicability of section 9 of the CPC in constitutional matters, Mr. Mrisha submitted that the same is applicable and the High Court Judge correctly applied it to hold that the matter before him, 10 subject of the current appeal, was res judicata. He cited to us the case of Fikiri Liganga and Another v. The Attorney General & Another, Miscellaneous Civil Cause No. 5 of 2017 (unreported) wherein the doctrine of res judicata in terms of section 9 of the CPC was applied to determine constitution petition and thus it should not be applied otherwise in the current matter. In fact, he said, section 9 of the CPC complies with Article 26 (2) of the Constitution as it is a guard against endless litigations. Focusing on the third ground of appeal, Mr. Mrisha submitted that the appeal before us is between Emmanuel Simforian Massawe v. the Attorney General and not an appeal against Gedion Wasonga and 3 Others v. The Attorney General. He went on acknowledging the issue of in p ari m ateria provisions was discussed by the appellant's counsel in Jeremia Mtobesya's case. He concurred with them that the wording of section 148 (4) of the CPA is replicated in the impugned provision. However, he argued that the purpose of enacting those provisions is different. For instance, he said, the EOCCA was specifically enacted to make better provisions for the control and eradication of certain crimes and culpable non-criminal misconduct through the prescription of modified investigation and trial procedures, and new ii penal prohibitions, the provision of enhanced sanctions and new remedies, and for related matters as it can be seen in its long title and the same is constitutional. He pointed out that the court cannot declare a provision of the law unconstitutional on ground that it is in p ari m ateria with another provision which had already been so declared. Enthusiastically, he reiterated his submission that each law has been enacted to serve its own purpose and thus declaring section 36 (2) of the EOCCA unconstitutional basing on the same declaration under section 148 (4) of the CPA will defeat the purpose of its enactment. Besides the stated position of the law, Mr. Mrisha, highlighted that the issue before the Court is whether the present case falls under the principle of res judicata and whether the High Court was right to hold so. He thus urged us to determine those two issues and not whether the impugned provision is in p a ri m ateria with section 148 (4) of the CPA with a view of borrowing what was decided in Jeremia Mtobesya's case. He emphasized that the jurisdiction of the Court is conferred under section 4 (1) of the Appellate Jurisdiction Act, Cap 141 R.E 2019 (henceforth the AJA) which among others mandates the Court to hear appeals from the High Court and subordinate courts with extended jurisdiction. Therefore, the Court should only direct its mind to the 12 decision of the High Court in the case of Emmanuel Simforian Massawe which is subject to the present appeal. In addition, Mr. Kweka submitted that the High Court found the matter in the present case of Emmanuel Simforian Massawe res judicata, thus he urged us to determine whether the High Court was correct and not otherwise. He went on stating that the issue regarding the case of Gedion Wasonga and 3 Other (supra) was not properly raised before us and thus we should only consider the decision of the High Court in the present case because it was responding to the points of preliminary objection raised. He concluded that the third ground of appeal has no merits and prayed that it be dismissed. On her part, Ms. Kinyasi while responding to the first, second and fourth grounds of appeal contended that the case before the Court is of Emmanuel Simforian Massawe and not Gedion Wasonga and 3 Others. However, she said, since the decision in the case of Gedion Wasonga and 3 Others has never been challenged before the Court, it stands to be a settled position of the law that, the impugned provision is constitutional as reflected from page 352 to page 353 of the record of appeal. Therefore, the High Court Judge was properly moved and correctly in her view, decided that the case was res judicata. 13 She referred us to the decision of the Court in The Attorney General v. Dickson Paulo Sanga, Civil Appeal No. 175 of 2020 (unreported) where it was stated that the principle of res judicata is applicable in public litigations with a view to fault the contrary argument by the counsel for the appellant. She also cited the decisions of the High Court in Machiba Selemani and 2 Others v. Attorney General, Miscellaneous Civil Cause No. 24 of 2018 and Boniface Vincent Muhoro and 4 Others v. Attorney General, Miscellaneous Civil Cause No. 03 of 2019 (both unreported). Regarding the arguments by the counsel for the appellant that the High Court Judge was bound by the decision of Gedion Wasonga and 3 Others, she submitted that, the said argument was fallacy. According to her, the principle applied in the current matter to strike out the petition was res judicata and not stare decisis. She thus urged us to find the appeal baseless and dismiss it. Finally, Mr. Mrisha prayed for costs as the respondent has incurred costs in terms of time and resources to prepare for the appeal. Dr. Nshala made a very brief rejoinder that section 9 of the CPC should be used sparingly in public interest litigations. He insisted that the issue on the constitutionality of the impugned provision was not 14 properly determined in the case of Gedion Wasonga and 3 Others (supra) and that is what the appellant invites the Court to decide. On his part, Mr. Mtobesya reiterated his argument regarding the constitutional supremacy under Article 26 (2) of the Constitution over section 9 of the CPC. Regarding costs prayed for by the counsel for the respondent, Mr. Massawe prayed that