Issa Said vs Republic (Criminal Application No. 10 of 2014) [2014] TZCA 2375 (3 November 2014)

• IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SAl:AA~-··. (CORAM: BWANA. J.A .. MANDIA. J.A .. And-JUMA~ J.A.) . - ' - - -CR.IJIIINAL APPLICATION NO. 10 OF 2014 -- ---- -- --- - ISSA- SAID ........... ,,-. ..... --.--. • •.•••........•••..•.•.•.•.....•.... ■ •••••• • -.-.-.-.-.-..-.,,....-.-.-.-.-.-A PP-LI CA N·T VERSUS THE REPUBLIC .......................................................... RESPONDENT .. ____________ (Applic_ationfor release the.AppJtant_f_rqm the decision of the HigbCourt of · · Tanzania at Dar es Salaam.) -·-•------l(T""e-mba ,, ----····----··---·---·-------------- --- ---·- ------- -· - r-1~1 Dated the 16 th day of December, 2013 in Misc. Criminal Application No. 11 of 2011 RULING OF THE COURT 31 st October & 5 th November, 2014 JUMA, J.A.: .. _ This application which was brought_under Rule 4 (2) (a) (b) of the Tanzania Court· of Appeal Rules, 2009 (the Rules); presents us with a ,:;very unique, question for our determination. That is, ) whether the Court can order an immediate release of the applicant I from prison where he is serving a thirty year sentence because, after filing his Notice of ~ppeal way back in November, 2003, it is now eleven years on and the Registrar of the High Court has not furnished him with the record of appeal. According to his notice of ··-···· . '-· ------ --------- ------····· ,• ... ·---·-·---

,, ,. . -- -·----motion the applicant is urging-the .. Cour-Uo--or-der- -his release from .. ----- -- . t prisqn·on~~g~()unds that he has been deprived~-is -ig_bt ''to ·---·-·----- __ __._.a.ppeaJJor-tbe_past eleven-{--11J-y.ears . .si.f'.lce-21.ov.emberD,..,,1----.....--- because. _ all. the relevant court · records are missing. In his -· -··- ,. application, the applicant did--n-ot include a copy of the Notice of • f ----.Appeal-.--I-r.:isteadost..;t-l:le-dociim@t.s-he-attci:led-t-G-1:l...a!S------- ~ ----·• ------- affidavit was an Exchequer Receipt No. ,; ·- 19271106 dated 21/11/2003 paid allegedly when he filed his Notice of Appeal, The novelty of the question of law will be appreciated better from the context of the ·background facts from the applicant's own perspectives. Issa Said, who is the applicant by notice of motion, ..... . . was· on 3~:1..Aii9~0st 2001 convicted of the offence_:ilLiape by the District Court of Kibiti (Criminal Case No. 22 of 2001). He was sentenced to serve thirty years in prison. Being aggrieved, he appealed to the High Court (Criminal Appeal No. 25 of 2001). He did not succeed because, on 21 st November, 2003 his appeal was . .' . .. dismissed. The applicant almost immediately manifested hi'. intention to appeal from the Judgment of the first appellate to the - Court of Appeal when he lodged his notice of appeal/ · ' 2 ., ·----- --·----- ' •• , u ... - ··-------------

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• Ordfnarily and in-terms of Rule-6~-(-1-) his- notice of appeal not- . appeal_od deliver the same to the appellant for hJI!ttP lo_qg~~lg_ht -··-··· ----- -- copies of the memorandum of appeal within twenty one days of ---r@reiv~+1g-t~e-r-OC--0r4-of-app@al.-AGGGr-cii-r:ig-t-G-t~~pplirara,-,his------ problems are caused by the failure of the Registrar to furnish him with the record of appeal. He in essence complains that although the Registrar was in terms of Rule 71 (1) expected to prepare the record of appeal as soon as practicable after the applicant had lodged his:notice of appeal; it is now eleven years and applicant is "j" still waiting for the elusive record of appeal. In the affidavit which he affirmed in support of his motion, the applica_nt revisits how as months and years went by, he wrote letters of c6mplaints to the Registrar, and how the Registrar would write back, always promising compilation of the record of appeal was going on apace. For instance on 27 th September, 2006 which ·, 1, • ~ was almost three years after the applicant had filed his notice of appeal, the Registrar wrote back to the applicant conveyirig a 3 . ·----. --- ---------------- - --·--·

