Nicas Ngonyani vs Republic (Criminal Appeal No. 514 of 2015) [2017] TZCA 993 (12 October 2017)

.,_: IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CORAM: MJASIRI, J.A~. MMILLA, J.A., AND LILA,_J.A.) • • I • • CRIMINAL APPEAL NO. 514 OF 2015 . NICAS NGQNYANI •••••••••••••••••••••••••••••••••••••••••••••••••••••a ■■■ 11. ■■.■ 11 ■■■■ !11 ■■■ nl' ■■ APPELLANT VERSUS : . .·.--THE.REPUBLIC · .............................. · .........................· .......... "·••!11••111·•··· RESPONDENT (Appeal from the decision of High Court of Tanzania at Sotigea) (Mackanja, J.) 10 th & 13 th October,.2017 LILA, l.A.: dated the 17 th day of October, 2000. in Criminal Appeal No. 78 of 1999 ·················· . . . . . JUOMENT OF THE COURT • This is a second appeal. ~Ni.cas 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 ~6 R.E. 2002 as amended by sections 5 and 6 of the Sexual Offences Special Provisions Act, 19.98 (SOSPA). His first appeal was dismissed by the High 1

Court (Mackanja, J. ·)(Rtdf Aggrieved he has preferred this pppeal to this Court. At the hearing of the appeai ·the respondent Republic had the . . ' . ,·. . ' . ' ,·. . ' ' . services of Mr. Shabani Mwegole · and Aniina ·Mawoko, learned State ' . .! Attotneys, while ·the appellant appeared in person, an represented. ! I ' I . • I . . . . . . . . .· ._. \ At the commencement of the . hearing bf _the appeal Mr. Mwegole, j J . . . • . ' sought leave of the Court to· withdraw· the points o( prelimir.iary .objection . i ' . . .· ·. . .. ' ' i • . . ' . . ' : th~ hotice of which was. filed on 9/10/2017· cin. _' acount of .his failure to cornily with Rule 107 (1) of the Tanzania court of Appeal Rules, 2009 (the ; ' . ' ' ' ' ,• . ~ . i: ' ' . . I . . . . ·. ·. •.-· Rule). We grantedthe prayer. · .. ·. . : ,, ·• . •·. · ... ·· .. · .· · ___ The above 'notwithstanding, the C_O\Jrt;'i'Je' outset,' _··wanted' to . . ,, .. - . . ' . satii itself on the·propiet/ofthe·'dis·m,ssalori;_maae by the 'High cburt , 'C . ,.•. ·: •, , ' . . . . . ' .•. - .. • . ·-· ...• ' ,t; • . . . . . . (Ma lkanja, J.)(Rtd)jn (:rimrna1 Appeal No. 78 qf !999 On 17/1()/2000: We acc6fdingly invited the parties to address 'the C:ourt on that poii:1t· .. · _ . I 1' • i . •. •' j • • • • • . • • • : . • •, • • • • • •. -. • • . · . - Mr.· Mwegole was not hesitant to argue that it was improper for the 4' ' • , > ,• , , •: · a Hig_h l Court to dismiss the appeal. The reason he gave was that the . i . . . 1 ' ' ' . ' ' . ' ·. '. ; : : ; . : . . ' .. ,, : ' appeJlant's appeal was not heard on merits as it was dismissed ·on account ~ ' . ! .. I J . . ' · of thre being no noti.ce of intention to appeal filed· by the appellant which j . . . . • ' ; ' was: contravention of section 361 (l) of the Crim ina I Proce9u;~ A~t: Ca; · i ! 'i i i .2

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' 20. R.E. 2002 (the CPA).- As the presiding·judge had found thatthe appeal . ··.was incompetent for want of notice of intention to appeal, the appropriate : , .... · . oroer was _to strike out the appeal, he said. By dismissing the appeal, Mr. · -Mwe'gple 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 1· ' • • • • · .· sction 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. i . . . . " ·: .. 1, .. ' _·. · .. i Regarding the ruling and orders of .the High Court (Manento, J.) in j . . . . ·a . . . . . . . ·1 . Crin:1nal Application No. 78 _of 1_999 and not Criminal Appeal No. 78 of 1999 i . •.:-.,. :·,- ·which is indicated in the ruling dated.2/3/.2004 (also wrongly indicated as i . . . .. ' . j : ,· ':' · .. 2;3 .. 003), which ~~dined: o grant,he appellant extensin o .. f time to give . ·. ,-, :f1oti¢. of intention to appeal', the . ruling in miscellaneous Criminal . i . I . AppHcation No. 38 of 2012 (Fikirini, J.) dated 5/6/2012 and in j . . . i 'Miscellaneous Criminal A_pplication No. 15 of 2015 (Kwariko, J.) dated I . . . . : , '►. .: . . . .. ' . . . . . l9/1i1201s both of which granted the appellant extension of time to fi!e -'.l . . . . , . · .. · . ·. . . . . · ... _ · notic of appeal, Mr. Mwegole stated that they should be revised and the i . . - . . . ' . - . . . . . _-pocedings and orders thereof should be nullified as they were based on an irl)proper dismissal order of the Hfgh Court (Mack~nja. J.). -' l -1 i j On 11is part, the appellant, a layman and unrepresented, was at one j • i with the learned State Attorney. 3

' 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 !ssue whether-the appeal was competenly before him; thus:- "_Court:""' It ;seems that section 36 (a) of the CPA (sic) was not complied with. So. learned cou.nsel are directed to argue the appeal on the merits together with the effect of non-compf!ance with section _361 (a}(sic) of the CPA. Mr Waryuba to file his· argumerlt · by . - . ' • • • • •• • • I 29i9/2000. Mr. ·· Manyanda to do so by· 3/1 o-j!'f;oo. Reply, ii any by 10/10/2000. Judgment reserved. r . . .. ,· . . :· ..... ·(signed)- J-: M. Mackanja. "_ · We think the judge was referring to seion 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. 4

