Shangwe Mjema vs Frida Salvatory & Another (Criminal Appeal 103 of 2017) [2020] TZCA 61 (16 March 2020)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LILA. J.A. WAMBALI. J.A And KOROSSO, J.A.) Criminal Appeal No.103 OF 2017 Shangwe Mjema Appellant VERSUS

1. Frida Salvatory
2. Hamisi Mrisho Mbonde Respondents (Appeal from the decision of the High Court of Tanzania JUDGMENT OF THE COURT 14th February & 16th March, 2020 LILA JA. The Mbagala Primary Court within Temeke District in Dar es Salaam Region (henceforth the trial court) acquitted the two respondents, Frida Salvatory and Hamis Mrisho Mbonde, from the charge which comprised of two counts; first, house breaking contrary to section 294 and second; theft contrary to section 265 of the Penal Code Cap 16 of the Revised Edition, 2002. The acquittal was upheld by the District Court of Temeke on the first appeal by at Dar es Salaam) (Munisi, J.) dated the 21st day of September, 2016. In Criminal Appeal No. 13 No. 2017

the appellant. His further appeal to the High Court was, again, unsuccessful, hence the present appeal to the Court. The particulars of the offence were that, on 23/01/2015 at 15:30 hrs at Chamanzi kwa Mkongo area, the respondents did break and enter into a dwelling house of the appellant and made away with desks valued at TZS. 2,000,000/=, various school books and bulletins valued at TZS. 1,500,000/=; all total valued at TZS. 3,500,000/=. Consequent upon the respondents' denial of the appellant's allegations in the charge at the trial, each side marshalled three witnesses to prove and disprove the charge, respectively. After a full trial, the trial court found both respondents not guilty, hence acquitted them. That finding was sustained by both the District Court and the High Court on first and second appeals, respectively. All the courts below were of the concurrent and firm view that the appellant was simply evicted from the house on account of his failure to pay the rent.

The appellant, still dissatisfied with the decision of both courts below, preferred the instant appeal to this Court by lodging a notice of appeal on 19/10/2016. It, however, transpired that till the date when the appeal was called on for hearing on 14/2/2020, there was no memorandum of appeal filed by the appellant in terms of the imperative provisions of rule 72(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). At the hearing of the appeal before us, the appellant appeared in person and unrepresented whereas both respondents could not enter appearance due to failure to be served with the notice of hearing. At the outset, the appellant, having realized that he had not annexed to the appeal a certificate on points of law which is issued by the High Court, sought leave of the Court to withdraw the appeal with leave to re-file it upon obtaining the same. He attributed that deficiency with the High Court's failure to avail him with a copy of the ruling denying him that certificate so that he could take the necessary steps before lodging the notice of appeal.

However, as hinted above, we wished to satisfy ourselves whether the appeal before us was amenable to be withdrawn on account of the appellant's failure to enclose the certificate on point(s) of law and also failure to lodge a memorandum of appeal in terms of Rule 72(1) of the Rules. For those reasons, we decided to proceed with the hearing of the appeal so as to determine whether the appeal was competently before us and could be withdrawn. We accordingly invited the appellant to address us on those anomalies. Unhesitant, the appellant conceded that he did not obtain a certificate on point(s) of law and did not also file a memorandum of appeal. As a way out of the bottleneck, he sought leave of the Court to withdraw the appeal so as to pave way for him to pursue all the necessary steps to obtain a certificate on points of law and then lodge a memorandum of appeal according to law. We are mindful of the legal requirement under Rule 80(1) of the Rules that parties to an appeal are entitled to be present at the hearing of the appeal and in terms of rule 80(6) of the Rules we could have exercised our discretion to adjourn the hearing of this appeal on account of the respondents having not been dully notified

