Farijala Shabani Hussein and Another vs Republic (Criminal Appeal No. 274 of 2012) [2018] TZCA 832 (25 October 2018)

1NTHECOURTOFAPPEALOFTANZANIA ATDARESSALAAM (CORAM: MLJSSAr J. A., MKUYE]. A. And WAMBALI, J. A.) . ...... CRIMINALPPEAL.NO 274 OF 2012 . . . FARIJALA SHABANI.HUSSEIN AND ANOTHER ............................... APPELLANT VERSUS THE REPUBLIC ............................................................................ RESPONDENT (Appeal from the decisionof the High Court of Tanzania . .... at Dar es Salaam.) (Kaduri, J.) dated the 21st day of September, 2012 in Criminal Appeal No. 97B of 2011 RULING OF THE COURT V t & 30th October, P..IJCC,A. •i Ft I - U In the Resident Magistrate's. court of Dar es Salaam, at Kisutu, the appellants stood arraigned for eight counts. More particularly, the ciffences charged were conspiracy to commit an offence, contrary to section 384 of the.. PnaJ. Code {fi.rst. count); Obtaining reaisration. ..by.fa!se.....pc€.tences, as against the first appellant alone, cdntrary to section 309 of the Penal Code (second count), Forgery, contrary to sections 333, 335(d) (iii) and 337 of the penaLcode(th.ird count); For.gery, contraty:to.sections 333,335 (a) and 337 of the Penal Code (fourth count); Uttering false dOcuments, as against :1

• the second appellant alone, contrary to section 342 of the Penal Code (fifth count); uttering false documents, contrary to section 342 of the penal -code -(sith cOunt); stealing cOntrary'to sediöns.258.alld 265 of the Penal Gode r. ... ...............(Seventh count) and; Obtaining-credit by.false pretences (eighth • count)... The latter count was preferred in the alternative to the seventh count. The appellants -refuted the charge, whereupon the prosecution1ined up; nine witnesses and seventeen documentary exhibits in support of its case. The appellants gave affirmed testimony and put in evidence two documentary exhibits. On the whoie of the evidence, a panel comprising of three Magistrates [Kinemela PRM, Bampikya PRM and Mugeta SRM (as he then was)] found the appellants not guilty of the first -count and, accordingly, acquitted them. As regards the seventh count, the panel refrained from making any finding on it but, instead, determined the alternative eiçhth count to which the appellants were found guilty, convicted and each was sentenced to three years Arnprisonment. . In addition,, the presiding panel also convicted the appellants of the third, fourth and sixth counts to which they were, respectwely, each sentenced to five years imprisonment (third • ãnd fourth count) and three years imprisOnment (sixth count). 2

I. -, Mr. Kweka who commenced the respondent's arguments in support of the preliminary objection brought to our attention the impugned Notice which goes thus:- UINTHERESIDLNTMAGISTTECOURTOFDAR ESS4LAM ATKISL/TU. (In the matter of an Intended appeal.)

CRIMINAL CASE NO.41W 0-'2O08 FARIJALA SHABANI HUSSEIN . .......................................... APPELLANT RAJABU 5/IA BA NI MARANDA VERSUS THE REPUBLIC ........... ............................................. .. ......... RESPONDENT (Appeal from the decision of the District Court of by Hon Dated on ...................................in Criminal Case No. ......................... ) jrcr r)c AJ)IDCA ,vI._/1L.L.LJ (II ,1rrdii... TAKENOTICE that, named above appellants intends to appeal to the High Court of (T) at D 'Salaam against the decision of the Honourable S. Kinamela, F. Bampikya & Ev. Mgeta given on 23 r°' day of day May Whereby the appellant was convicted Of 30' - cts Forgely c/s 333335 (d) (iii) and 337 of the penal code 5th

• uttering false documents c/s 242 8 h ci; Obtaining credit by false pretence c/s 342 of the penal code and was sentenced to 5 yers imprisonment. The appeal is against both onvictionpepeoce. The appellant intends to be present at the hearinOfthE appeal. The address of the seivice of.the appellant is..- C/O officer in charge, Ukonga Central Prison, P. O.BOX 9091, DARESSALAAM. Dated at D 'Salaam this 24 day of May, 2011 4

