Nicas Ngonyani vs Republic (Criminal Appeal No. 514 of 2015) [2017] TZCA 945 (13 October 2017)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA ( CORAM: MJASIRI, J.A.. MMILLA. J.A.. AND LILA, J.A.^ CRIMINAL APPEAL NO. 514 OF 2015 NICAS NGONYANI ...................................................................... APPELLANT VERSUS THE REPUBLIC...................................................................... RESPONDENT (Appeal from the decision of High Court of Tanzania at Songea) (Mackania, JJ dated the 17th day of October, 2000 in Criminal Appeal No. 78 of 1999 JUDMENT OF THE COURT 10th & 13th October, 2017 LILA. J.A.: This is a second appeal. Nicas Ngonyani, the appellant, was charged and convicted by the District Court of Songea at Songea of the offence of rape contrary to section 130 and 131(1) of the Penal Code, Cap 16 R.E. 2002 as amended by sections 5 and 6 of the Sexual Offences Special Provisions Act, 1998 (SOSPA). His first appeal was dismissed by the High i

Court (Mackanja, J. )(Rtd). Aggrieved he has preferred this appeal to this Court. At the hearing of the appeal the respondent Republic had the services of Mr. Shabani Mwegole and Amina Mawoko, learned State Attorneys, while the appellant appeared in person, unrepresented. At the commencement of the hearing of the appeal Mr. Mwegole, sought leave of the Court to withdraw the points of preliminary objection the notice of which was filed on 9/10/2017 on account of his failure to comply with Rule 107 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). We granted the prayer. The above notwithstanding, the Court, at the outset, wanted to satisfy itself on the propriety of the dismissal order made by the High Court (Mackanja, J.)(Rtd) in Criminal Appeal No. 78 of 1999 on 17/10/2000. We accordingly invited the parties to address the Court on that point. Mr. Mwegole was not hesitant to argue that it was improper for the High Court to dismiss the appeal. The reason he gave was that the appellant's appeal was not heard on merits as it was dismissed on account of there being no notice of intention to appeal filed by the appellant which was a contravention of section 361 (1) of the Criminal Procedure Act, Cap

20 R.E. 2002 (the CPA). As the presiding judge had found that the appeal was incompetent for want of notice of intention to appeal, the appropriate order was to strike out the appeal, he said. By dismissing the appeal, Mr. Mwegole insisted, it implied that the judge had heard the appeal on merit which was not the case. He asked the Court to invoke its powers under section 4(2) of the Appellate Jurisdiction Act, Cap 141, R.E. 2002 to revise and thereby nullify the proceedings and judgment of the High Court. Regarding the ruling and orders of the High Court (Manento, J.) in Criminal Application No. 78 of 1999 and not Criminal Appeal No. 78 of 1999 which is indicated in the ruling dated 2/3/2004 (also wrongly indicated as 2.3.2003), which declined to grant the appellant extension of time to give notice of intention to appeal, the ruling in miscellaneous Criminal Application No. 38 of 2012 (Fikirini, J.) dated 5/6/2012 and in Miscellaneous Criminal Application No. 15 of 2015 (Kwariko, J.) dated 19/11/2015 both of which granted the appellant extension of time to file notice of appeal, Mr. Mwegole stated that they should be revised and the proceedings and orders thereof should be nullified as they were based on an improper dismissal order of the High Court (Mackanja. J.). On his part, the appellant, a layman and unrepresented, was at one with the learned State Attorney.

Admittedly, we see no reason why we should not go along with Mr. Mwegole's submission. The crux of the matter centers on the High Court order dismissing the appellant's appeal. The record vividly shows that when the appeal was placed before Mackanja J. on 22/9/2000 he raised suo motu the issue whether the appeal was competently before him; thus:- "Court:- It seems that section 36 (a) o f the CPA (sic) was not complied with. So learned counsel are directed to argue the appeal on the merits together with the effect o f non-compliance with section 361 (a)(sic) o f the CPA. Mr. Waryuba to file his argument by 29/9/2000. Mr. Manyanda to do so by 3/10/2000. Reply, if any by 10/10/2000. Judgment reserved. (signed) J. M. Mackanja." We think the judge was referring to section 361(1) (a) of the CPA which requires a person aggrieved by the decision to lodge a notice of intention to appeal within ten days.