to appear. But we refrained from taking that course for the reason that the appellant's appeal before us is incompetent for two reasons as we shall soon show. The first defect is that there is no certificate on point(s) of law certified by the High Court. It should be noted that this is a third appeal because the case originated from primary court. It is a mandatory requirement that a party intending to appeal to this Court must seek and obtain from the High Court a certificate on points of law involved in the appeal. The provisions of section 5(2)(c) of the Appellate Jurisdiction Act, Cap 141 R. E. 2002 (the Act) are unambiguous on that requirement. They provide that: - "no appeal shall lie against any decision or order o f the High Court in any proceedings under Head (c) o f Part III o f the Magistrates' Courts Act unless the High Court certifies that a point o f law is involved in the decision or order". The import of the above quoted provisions is that without a certificate on a point of law in proceedings originating from the primary courts, the appeal before the Court is invalid.

Further, in respect of criminal appeals to the Court from the primary courts, the provisions of section 6(7) (b) of the Act, in very clear terms provide that: - (7) "Either party- (b) to proceedings of a criminal nature under Head (c) of the Part III o f the Magistrates' Courts Act, may if the High Court certifies that a point o f iaw is involved, appeal to the Court o f Appeal." To insure that the requirement is complied with, a certificate on points of law certified by the High Court is, in terms of Rule 71(4) of the Rules, among the necessary documents to be included in the record of appeal. It is undisputed that the certificate on points of law is lacking in the present appeal. Faced with an identical situation in the case of Hamad Jumanne V. Republic, Criminal Appeal No.175 of 2007 (unreported), the Court struck out the appeal for being incompetent for want of a certificate on a point of law from the High Court and insisted that it is a prerequisite mandatory condition under the law in appeals originating from the Primary Court. [See also the case of 6

Rajabu Ngwada and Three Others V. Republic, Criminal Appeal No. 238 of 2010 and Daudi Mwakalinga and Another V.Republic, Criminal Appeal No.407 of 2013 (both unreported)]. The second defect which we sou motu raised, is that Rule 72(1) of the Rules requires that the Memorandum of Appeal be filed by the intending appellant within twenty-one days after service on him of the record of appeal. As for the consequences of failure to do so, Rule 72(5) of the Rules provides that: - "where no Memorandum o f Appeal is lodged within the prescribed time, the Court may dismiss the appeal or may direct that it be set down for hearing...." Like in the case of a certificate on point(s) of law, the provisions of rule 71(4) of the Rules imperatively require that a memorandum of appeal be part of the record of appeal. Although it is at the discretion of the Court to decide as to whether to dismiss the appeal or direct that the same be set down for hearing, we think we would have opted to hear the appeal had there been a certificate on points of law which would have availed the Court with the points of grievance. In its absence, we find it

hard to explore the appellant's complaint(s). We accordingly desist from hearing the appeal in the absence of both the points of law certified by the High Court and a memorandum of appeal. For the foregoing reasons, it is apparent that the appellant failed to comply with the mandatory requirements of the law hence rendering the appeal incompetent. The issue now becomes whether an incompetent appeal can be withdrawn as the appellant had proposed? It is now settled law that an incompetent appeal cannot be adjourned or withdrawn for, principally, there is nothing to adjourn or withdraw as we emphasized in the case of Ghati Methusela Vs. Matiko Marwa Mariba, Civil Application No. 6 of 2006 (unreported) in which a full Court categorically stated that: - "It is now established law that an incompetent proceeding, be it an appeal\ application, etc, is incapable o f adjournment, for the Court cannot adjourn or allow to withdraw what is incompetently before it: See Leons Ngalai Vs. Hon Justin Salakana & The Hon. Attorney General." 8

On the foregoing authority the remedy available to an incompetent appeal is to strike it out. We, in the circumstances, find the appeal incompetent and we accordingly strike it out. DATED at DAR ES SALAAM this 12th day of March, 2020 S. A. LILA JUSTICE OF APPEAL F.L.K. WAMBALI JUSTICE OF APPEAL W. B. KOROSSO JUSTICE OF APPEAL The Judgment delivered this 16th day of March, 2020 in the absence of the appellant and all respondents dispite dully served, is hereby certified as a true copy of the original. 9