With respect to the second and fifth counts to which the appellants stood individually arraigned, the first and second appeflants were found :flty convicted aFd,• rspetively, -sentenced to .:hree and two years imprisonment. The appellants were dissatisfied and preferred an appeal to the High Court whi•ch•1ound no cause to vary the verdict ofthe4riaQurt and the appeal was, accordingly, dismissed in its entirety (Kaduri, 3.) Still discontented, the appellants are presently at odds with the verdict of the first appellate court upon seven points of grievance. In response, the respondent has greeted the appeal with a notice of preliminary objection which is couched thus:- "The Notice of appeal from trial court (sic) to the High Court is defective for not properly (sic) titled." When the appeal was placed before us for hearing, the appellants were eepd by Mr. Majura Magafu, Iern 1didyqcate whereas the respondent Republic had the services of a consoitium of three learned Principal State Attorneys, haniel', :Mr. Joseph Pande, Mr. Tumaini 'iKweka' ad Ms. Pendo Makondo who were aisted by Mr. Peter: Maugo, learned State Attorney. 3

A pp el/a nt Sinatire Appellan 'ts Signature Appel/ant SinaLire Handed over to the Officer In charge II onga central Prison Dar es Sa/aam for u/s 363 of the CPA, cap 20RE002 this 2 ay of May, 2011 Officer Incharge Ukonga Central Prison (DSM) Lodged in the RMS KISI.JTU Court Registiy Officer at D 'SAL/lAM This 27 Day of May2011 U Court Clerk COPY TO. The registrar Hígh Court of(T) Dar es Sa/aam - For information." Addressing -us on the issue of contention, Mr. Kweka submitted that the impugned notice is improperly titled: - "IN THE RESIDENT MAGISTRATES COURT OF DARES SALAAM,- AT KISUTU.' the more so as I the same was destined to challenge the decision of the trial court in the High Court. More appropriately, he said, the notice of appeal should have been titled: "IN THE HIGH COURT OF TANZANIA...." The learned Principal State Attorney conceded though that the provisions of section 361(1) (a) of the Criminal Procedure Act, Chapter 20 of the Revised Edition 2002 of the laws (CPA) are silent as to how a notice of intention to appeal from the decision of a subordinate court should be titled or formatted. He, nevertheless, sought to rely on the unreported -dëcision of , this Court in 5

• . Criminal Appeal No. 480 of 2016 - The Director of Public Prosecutions v Sendi. Wambura and Three others to buttress his suggestion as to hOW the notice ofppeaI from a subordinatecourt to the High tCourt should be;titledorforrnafted.' .. It is noteworthy that, in the referred decision, the Court had to grapple with-..the.issue as to how the notice of inte.ntiontoappeal by the DPP under section 379 (1)(a) of the CPA should be titled. More particularly, in that case, the appellant DPP sought to impugn the decision of the high Court relating to bail. At the hearing of the appeal before the Court, a question arose as to the validity of the notice of appeal from the subordinate court to the l - licih Court which, incidentally, was titled: "I-n the District Court.." Having heard the contending arguments: from either side and, drawing inspiration from Rule 68 of the Court of Appeal Rules, 2009 (the Rules) the Court observed:- "Therefore, we propose to the relevant authority that the notice of intention to appeal from subordinate court to the High Court should have a pecific prescribed format and title In the High Court of Tanzania" although it should be f/led in the District. Court. as per section 379(1) (a) of the

This should also be the case for notice of appeal lodged under section 361(1) of the CPA by other appellants. " .. In the final event, the court invoked its revisional jurisdiction and nullified the decision of the High Court on account of the impugned notice of intention to appeal from the District Court to the High Court which was aJiidèd defective. To sum up his submissions, Mr. Kweka sought to capitalize on a portion- of the decision in DPP v. Sendi Wambura (Supra)- where the the under section 361(1) of the R4 by other appellants." Culling from the observation, the learned Principal State Attorney submitted: that a notice of intention to appeal under section 361(1) (a) just as well ought to be titled: "In the High Court of Tanzania". To that extent, he concluded, inasmuch as the impugned notice was wrongly titled, the High Court was, as a result, not properly seized with the appeaL Putting it differeotly, ; . -1 according to him, even the appeal before us would be misconceived being grounded upon incompetent High Court proceedings. Mr. Kweka then finally ijrged usto nullify the entire proceedings and judgment of the High 7

