Bahati Ndunguru @ Moses vs Republic (Criminal Appeal No. 519 of 2015) [2017] TZCA 1014 (9 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. 519 OF 2015 BAHATI NDUNGURU @ MOSES ................................................... APPELLANT VERSUS THE REPUBLIC •••••••••••••••••••••••••••••••••••••.••••••••••••••••••••••••••••••••••••• RESPONDENT 6 th & 11 th October. LILA, J.A.: (Appeal from the decision of Resident Magistrate Court of Ruvuma at Songea) (Dyansobera. PRM.) Dated the 13 th day of June, 2013 in Criminal Session No. 19 of 2012 JUDGMENT OF THE COURT This is the second attempt by the appellant, Bahati Ndunguru, tot challenge the decision in RM Criminal session case No. 19 of 2012 which was tried by the Principal Resident Magistrate with Extended Jurisdiction (W.P. Dyansobera PRM Ex.J). That .case fell in the hands of the Resident Magistrate with Extended Jurisdiction following the transfer made by the Judge In-charge (R.A. Teemba, J.) on 8th January, 2013 under section 1

256A of the Criminal Procedure Act, Cap 20 R.E.2002 (the CPA). The transfer was in respect of High Court Criminal Session case No. 4 of 2012. In that case the appellant was facing a charge of murder contrary to section 196 of the Penal Code, Cap 16 R.E. 2002. He was convicted as charged and was handed down a sentence of death by hanging. Aggrieved, the appellant appealed to the Court but it was realized that the notice of appeal suffered from an incurable defect as the appellant had not indicated the number of the case which he intended to appeal against. The appeal was accordingly struck out. Still believing that the Court could do justice to him, and having found himself late to lodge his notice of appeal and appeal, the applicant filed in the High Court an application for extension of time. That was miscellaneous Criminal Application No. 20 of 2015. On 11/11/2015, the High Court (S.M. Chikoyo, J.) granted the application and he was given fourteen (14) days within which to file his notice of appeal hence this appeal. At the hearing of this appeal the respondent Republic had the services of Hamimu Nkoleye, assisted by Ms. Hellen Chuma, learned State 2

·• Attorneys, while Mr. Jackson Chaula, learned advocate, appeared for the appellant who was also present in Court. It is worth mentioning here that earlier on the respondent Republic had raised two points of preliminary objection, a notice of which was filed in Court on 4/10/2017. The practice demanded the objection be heard first. However, after a short conversation with the Court, Ms Chuma opted to withdraw that notice of objection. Ms Chuma, did not sit back. She, instead, raised the attention of the Court on the apparent anomaly obtaining in the record of appeal that while the case, the decision of which is subject of this appeal originated from the Resident magistrates' Court where it was tried by a Resident Magistrate with Extended Jurisdiction, the application for extension of time to appeal to the Court was sought and granted by the High Court. She was emphatic that it was not proper in view of the provisions of section 11 (1) of the Appellate Jurisdiction Act, Cap 141, R.E. 2002 (AJA) which requires the application for extension of time be sought in the court which made the decision subject of appeal. She was of the view that as the case was heard and determined by a Resident Magistrate with Extended Jurisdiction 3

seating in the Resident Magistrates' Court, then the application for extension of time also ought to have been filed, heard and determined by that very court not the High Court. She accordingly urged the Court to strike out the appeal for being time barred as the order of the High Court granting extension of time is a nullity; hence it is as if no extension of time was granted. On his part, Mr. Chaula, readily conceded to the anomaly raised by Ms Chuma. He said after the Court had struck out the appellant's appeal, then the appellant was obliged to lodge his application for extension of time to file notice of appeal and appeal to the Court which convicted and sentenced him, that is the Resident Magistrates' court where it was to be· heard by a Resident Magistrate with Extended Jurisdiction. He said by lodging such application in the High Court the appellant was wrong as he contravened the requirements of section 11 (1) of AJA. He painfully, urged the Court to strike out the appeal so that the appellant may comply with law by filing his application for extension of time before the court which convicted him. 4

