Seleman Hassan Maukula vs Republic (Criminal Appeal No. 7 of 2014) [2014] TZCA 2378 (28 November 2014)

. . . IN THE COURT OF APPEAL OF TANZANIA ATMTWARA (CORAM: BWANA, J.A., ORIYO, J.A., And KAIJAGE, J.A.) CRIMtNAL APPEAL. NO. 7 OF 2014 SEL.E'MAN tlASSAN MAUl<ULA.- .. : .... ~ ........... ~ ............................... APPELLANT I.'·. :· ·> . . ··.VERSUS· THE REPUBLIC .......................................................................... RES PON DENT (Appeal from the decision of the High Court of Tanzania at Mtwara) (Mipawa, J.) dated the 8 th day of May, 2013 in Criminal Appeal No. 65 of 2011 RULING OF THE COURT 28 th November & ist December, 2014 ORIYO, J.A.: The appellant was convicted of rape on his own plea of guilt before the District Court of Lindi at Lindi. Consequently he was sentenced to life imprisonment in terms of section 131 (3) of the Penal Code, Cap 16, R. E. 2002, in that the victim of rape was a girl below the age of ten years. His appeal to the High Court against the conviction was dismissed. However, his appeal against the sentence was partly allowed on the finding by the first appellate court that the age of the victim of rape was uncertain, as it was not established by the evidence on record. The learned first appellate judge set aside the sentence of life imprisonment imposed by the trial court and substituted it with a sentence of thirty (30) years imprisonment. 1

Still feeling aggrieved he has come to this Court on a second appeal. When the appeal was called on for hearing, the appellant appeared before us in person, without legal representation. The respondent Republic was represented by Ms. Mwahija Ahmed, together with Mr. Ladislaus Komanya, learned State Attorneys. Ms. Mwahija Ahmed, addressed us on the following legal points:- One, that the appellant had lodged an application in the High Court for the extension of time to enable him to lodge a Notice of Appeal and a Memorandum of Appeal to this Court. The application was granted on 4/12/2013. The appellant was granted ten (10) days within which to lodge a Notice of Appeal and fourteen (14) days thereafter he was to lodge a memorandum of appeal. However, the learned State Attorney observed that the record of appeal shows that the Notice of Appeal was lodged on 23/10/2013, while the memorandum of appeal was lodged well beyond the period of 14 days extension ordered by the High Court. The learned State Attorney contended that, in terms of Rule 68 (1) of the Court Rules, the appeal before us is incompetent. She urged us to strike it out under Rule 4 (2) (b) of the Court Rules. 2

In terms of Rule 68 (1) of the Court Rules, 2009, the appellant in the . present appeal was required to lodge a Notice of Appeal to the Court within thirty (30) days of the date of the High Court decision, which was delivered to the parties on 8/5/2013. Having failed to do so, he applied to the High Court for extension of time to lodge a notice of appeal and a petition of appeal out of time. This was done on the 22 nd day of July, 2013. The High Court (Mzuna, J.), sitting at Mtwara granted the application on the 4 th December 2013, in the following language found at page 39 of the Record:- "The applicant should file the notice within ten {l OJ days from today. Then he should file the Memorandum of Appeal within 14 days/ thereafter. Signed// To appreciate the submissions by the learned State Attorney that the appeal before us is incompetent we averted our attention to the Notice of Appeal appearing at page 40 of the record. The Notice of Appeal on Form "B" under Rule 61 of the then 1979 Court Rules, (currently Rule 68, Court Rules, 2009), is stamped "23/10/2013" as evidence of the date on which 3

the notice of appeal was duly presented and lodged in the High Court registry at Mtwara. To us, in the abscence of any explanation to the contrary, the Notice of Appeal on Record was filed before the appellant was granted leave on 4/12/2013 by the High Court to file it out of time, within ten days of the order. The notice of appeal ought to have been filed on or before 14/12/2013. As for the Memorandum of Appeal to this Court which bears two different date stamps, that of "1/8/2014" and "12/6/2014". Both dates, whether be it in July or August, 2014, the Memorandum of Appeal was filed miserably out of the period of 14 days ordere'd by the High Court. Ordinarily, in terms of Rule 72 (1) of the Court Rules, the appellant was to lodge the memorandum of appeal within twenty one days after receipt of the record of appeal. As he failed to comply within the prescribed time, the High Court granted him 14 days within which to lodge the memorandum of appeal after the Notice of Appeal was lodged. It is obvious from the record that both the notice of appeal and the memorandum of appeal were lodged out of the time ordered by the High Court. The issue here is on the consequences that arise from the situation as portrayed by the learned State Attorney. 4

Addressing us on these legal issues, the learned State Attorney expressed the view that there is no option left to retain and save the impugned notice of appeal and the memorandum of appeal on record, both having been lodged out of time. The appellant on his part, reminded us that he is a prisoner with limited freedom. He urged for wisdom to prevail so that he may have his day in Court and vindicate himself. We have taken time to consider the submissions by the learned State Attorney and the relevant laws, and we are in full agreement with the position stated by her. The notice of appeal on record is incurably defective having been filed out of the prescribed time and as duly extended by the High Court. In terms of Rule 68 (1) of the Court Rules, in criminal appeals, it is the notice of appeal which institutes an appeal in this Court; see the Court's decisions in Majid Goa Vedastus vs Republic, Criminal Appeal No. 268 of 2006, John Petro vs Republic, Criminal Appeal No. 130 of 2010, Hussein Ramadhani vs Republic, Criminal Appeal No. 52 of 2013 (all unreported). In John Petro vs Republic (supra), the Court stated as follows:- 5

''It is now settled law that under Rule 61 (2J it was a mandatory requirement for the notice of appeal to state the nature of the conviction sentence, order, or finding of the High Court against which it is desired to appeal. Failure to do so rendered, and still renders under the 2009 Court Rules, the purported appeal incompetent " In consequence thereof, having found the notice of appeal being incompetent, we have no other option left but to strike out the purported appeal as we hereby do. DATED at MTWARA this 28 th day of November, 2014. S. J. BWANA JUSTICE OF APPEAL K. K. ORIYO · JUSTICE OF APPEAL S. S. KAIJAGE JUSTICE OF APPEAL I certify that this is a true copy of the original. P.~A SENIOR DEPUTY REGISTRAR COURT OF APPEAL 6