Mohamed Ally vs Republic (Criminal Appeal No. 335 of 2014) [2020] TZCA 1769 (2 September 2020)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM : MKUYE, J.A., WAMBALI, J.A, And KITUSI, J.A. ) CRIMINAL APPEAL NO. 335 OF 2014 MOHAMED ALLY ................................................................. APPELLANT VERSUS THE REPUBLIC ............................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Mlay, J.) dated the 23 rd day of April, 2007 in H.C. Criminal Appeal No, 43 of 2006 RULING OF THE COURT 12 th & 2 nd September, 2020 KITUSI, J.A.: The appellant Mohamed Ally participated in hearing through video link services connected to Ukonga Prison. The respondent Republic was represented by Ms. Deborah Mcharo and Ms. Ellen Masululi, both learned State Attorneys. The matter is fairly old. Back in 2003 the appellant appeared before the District Court of Morogoro to answer a charge of unnatural offence contrary to section 154 (1) of the Penal Code, [Cap 16 R.E. 2000] (the Code), it being i

alleged that on 23 rd of February, 2003 within Morogoro Municipality he had carnal knowledge of one Innocent Deodat against the order of nature. At the end of the trial, the District Court convicted the appellant with that offence and sentenced him to a jail term or ju yeaib. nib nibi appeal to the High Court disposed of on 23 rd April, 2007 was unsuccessful. The appellant appeals hereto against that conviction and sentence, and he was ready to argue the merit, if not for an issue we raised suo mottu at the outset. i We drew the attention of the appellant and that of the learned State Attorneys to the Notice of Appeal that was lodged by the appellant. Cognizant of Rule 68 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rule£) which provides that it is the Notice of Appeal , ; ( which institutes an appeal, we wanted them to address us on whether i A there is a proper Notice before us. We were disturbed by the fact that the notice^of appeal indicates that the appellant is challenging a .conviction for rape. \ \ \ 2

The unrepresented appellant acknowledged the fact the Notice of Appeal cites rape contrary to section 130 (1) (2) (e) and 131 (1) of the Code, as the offence with which he had been convicted. He however confirmed that he was charged with and convicted of i innatiiral Offence under section 154 fl) of the Code. In addressing this point Ms. Mcharo stated that she had also taken note of the defect earlier, and she demonstrated this in her submissions. The learned State Attorney submitted that the Notice in question offends Rule 68 (2) of the Rules which requires it to state the nature of the conviction or acquittal. She cited the case of Shabani Abbasi v. Republic, Criminal Appeal No. 274 of 2013 (unreported) where we struck out the apoeal because the Notice of Appeal

• « r purported to challenge^ conviction for robbery with violence while the appellant had been convicted of Armed Robbery. The learned State

Attorney implored us to follow our established position and strike out this appeal. ! So, the question for our immediate determination is whether this Notice which cites rape, a completely different offence from that of \ 3

unnatural offence, can institute this appeal. In considering the above issue, we find it appropriate in the first place to make it clear that we are aware of the provisions of sub rule (8) of Rule 68 which was introduced in the Rules vide GN No. 344 of 2018 and it is to the Toilowing etreci; "(8) Notwithstanding the preceding provisions of this rule, where the notice of appeal deviates from the prescribed form, the Court may, on application by the appellant or on its own motion, order its amendment. " i Considering the time this matter has stood pending, we seriously toyed with the idea of ordering an amendment in terms of the above sub rule, but we eventually, ruled against it. This is because we can , J only order an amendment where the deviation on the notice of appeal / relates to the form. In our understanding of the term form as relates to a notice obappeal, it does not include its substance such as the 1 ( nature of the offence with which a prospective appellant was charged with. The Black's Law Dictionary, 9 th Edition defines 'form' as: 4

"1. The outer shape or structure of something as distinguished from its substance or matter". The notice of appeal under our discussion is false in the nature of the offence charged which is the very substance not merely the form, and thus wp cannot invoke siih rule W of R ij I p 68 of the Riilpq The case of Shaban Abbas v. Republic (Supra) cited to us by Ms. Mcharo was decided before the coming into being of sub Rule (8) of rule 68, therefore it cannot squarely apply in this case. Our conclusion therefore, is that the notice of appeal in this case is defective because it has cited an irrelevant content which cannot be amended by < invoking-sub rule (8) of Rule 68 of the Rules. Neither do we consider i this infraction as one that can be dealt with under the overriding objective principle recently introduced vide section 3A of the Appellate Jurisdiction Act [Cap. 141 R.E. 2019]. -This is because as we have / repeatedly cautioned, that principle is not to be applied blindly at the expense of established rules of procedure. See for-instance, the case / of Mondoros Village Counsel and 2 Others v. Tanzania Breweries Ltd & 4 Others, Civil Appeal No. 66 of 2017 (unreported). \ 5

It is also worth emphasizing that although in Civil Cases there is a provision of Ruke 83 (7) of the Rules, similar to Rule 68 (8) of the Rules, the position may be slightly different in civil cases for the obvious reason that a notice of appeal does not institute a civil appeal. Consequently, it is our conclusion that there is no proper notice of appeal, which renders the appeal incompetent and we accordingly strike it out. The appellant may lodge a fresh notice of appeal subject to limitation. Order accordingly. DATED at DAR ES SALAAM this 31 st day of August, 2020. R. K. MKUYE JUSTICE OF APPEAL F. L. K. WAMBALI JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL The Ruling delivered this 2 nd day of September, 2020 in the presence of the appellant in person - linked via video conference from Ukonga and Ms. Joyce Nyumayo, learned State Attorney for the respondent/Republic is hereby certified as a true copy of the original. ,B. A. MPEPO DEPUTY REGISTRAR COURT OF APPEAL