Delifius Maxmillian @ Derick & Others vs Republic (Criminal Appeal No. 115 of 2018) [2018] TZCA 182 (31 August 2018)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MBAROUK, l.A., MKUYE, l.A. And WAMBALI, l.A.) CRIMINAL APPEAL NO. 115 OF 2018 1. DELIFIUS MAXMILLIAN @ DERICK1 2. HAMADI MABARAZA ~> ••••••••• APPELLANTS 3. DASTAN FULGENCE ! VERSUS THE REPUBLIC ..•••••.••.•••••..••.•••••.••..•.••••.•.•.....• RESPONDENT (Appeal from the decision of the High Court of Tanzania at Bukoba (Bongole,l.) dated the 16 th day of lune, 2017 in Criminal Appeal No. 63 of 2016). RULING OF THE COURT 30 th & 31 st August, 2018 MBAROUK, l.A.: When the appeal was called on for hearing, it transpired that Mr. Nestory Paschal Nchiman, State Attorney had earlier on 27th August, 2018 filed a notice of preliminary objection to the following effect:- 1 "1. The appeal before the Court is incompetent, for failure to indicate the nature of conviction in the Notice of Appeal. 2. The Appeal before the Court is incompetent, for being brought against the interlocutory order of the High Court." In this appeal, Ms. Jacqueline Evaristus Mrema, learned advocate, represented the appellant, whereas Mr. Nestory Paschal Nchiman, learned State Attorney represented the respondent / Republic. Ms. Mrema readily conceded to both objections raised by the learned State Attorney. Basically she agreed that the notice of appeal lodged by the appellant has failed to state the nature of the finding against which it is desired to be appeal against as required by Rule 68(2) of the Tanzania Court of Appeal Rules, 2009 (the Rules). She therefore urged us to find the notice of appeal defective and the appeal 2 incompetent. For that reason, she prayed for the appeal to be struck out. On his part, after the learned advocate for the appellant readily conceded to the preliminary paints of objection, Mr. Nchiman prayed for the appeal to be struck out. He further prayed to withdraw his 2 nd preliminary point of objection, because the 1 st preliminary objection alone could dispose of the matter, taking into account that under Rule 68 (1) of the Rules it is the notice of appeal which institutes an appeal. In its various decisions, this Court has emphasized the requirement to comply with Rule 68 of the Rules, to which the same reads as follows:- " 68.-(1) Any person who desiresto appeal to the Court shall give notice in writing/ which shall be lodged in triplicate with the Registrar of the High 3 Court at the place where the decision against which it is desired to appeal was given/ within thirty days of the date of that decision/ and the notice of appeal shall institute the appeal. (2) Every notice of appeal shall state briefly the nature of the acquittal conviction/ sentence/ order or finding against which it is desired to appeal and shall contain a full and sufficient address at which any notices or other documents connected with the appeal may be served on the appellant or his advocate end. subject to Rule 17, shall be signed by the appellant or his advocate. 3) N/A 4) N/A 4 5) N/A 6) N/A 7) N/A." It is therefore necessary for the appellant to consider the requirement to indicate in his / her notice of appeal the matters stated in Rule 68(2) of the Rules. This Court in the case of Nichontinze sl « Rojeli v. Republic, Criminal Appeal No. 117 of 2014 elaborated on the matters to be contained in the notice of appeal as follow:- "1) Indicate a correct date of the judgment intended to be appealed against; 2) Insert the name of the High Court judge and number of the case to be appealed against; 3) State briefly the nature of the acquittal conviction/ sentence/ orderorfindmgagamstwhkh it is desired to appeal. " (Emphasis added). 5 Non-compliance with those mandatory requirements of Rule 68(2) of the Rules renders a notice of appeal defective and an appeal incompetent. So as to appreciate what has transpired in the notice of appeal in this appeal, we have found it prudent to reproduce the said notice of appeal to which it has failed to state the nature of the finding of the High Court decision sought to be appealed against. The same appears as follows:- ''IN THE COURTOF APPEAL OF TANZANIA ATBUKOBA CRIMINAL APPEAL NO. 115 OF 2018 1. DELIFIUS MAXMILLIAN @ DERICK.•••••••••••••••••••••••••• 1 sT APPELLANT 2. HAMADI MABARAZA••••••••••••••••••••••••••.••••••••••••••••••• ;!"D APPELLANT 3. DASTAN FULGENCE ••••••••••••••••••••••••••••••••••••••••••••••••• :JRD APPELLANT VERSUS THEREPUBLIC••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the judgment of the High Court of Tanzania at BUKOBA [Honourable Judge S. B. Bongole,J.j dated 16.6.2017 in Criminal Appeal No. 63 of 2016). NOTICE OFAPPEAL TAKE NOTICE that DELIFINUS s/o MAXMILIAN @ DERICK, HAMADI s/o MABARAZA and DASTAN s/o FRUGENCE being dissatisfied with the decision of Honourable Judge S. B. Bonqole, J. given at Bukoba 017 the 1(fh day of June 2017, appeals to the Court of Appeal of Tanzania against the whole of the said decision as decided. The appellants intends to be present at the hearing of the appeal. The address for service of the appellants is.' DELIFINUS MAXMILLIA~ HAMADI MABARAZA and DASTANFRUGENCE, P.O. BOX 451/ BUKOBA. 6 It is intended to serve copies of this Notice to: A TTORNEY GENERAL'S CHAMEBERS P. O. BOX 992, SUKOSA. Dated this 1!J h day of June, 2017. Signed .... pt Appellant, signed ..... e= Appellantr Signed .... Jd Appellant To: the registrar of the high Court of Tanzaniaat Bukoba Lodged in the High Court of Tanzaniaat Bukoba on1!J h day of June, 2017. REGISTRAR. /I There is no doubt that, in the above cited notice of appeal the nature of the finding of the High Court sought to be appealed against was not stated. Pointing out the consequences of the defect found in the notice of appeal this Court in the case of Ramadhani Rashid v. Republic, Criminal Appeal No. 22 of 2008 (unreported) where the decision of Abeid sl» Seif v. Republic, Criminal Appeal No. 228 of 2013 (unreported) was cited with approval, it was stated as follows:- " it is now well settled that it is imperative for the Notice of Appeal to state the nature of the 7 conviction, sentence, order or finding of the High Court against which it is desired to appeal Such is the mandatory requirement comprised under Rule 68(2) of the Tanzania Court of Appeal Rules/ 2009." (Emphasis added). There is no doubt that in the instant appeal, the notice of appeal has failed to state the nature of the finding of the High Court sough to be appealed against. It is now a trite law according to the decisions of this Court that the consequences of such a defect is to render the notice of appeal defective and appeal incompetent as the mandatory requirement under Rule 68(2) of the Rules has been offended. Taking into account that in Criminal Appeals under Rule 68(1) of the Rules it is the notice of appeal which institutes an appeal, and as we 8 have found that the same is defective, we find the appeal incompetent and hereby strike it out. It is so ordered. DATED at BUKOBA this 31 st day of August, 2018. M.S.MBAROUK JUSTICE OF APPEAL R. K. MKUYE JUSTICE OF APPEAL F. L. K. WAMBALI JUSTICE OF APPEAL I certify that this is a true copy of the original. 9