After the parties had filed their respective arguments as it was ordered, the High Court (J. M. Mackanja, J.) handed down the judgment on 1/3/2004. In it the grounds of appeal were not considered. Instead, the High Court confined itself in considering whether the provisions of section 361(1) (a) of the CPA were complied with. At the end it was satisfied that the appellant did not file a notice of intention to appeal as required under section 361 (1) (a) of the CPA. It went on to hold: "The appeal is dismissed upon the reason herein above given." (Emphasis added) It is crystal clear that the appellant's appeal before the High Court was not heard on merits. The appeal was found to be defective for not containing a notice of intention to appeal as mandatorily required under section 361(1) (a) of the CPA. That section states 361- (1) Subject to subsection (2) no appeal from any finding, sentence or order referred to in section 359 shall be entertained unless the applicant:- (a) Has given notice o f his intention to appeal within ten days from the date o f the finding sentence or order or, in the case o f a sentence o f corporal punishment only,

within three days o f the date o f such sentence..." No doubt, the appellant, by not filing a notice of intention to appeal, had contravened the above requirement of section 361(l)(a) of CPA. It was, for that reason, the High Court properly made a finding that the appeal before it was incompetent. What was the appropriate consequential order to be given by the High Court following the procedural flaw committed by the appellant? This is a crucial issue we herein proceed to determine. This issue need not detain us so much. There is a chain of the Court's authorities which categorically state that an incompetent appeal is struck out not dismissed. See Joseph Mahona @ Joseph s/o Maghembe Mboje vs the Republic, Criminal Appeal No. 215 of 2008 (unreported) and Ngoni-Matengo Co-operative marketing Union Ltd Vs Alimohamed Osman (1959) E.A. 577. In a similar vein, in the case of Bernard Balele Vs The Republic, Criminal Appeal No. 81 of 2011, (unreported) the Court stated clearly that:- " It is now settled law, that an incompetent appeal is struck out not dismissed. An order o f dismissal 6

implies that, a competent appeal has been heard on merit. Whereas an order o f striking out an appeal implies that an incompetent appeal has been disposed o f on account o f irregularities or defects therein." In the present matter the appellant's appeal was found to be incompetent for being defective. It lacked a notice of intention to appeal. The proper order to be given, on the authorities above cited, was an order striking out the appeal as righty argued by Mr. Mwegole. For the above reason we hasten to say that the High Court (Mackanja, J.) wrongly dismissed the appellant's appeal. That was a fundamental procedural error which had the effect of blocking the appellant from later on lodging a notice of appeal after seeking and being granted extension of time to do so. Such order occasioned injustice. For this reason, we hereby invoke the powers vested in the Court under Section 4(2) of the AJA and we proceed to revise the proceedings and judgment of the High Court (Makanja, J.) dated 17/10/2000. We hereby accordingly quash the proceedings and judgment of the High Court and set aside the dismissal order. 7

After carefully revisiting the record of appeal we have realized that the appellant fought hard to have his appeal heard on merit by applying for extension of time to lodge the notice of intention to appeal. He was, as indicated above, at first denied extension of time in Criminal Application No.78 of 1999 (Manento, J.) and later granted in Criminal Applications No.38 of 2012 (Fikirini, J.) and No. 15 of 2015 (Kwariko J.). All these applications were premised on the dismissal order issued by Mackanja J. As we have held that such order was improper and we have nullified it then the applications for extension of time which were either denied or granted miss legs to stand on as there remains nothing to appeal against. On this account, we hereby invoke the revisional powers we are clothed with by section 4(2) of AJA to revise the proceedings and orders in those applications. We accordingly quash the proceedings and set aside the orders in those applications. Given the circumstances, the attending consequences are that the situation reverts to the position that the appellant's appeal was not heard and determined by the High Court. The appellant can pursue his right of appeal before the High Court against the decision of the District Court if he still so wishes upon being granted by the High Court extension of time to do so. In case the appellant opts to initiate the appeal process we direct

the same be expedited considering the long time the matter has been in our courts. All said and for the aforementioned reasons we hereby strike out the appeal. DATED at IRINGA this 12th day of October, 2017. S. MJASIRI JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL S. A. LILA JUSTICE OF APPEAL I certify that this is a true codv of the oriqinal. DEPUTY REGISTRAR COURT OF i AL 9