Court and, that being the position, the decision of the subordinate court tandsunassailed. The preliminary point of objection was strenuously resisted by Mr. Majura 'Magafu. To begin with, the learned counsel for the apeilahts :tOol the position that the observation in DPP v Sendi Wambura to the effect that the suggested mode oftit!ingcthe notice of intention to appeal equa!!y..:. applies to section 361(1) (a) of the CPA was only advisory to the authorities concerned and, to the extent that the issue before the Court involved section 379(1) (a)atid' not section 361(1) (a) the observation was, at best, obiterdicturn. Furthermore, Mr. Magafu added, the provisions of sections 361(1) (a) and 379(1)(a) of the CPA are materially different. For one, he said, whereas in terms of section 361(1) (a) the:requirement is for 'the desiring -"appeltant-te give date of the decision, under section 379 (1) (a) the requirement is for the DPP to give such notice within thirty days of the decision sought to be impugned. For another, he added, in the- wake of the amendment comprised in section 31 of the National Prosecution service Act, No. 27of 8

2008, a notice of intention to appeal under section 379 (1) (a) of the CPA institutes an appeal. In-sum, the learned counselfor the appellants similarly conceded that aside from the dictti of the cOiütih bPPvSendiWambura there iS, hitherto, neither a legislative provision nor a judicial pronouncement which lays down the particuiaiformat of a notice of intention to appea under section 361(1) (a) of the CPA. He distinguished the decision of the Court in the unreported Criminal Appeal No. 359 of 2014 - Republic v. Mwesige Geofrey and Añóther. That case, he said, exclusively dealt with the issue as to the .piace of fifing a notice of intention to appeal under section 361 (1) (a) as distinguished from its format. Mr. Majura was fi:nally of the view-that.the preliminary point of objection 1s.invalid and urged us to overrule it. Should we be minded to make provision for the format of a notice of intention to appeal under the provision, he cautioned, we should similarly make provision as to the time when the prescribed format should become operative. - In a brief rejoinder, Mr. Pahde submitted that should we be-minded to accept Mr. Magafu's suggestion that the Court's observation in DPP v. SeEidi Wambura with respect to 'section 361 (1) (a) of the CPA was 9

• obiter dictum, we should go further and intervene in our right and -adopt the prescribed format, if anything, for purposes of enhancing consistency and certaini9 in procedural requirements. HäViñg heard -the Jearhéd rival arguments with respect to the preliminary point of objection, we interjected two issues pertaining to the appeal presented before us and invited the cornments.Qfthe learned minds from either side. The- first issue related to the Notice of Appeal which appears at page 494 Of the record. In the Notice, the appellants are named as: "FARIJALA SHABANI HUSSEIN AND ANOTHER.' The second issue was with respect to the memorandum of appeal. it is common ground that the record of appeal was certified by the Registrar of the High Court on the31 May, 2018 and the same was -ndOrsed upon Receipt by the Court on the 10 th 3uiy, 2018. And yet, the memorandum of -äppeal-was-lodged-a-good-dea•l•-later on--the-2--Septem ber 7 2OO6--Our- concern was whether or not the memorandum of appeal was lodged belatedly contrary to- the specific stipulation of Rule 72 (1) of the Rules whkh requires an appellant to lodge the memorandum of appeal within - twenty one days after service on him of the record of appeal. . 10