' After the parties had filed their re?p~ctive · c;1rguments as it· was ordred,_ the .High Court (J. M. Mackanja,. ].}handed down the judgment oh 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 e::ompl.i_ed with. At the_ end it:was satisfied that_ . . . - . . . . th appellant did not file a notice of intention to 9 ppe·a1 as required under _ section 361 (1) (a) of the.CPA. It. went on to hold: .. :- . "The appeal is dismissed upon the, rec1son herein . . . . . . ' . . ' . '' ~ ' . . -: . : ... :·. . •. . . . . above g!ven. '' (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_ 9efective for not .·.: . . .. . . . . .. · co_n,taining a notice of intention to appeal as .n:ianda·torily required under ' : ' ., . . . -· . . . . . .:· ,. . . ' ·. ~ ~ 7: . . ·' . . section 361(1) (a) of the CPA: That section_ state_$:- 361- (1) Subject to subsection (2}'np appeal frotfJ any finding/ sentence or order referrr;.d to in section 359 shall-be entertained un/es~ the applicant:- ( a) ·ftas given notice 6_f·his intention lo appeal ' , .... within ten days from the date· of the finding . . sentence of . order or, in the - case . of a. - s~ntence of . corporal · punishment on!½:·.- . 5

.within_ three days of the date of such sentence .... ''- No doubt, the appellant, hy not filing a notice of intention to appeal,. • l • . . 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 . . . .. .;;f:=:'7- ·- . .. . . . . . . What ;was:-the· appropriate consequential order to be given by the ., .. i:i~~- . . · High Court _f,g!Jqwing the procedlirl ·flaw committed by the appellant? This .c -1<- . . . · is a crucial iss,tife·='\tie herein proceed to determine'. . . .. . This issue· need not detain us so· much. There is a chain of the , ' .· ,• :·. ~ ... . . Court's autho·rities whkh 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-Materigo Co~·operative marketing Union Ltd . . . . . ' Vs Alimohamed ·Osman (1959) E~A. 577. In a sirr,ilar vein, in the case of . . ' . Bernard Balele Vs The Republic, Criminal Appeal No. 81 of 2011, . . . (unreported) the.Court stated clearly that:- " I,t is now ~sett/ecf. Jaw,, that ,an incompetent appeal is struck out not dismissed An 01der of dismissal 6

.. . •: .. implies that, a competent appeal has- been heard on merit Whereas an order of striking out an appeal implies t_hat" · an incompetent appeal has been disposed ofon account of 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 dimissed the appellant;s . appeal. . That was a •• • ( '. ,.., .. f ; • • •.. fundament.al procedural_ error. which. had · the effect of . blocking. the . ' ' ' ' < f I 0. • "O , .. ;, ' .. •appellant from later. on lodging a notice of appeal after seeking· and being '" ''t ,, 1 granted extension of time _to do so. Such orqer occasioned injustice. For . - .. . ! . . •.. 1' _, • " ~ tis reason, we hereby invoke the. powers . Vested 'i'n the Court under ' • • 9 • '. ., • .• _ Section. 4(2) of the AJA and. we proceed to· revise the proceedings and . ' . . .. ,' .jqdgment 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 . extnsion of time to lodge the notice of intention to appeaL He was, as . tndk:ated above, at first denied extension of time in Criminal Application i . . . No.78 of 1999 (Manento, J.) and later granted in Criminal Applications ! . . . .· . . . . . I • . No.8 of 2012 (Fikirini,. J.) an No. 15 of ·2015 (Kwariko J.). · All these i • app(cations were prern1sed on the dismiss! qrder issued by Mackanja J. : As:·.; e have held · that such order-_ was improper and we have nullified it i

• · - , the : the applications fo~ extension .of time which were either denied or· - • : ganed miss legs to stand on as there remains nothing· to·appeal ·against.· i . ' . .. . . ' . . ' . - -On,his account, we hereby inVoke the revisional powers we are clothed _ • wit~j by s'ection 4(2)Qf AJA to r'evise the Proceedings and orders in those

• ;· applcations. We accordingly-·quash th· proceedings .. and set aside·-the i i . . . . . ' . . ' . . orde·rs in those applications. . _ · _ Given the circumstances, the attending cnequences, are that the I . . sita,ion reverts -to the position that the apellafs appeal was not heard j . . . . . . . . . . . . . ... ' ' . ·_ . . . I . .

• • -and etermined by the High Court The appellant can pursue his right of . ·; ; l . . . appep~ before the High Court against the decision of the District Court if tie I . . J : . • • still ~o wishes upon being. granted by the H.igh. Court extension of time to . . do s · . In case the appellant opts to initiate the appeal process we direct 8

' ' - -the sani~ be ·expedit~d-· considering the· fong time the matter- has· been' in·_ our courts. . All said and for the aforementioned reasons we here.by strike out the appeal. .DATED at I_RINGA this lih day of October, 2017; • fi:,\ ,· •• ' S. MJASIRI .. JUSTICE OF APPEAL . · .. B. M. MMILLA . ·.• . JUSTICE OF APPEAL S. A. LILA JUSTICE--OF APPEAL I certify that this is a true copy ,f the original. . ·• . . .. \· . , I . \ \ . : ' . :s;w·, ·EI DEPUTY.REGISTRAR . . COURT OFAP; AL ·.· "" if 9