·• On our part, we fully associate ourselves with the views expressed by both the learned State Attorney and the learned counsel. Before we determine the merits of this appeal we wish to explore the resultant effect of a case being transferred to the Resident Magistrates' court exercising extended powers. As alluded to above, the Judge In-charge of the High Court at Songea exercising powers under section 256A of the CPA, transferred High Court Criminal session case No. 4 of 2012 to be tried in the Resident Magistrates' court presided by a Resident Magistrate with extended Jurisdiction (W.P. Dyansobera, PRM). As to what are consequences of such transfer, the Court in the case of Elly Millinga Vs Republic, Criminal Appeal No. 268 of 2014 CA (unreported) stated:- ''In essence we are of the opinion that, when a Resident Magistrate is conferred with extended jurisdiction to entertain a specific hearing of a case or an appeal in the High Court, his status and that of the Court to which he has been assigned to sit does not change and make him as a judge or sitting 5

in the High Court, he is merely deemed to be a Judge or deemed to sit at the High Court. " The Court went on to state that:- "That is why once a formal order of transfer has been made, the transferred appeal shall be registered in the court of Resident Magistrate, given a fresh number and be heard and determined in that court. Thereafter, an appeal from that decision of that court lies directly to this Court. " The import of the above holding is simply that when a case is transferred to the Resident Magistrates' court so as to be tried by a Resident Magistrate with Extended Jurisdiction nothing remains in the High Court. The hearing and determination of that case is to be done in that court and the appeal therefrom lies directly to Court. Reverting to the present appeal, extension of time to file a notice of appeal and appeal to the Court is governed by the provisions of section 11 ( 1) of AJA. That section provides: 6

.. "11-(1) subject to sub-section (2), the High Court or, where an appeal lies form a subordinate court exercising extended powers, the subordinate court concerned, may extend the time for giving notice of intention to appeal from a judgment of the High Court or of the subordinate court concerned, for making an application for leave to appeal or for a certificate that the case is a fit case for appeal, notwithstanding that the time for giving the notice or making the application has already expired." It is apparent that the High Court and the Court have concurrent jurisdiction in the exercise of powers conferred under section 11(1) of AJA .. Similarly, a subordinate court exercising extended powers has powers to extend time in respect of a matter it had tried in that capacity. Elaborating on the application of section 11(1) of AJA and Rule 47 of the Rules, the Court in the case of Mkunazini Shipping Enterprises Vs Said Khamis Hamed, ZNZ Civil Application No. 5 of 2012, stated:- 7

"Section 11 ( 1) of the Appellate Jurisdiction AcC Cap 141 R.E 2002 (the Act) to be read with Rule 47 of the Rules is very clear. It says where an appeal lies from a subordinate court exercising extended powers, that subordinate court and not the High Court as contended by Mr. Abdallah has powers to extend the time for the giving not only the notice of appeal but also granting an application for leave to appeal as well as to certify whether it is a fit case to come to this Court on appeal. " Given the above legal position there is no doubt that the appellant ought to have had filed his application for extension of time to file the notice of appeal and an appeal before the Resident Magistrates' court exercising extended powers not the High Court. It follows therefore that it was improper for the High Court to entertain that application on account of lack of jurisdiction. In the circumstances, the order by the High Court granting extension of time was invalid. Exercising the powers of revision conferred to this Court under section 4 (2) of AJA, we hereby revise the 8

proceedings and order of the High Court in Miscellaneous Criminal Application No. 20 of 2015 and proceed to nullify them. The usual consequences following nullification of the High Court proceedings and order granting extension of time is that no order for extension of time existed. The notice of appeal in the record was thus filed out of time. As, in criminal cases, under Rule 68 (1) of the Rules it is the notice of appeal which institutes an appeal, then this appeal automatically becomes incompetent for want of a valid notice of appeal. In fine, the appeal is incompetent. It is hereby struck out. DATED at IRINGA this 9 th 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 cop of the original. E. . DEPUTY RAR COURTO EAL 9