the same should not be provided since this is the public interest matter under Rule 18 (2) (3) of the Basic Rights and Duties Enforcement Act. Therefore, he prayed for the appeal to be allowed without costs. We have dispassionately considered the rival submissions by the counsel for the parties. We appreciate their insight submissions on the matter at hand and of course, which to a large extent sheds light on our deliberations and determination of this appeal. Nevertheless, we wish to point out at the outset that we may not be able to utilize each and every material presented before us as of now save for the only vital issue for our determination which is, whether the High Court Judge was right to decide that the matter was res judicata. We take note, as intimated earlier on that the petition presented before the High Court intended to challenge the constitutionality of section 36 (2) of the EOCCA. 15 The said provision reads: - "Notwithstanding anything in this section contained, no person sh all be adm itted to b a il pending trial, if the D irector o f Public Prosecutions certifies that it is like ly that the safety or interests of the Republic would thereby be prejudiced". It was the appellant's argument that the said provision offends among others, Article 13 (6) (a) of the Constitution. According to the record before us the matter was determined on the basis of the principle of res judicata which is embodied in section 9 of the CPC as the High Court was satisfied that the same issue was raised and determined by the same court in Gedion Wasonga and 3 others case (supra). Basically, the principle of res judicata bars the courts of competent jurisdiction from determining the same matter between same parties which has been previously determined by the same court to its finality over the same subject matter, so as to ensure certainty in the administration of justice and finality to litigation. For clarity section 9 of the CPC stipulates as follows: - "No court sh all try any su it or issue in which the m atter directly and substantially In issue has been 16 directly and substantially in issue in form er su it between parties under whom they or any o f them claim litigating under the same title in a court com petent to try such subsequent su it or the su it in which such issue has been subsequently raised and has been heard and fin ally decided by such court". In terms of the above provision, we wish to restate three essential elements for the principle of res judicata to apply hereunder: - 1. The matter which is directly and substantially in issue in the present case must also have been directly and substantially in issue in a former suit. 2. The previous suit must have been finally and conclusively determined. 3. Parties claiming in the present suit and the former suit must be the same parties claiming under the same title. Initially, counsel for the parties in the current case had adverse arguments as far as the applicability of section 9 of the CPC or rather the principle of res judicata is concerned in constitutional matters. The counsel for the appellant forcefully argued that the said provision is not applicable in matters challenging the constitutionality of laws affecting 17 rights of citizens. However, eventually they conceded to the position taken by respondent's counsel that the same is applicable. We take note that their concession was not without reservation as they pressed that the same should be applied sparingly. Notwithstanding the reservation, the law is settled as far as the applicability of the principle of res judicata is concerned. In this regard we are persuaded by the decision of the High Court in Fikiri Liganga and Another (supra) cited to us by the counsel for the respondent and subsequent decisions of the High Court where that principle was applied. We are as well guided by the decisions of the Court in that regard including The Attorney General v. Dickson Paulo Sanga (supra) where the Court stated categorically that the principle of res judicata is applicable in matters challenging constitutionality of provisions of laws. With that background in mind, we now move to consider whether indeed what was claimed and determined in Gedion Mwasonga and 3 Others case was similar to what is claimed in the present matter to justify the declaration that it was res judicata as decided by the High Court Judge. We had a privilege to go through the decision of the High Court in Gedion Mwasonga and 3 Others case. We came to learn that the petitioners therein petitioned for a declaration that, the 18 provisions of section 148 (5) (a) (v) of the Criminal Procedure Act, Cap 20 R.E 2002 (Now R.E. 2019) and section 36 (2) of the EOCCA are unconstitutional as they violate fundamental rights as guaranteed under the provisions of Articles 13 (6) (a), (b), (c) and (d), 15 (1) and 17 (1) all of the Constitution. In its decision, the High Court found that both provisions under consideration are constitutional and thus dismissed the entire petition. We are aware that the petitioners have not appealed against that decision of the High Court which declared the impugned provision constitutional. Therefore, the said decision of the High Court stands to be the correct position of the law to date as far as the constitutionality of section 36 (2) of the EOCCA is concerned. We are equally aware that in the present matter, the petitioner Emmanuel Simforian Massawe petitioned before the High Court for a declaration that the provision of section 36 (2) of the EOCCA is unconstitutional, which was substantially and directly the same issue determined by the High Court in Gedion Wasonga and 3 Others case. The question that follows is whether the parties are the same in those two cases. Plainly, it would appear that the petitioners are different. However, as we have intimated above