• Upon our invitation, Ms. Makondo expressed at once that. t'he Notice of Appeal is incurably defective for improperly naming the second appellant:. "AND ANOTHER' in lieu of his name. ., The1eamed PrincipaL..... State Attorney submitted thatto..the extent that the appeal at hand, is joint, the misnaming vitiated the entire Notice as well as the appeal itself which stands to be struck out. As regards the second issue, Ms. Makondo was similarly of the view that the appeal stands to be dismissed under Rule 75 (5) of the Rules on account that the memorandum of appeal was filed well beyond the tenty one days prescribed by Rule 72 (1) of the Rules. Responding to the first issue of our concern, Mr. Magafu conceded that, in.&'ed, 'the Nbtke Of 'App . ë did not refer to' the second a'ppellant"by name. Neverth€Iess, the learned counsel for the appellant was quick to ----- rejoin--that--the .... misde-scriptioni-s-innoeuou-s, .... second.......--- ............... appellant is securely named in both the memorandum and the record Of appeal. On the second issue, Mr. Magafu'submltt.ed that, upon preparation, the record of appeal could not be served on the, appellants through the prison officers on account of the fact that the appellants were no longer in ii

• prison custody. He was personally served with the record of appeal a good deal later and, accordingly, filed the memorandum of appeal on the 26th Septrnber, 2018' When we pressed hirn td.disdose the.date when-he was.- served with the reord .of- appealMr Magafu..was. prevaricative d..oId; not recall the exactdate. Admittedly, there is no evidence of service and we, ourselves, could dcern from the record as to when, exactly, the learned counsel for the appellants was served, with the record of appeal. Addressing now the preliminary point of objection raised by the respondent, we deem it apposite to begin :by . extracting the relevant section 361 (l).(a) of the CPA which makes provision for the giving of a notice of intention to appeal:- "361 (1) Subject to subsection (2), no appeal from any finding, sentence or order referred to in section 359 shall be enteitained unless the appellant- (a) has given notice of his intention to appeal to the trial subordinate court within ten days from the date of the finding, sentence of corporal punishment only, within three days of the date of - such sentence. [Emphasis supplied.] . . . .. We think it i ap to. -áuse here; 'and obse.rve that- th bolded expression ".. to the trial subordinatecourt.." was iead into the 12

provision by the Court in Republic Vs. Mwesige Godfrey and Another (supra). it is, perhaps; pertinet if we suld o extract section 379(4) (a) of the CPA whlcFi mãkes' provisibn forä ftespoñding HOUCO of intention to appeal by the DPP as follows:- "77i7ubject to subsection (2), no appëaiYindei section 378 shall be entertained unless the Director of public Prosecutions or a person acting under his instructions:- ()has gJyp_notice of his_intention çppeaI to the subordinate court within thirty days of the acquittal iThdin9, sentence or order against which he wishes to appeal and the notice of appeal shall institute the appeals" [Emphasis suppUed]

• The - or instructiOns ..." and "... and the notice of appeal shall institute the appeal ..." were added intO the provision by the already referred Act No. 27of2008. ; 13

Culling frorn the provisions of section 361(1)(a), in particular, it is plain that the Paw.does' not 'make'any prescription of the format in which the notice 'c'f•intentidn to:a'ppeal should be.. Thus;:i'nfor instance; the.,. unreported Criniinal AppeaL.No.. 476 at 2007.- .:KaSSaJi..a.$habanL and Another v. The Republic, the Court made the following observation:- It It ought to be apprec/ated that jipder section 361 (it,)'á, of the Act the intended appellant is required to give" or dedare his intention and not to file" or lodge a notice of intention to appeal within ten days. Such notice may be oral or' in writing ' A corresponding observation was iater made in another unreported Criminal Appeal No. 262 of 2009- Mtani Alfred v. The Republic:- ttUnlike Rule 68(2) of the Court of Appeal RU/es, .2009 which requires an intending appellant to lodge a written notice of appeal, the provisions of section 361(1)(a) of the Act do not have such a requirement. An intending appellant is not required to lodge a written notice of appeal An oral notice of intention to appeal given to the trial court or the 'prison officer on admissIon into pt/son would normally suffice. 101