and as it was rightly so 19 in our view, as determined by the High Court Judge at Page 211 of the record of appeal thus: - "In so far as public interest litigation cases are concerned, a ll persons interested In the relevant right as is the present case are deemed to claim under the persons so litigating in the previously decided cases. As stated in the case o f The S ta te o f Karnataka & A n o th er v. AH In d ian M anufacturers O rganisation an d O thers, AIR 2006 SC 186 which was relied upon by this court in the case o f F ik iri Liganga (supra) See Page 18-19 o f the ruling): .... in public interest litigation, the petitioner is not agitating his individual rights but represents the public a t large. As long as the litigation is bonafide, a judgm ent in previous public interest litigation would be a judgm ent in rem. It binds the public a t large and bars any member o f the public from coming forw ard before the Court and raising any connected issue or an issue, which had been raised / should have been raised on an earlier occasion by way o f public interest litig ation ...." 20 We wish to emphasize here that since the effect or rather the outcome of the decision of the High Court in Gedion Wasonga & 3 Others case affects interests of the public at large, including the present appellant, the same provision could not be challenged for another time by another person (the appellant). In other words, the appellant herein was challenging the impugned provision under the same title. In the Attorney General v. Dickson Paul Sanga, (supra) the Court while addressing a similar situation had this to say: - "The rule o f res judicata is based on the considerations o f public policy as it is in the larger interests o f the society that fin ality should attach to binding decisions o f courts o f com petent jurisdiction and that individuals should not be made to face the same kind o f litigation tw ice" In the light of the above position, we are of the settled view that the respondent could not be made to face the same kind of litigation twice by the appellant as the position had already been set in Gedion Wasonga & 3 Others case. We say so fully minded that the argument by the counsel for the appellant in the present case was that the case of Gedion Wasonga & 3 Others just purported to decide on the issue of constitutionality of the 21 impugned provision. This argument suggests that the appellant was dissatisfied with that decision and that is why he decided to lodge a fresh petition on the same subject matter. That move cannot be accepted! We tend to agree with the counsel for the respondent that it is as if the appellant is trying to use the back door to reinstitute the matter which had already been determined to its finality by a court of competent jurisdiction. If anything, in our conceded view, efforts could be made to appeal against the decision of the High Court in Gedion Wasonga and 3 Others case since the appellant believes that it was improperly determined. At any rate, dissatisfaction of a party to a suit or an interested person with a decision of the court does not justify reinstitution of the same case before the same court of competent jurisdiction. This remark takes us back to the appellant's prayers formulated from page 9 to page 10 of the record of appeal where we are invited to, one, allow the appeal; two, issue an order restoring Miscellaneous Civil Cause No. 32 of 2018 and further order that it be heard and determined on its own merits by other judges of competent jurisdiction; three, declare that the constitutionality of section 36 (2) of the EOCCA has never been determined by the Court of Appeal and thus 22 the decision of the High Court in Gedion Wasonga and 3 Others (supra) was wrongly decided and the trial judge in the impugned decision was wrong to rely on it; and four, that public interest cases only become res judicata if there is a judgment/ruling of the Court of Appeal over the same subject matter and not on the judgment or ruling of the High Court which does not bind other judges of the High Court. Our careful assessment of the orders prayed for by the appellant speak in loud voice that; first, the appellant is fully aware that the constitutionality of the impugned decision was determined by the High Court in the case of Gedion Wasonga and 3 Others; second, the High Court while in the case of Gedion Wasonga and 3 Others which challenged the constitutionality of section 36 (2) of EOCCA dealt with a public interest litigation; and third, the appellant as an interested person was not satisfied with that decision. In the circumstances, as we have already intimated, it was not proper for appellant to reinstitute before the same court a fresh suit challenging the same subject matter. The learned counsel for the appellant ought to have guided their client properly and / or join their efforts to institute an appeal against the decision of the High Court in the case of Gedion Wasonga and 3 Others so as to achieve the 23 intended goal in the present appeal. With respect, we decline the extended invitation in the above appellant's prayers as we are settled in our mind that, the High Court Judge was right to hold that the petition before him was res judicata and thus the issue for determination of the appeal we raised is answered in affirmative. Consequently, we find the appeal without merits and we dismiss it with no order as to costs since this is a public interest case. DATED at DAR ES SALAAM this 15th day of June, 2022. The Judgment delivered this 17th day of June, 2022 in the presence of Dr. Rugemeleza Nshala, learned counsel for the Appellant and Ms. Joyce Jonazi, learned counsel for the Respondent, is hereby R. K. MKUYE JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL copy of original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 24