To sum up from the foreoing,a notice of intention to appeal under sedibn 361(1)(a) of the CPA may either be in writing or it may merely be in natureof ar trat 2 ir trUction by thedèsirous appeliantgivefltO thetrial ::icourt..or the prison if .i - iipo'nrespectively, his conviction::Or- admission into prison. What is more, it seems to us that the provisions of section 361(1) (a) of the CPA are slightly but materially at variance with those of section 379(1) of the CPA in that, unlike the latter provisions which stipulates that a notice of intention to . appeal institutes an appeal by the DPP, the egisiature did not deern it appropriate to make a similar stipulation with respect to the former provisions. To this end, we entirely subscribe to Mr. Magafu'sadvicethatthe - twoprovisions are-not quite/n par[materia-and 1 observation in DPP V Sendi to that extent, we. agree with. him that the Wambura to the effect that the prescribed format applies to section 361 (1) (a) as well was, at best, obiter dictum. in this regard, Mr. Pande invited us to embark on our own construction of section 361(1) (a) to which we are properly seized and niake provision forthe format of the notiçofappeal. We entirely agree, more particularly, given the . reality that parliament did not specifically 15

• , prescribe the fo.rmat,to,be taken by a written notice of intention to appeal. We are indeed; alive to truism that often times, either deliberately or in- advertently, Parliament enacts' provisions generally or with a vague :with'a view for thecoufts the course cJ ......... construction. As can be clear •dscerned from the learned rival arguments.from' either side, the pith of the controversy here lies not in the ambiguity of the provisions of section 361(1)(a) of the CPA as such, rather, it is.aroused by the apparent omission by the legislature to prescribe the format to be taken by a written notice of intention to appeal. Whereas the respondent takes the position that such not. ice should be titled: "In. the High Court of Tanzania 1 " . Mr. - -Magafu. forthe...ap.peIlants. is adamant...that the.. should be titledas it presently is, that is, in the subordinate court. unnecessarily detain us. Having prescribed the title: In the High Court of Tanzania with respect to the notice under section 379(1) (a) in the referred case of DPP Vs. Sendi-Wambura, for the purposes of enhancing consistency and certainty in the procedural requirements, we are minded ... . to adopt 'the format which was prescribed therein and, as such, a written 16

notice of intention to appeal under section 361(1)(a.) should, accordingly be titled: "In the.H•igh Court of Tanzania." We should, however, hasten to point out that the prescription we have jstnide Is uite new and was dbviousIy not àreiuiiCmént at the time when the appellants filed their wriften notice of intention to appeal. Being awaie f.the realities on the ground we order that the prescribed title should become operative six months from the date of the delivery of this ruling. That being the position, we are constrained to find and deem that the notice of intention to appeal by the appellants was competently so filed and the preliminary point .of obied ion is, accordingly, overruled given the stance of the law as it then stood. It is now opportune for us to consider and determine the two issues of concern which we raised suo motif. We propose to start with the disposable. As we have hinted upon, it cannot be ascertained from the iecocd of appeal as to when the same was served upon the appellants or their advocate'.'. From our reading 'of' Rule 72(1) and (5) of the 4ules the dismissal of an appeal 'on the ground of a belated lodging of the 17

memorandum of appeal is. conditional upon the service, on an appellant, of the record of appeal. In the absence of proof of the exact date when the appellants OrTheirädVdcätete served with the fecord ofappeal, the Ruie 72 .:(tof: the .:Rules cannot be taken into play •But,... seems to us that in this appeal, the bone of contention lies with the first issue which relates to the Notice of Appeal. Rule 68 (1) of the Rules provides thus:- "Any person who desires to appeal to the Court shall give notice in writing, which shall be lodged in tripilcate with the Registrarof the /-/i'h court at the place where the decision agaThst which, it is desired ofthedate.of.... that decision and the notice of appeal shall The Notice of Appeal at hand does not cite the second appellant by name, to which ailment Ms. Makondo submifted, in effect, that the Notice is invalid and, for that matter, the appeal itself has been rendered incompetent. We have .alrady.indicated the eent to which Mr. Magafu downplayed the defect. 18

On our part, we have specific regard to the requirements of the Rule from which we deduce that the Notice of Appeal should have cited the second appellant by name, failure of which it cannot be said that the :Notice of Appeal validy instituted - a.jointa.ppeaL The Notice of. Appeal so to speak, incurably defective and, in the result, the appeal has been rendered incompetent and, accordingly, the same is struck out. The appellants are at liberty to commence the process of a fresh Notice of Appeal in accordance with the law. It is so ordered. DATED at DAR ES S - ALAAM this 25 day of October, 2018 K. M. MUSSA JUSTICE OF APPEAL 19