r I ,, .. ·-·-·--·----------- promise to the Pr.ison- .Officer--i.r::i-.Gl:large of Ukonga Prison that -the-·····------------ · · · · -,ecord _of __ a_ppeal wa_s still being compileo: '· ' ~ . .r.ejea-- ---barua--- - - .. yako yenye- kumb. -· ·· · Na· · -·- - .. _ ______ 7§/JJM/J./XIV/231 napenda kukufahamisba--1<wamba vitabu bado ·· havijakamilika utatumiwa record pindi · · vitakapokamilika. Tafadhali afahamishwe · mfungwa ' ·· ,. -------:-;------::,.-------------------- --'-'-··-···-·· husika." ·: " .. ,Be.for lodging this present motion, the applicant had gone to the extent of applying for leave of the High Court in Misc. Criminal Application No. 11 of 2011 to apply for prerogative order of Mandamus to compel the "District Magistrate Dar es Salaam Zone~', "RegI~trar Dar es Salaam Zone" and the Attorney'-;General, to supply him with the court records. Teemba, J. granted that leave . on 16 th December, 2013. . . When the motion came up for hearing on 31 st October, 2014: the applicant appeared in person, unrepresented. ML Mohamed f; Salum, learned State Attorney, appeared for the respondent Republic. The applicant had nothing to add over what is contained in his supporting affidavit. Mr. Salum fs>r the respondent premise; 4 .

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... -- his submissions by __ observ_iog __ tbat he is well aware of the •-----considerabJ,e power which this Court--has-under Rule 4 (2). The ----,--__...le ...... arnecLSttjtettorne¥---hastened to add_tbaUbJsLourLsbould_not _____ _ ·-· - -------· -- -------------- . --- -----···- inv9~~ its. ·powers on the basis only of wha~!be applic<::1_nt has alleged without givTrig the Registrar of the High Court the chance ., .. ___ to_explain-tbastatusoLtbe-recorcLof-appeaJ,----- ------------------- ----'---M_r.---'S:.-~lunJ observed that the applicant's allegations alone do __________ _ . . not clarify· wether the original record is in existence or the Registrar ias .:neglected on his duties to supply the record of appeal. He als added that the provisions of Rule 4 (2) (a) (b), which the applicant used to invoke the jurisdiction of the Court, do not}rnply that failure by the Registrar of th~_ High Court to supply .- ... ,' the applicart with the record of appeal would automatically lead to the release of the applicant from prison. ' The learned State Attorney submitted that while making our decision o~ the motion, we should maintain a right balance between the- ... applicant's right of appeal, and the right of the general puqlic that offence of rape for which the applicant was convicted ar,td sentenced, is punished. He ended his submissions by 5 --·--·- ----· --- -- ➔ ------- ----- -•---·--·---- i -- -- --- - ···---------1-- 1 ........ _, ___________ +-- !

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r --.- . . -------·---·-·------ --- .( pointing-- -out--all-possible options of assembling---tt-le--missjg -- . --- . -::,- .. ___ g9cuments have_ riot been epl9red. He_pointed out the prisn ." . 4 . ·\ -----,._ ---€1e13ar-t-me-A-t:; t-Aee11re-a-Ae--t-Ae-R-e13t1aH0-as-w.f::l0le-t-=iave-flee,01-n------ ______ asked to furnish the Registcar with the_. records relevant to the l> ;{ ,;.· appeal which is in their possession. ' After hearing the submissions of both sides, _.we cannot h!P ·- - - ·--· -··- - ··-·· -·· ----·· -------- f ----------- ·:··? _____ JJut_pojnLouLibaLaltbougb the applicanLbas_jn-.bjS-JllOti ...... on-..--------- ·, .. ) ¥ maintained that he filed a Notice of Appeal to this Court, he did not . /; ! ·; l attach any copy of that Notice of Appeal not only to assure us, w,e have requisite jurisdiction but also to assure us that it was this Notice of Appeal which should have prompted the Registrar of the High Court to compile. the .record of appeal. It is not clear to .ijs -::.' . ~ why the applicant has not attached in his application some documents like a copy of the Judgment of the High Court and .• Notice of Appeal, which ordinarily were expected to be in n1s possession. ; . j- 'i ) Without including a copy of the Notice of Appeal, this CouJt '·' ' ;,. ,.f cannot be· seized with jurisdiction to hear the complaint that ttte - - . . .; Registrar of the High Court has delayed for eleven years to furni$ 6 . . ·- ·- ----·-·---- .. ____ .. --:.- .. --•·:..:...· ;:..:..· •_;;__" -:--c-:. --=-=---- . - . _______ . · . ' .. ---·--·- ----------- - . -·---- -----,l-__:. - .μ,... -}fr-----·----'.-:- :·=--=:':' __ - 'I . ·, t ··•· ...... ,. . .... ..·,

• .. --- .. ----------------- h)m /1.fith ,tlJJ§c;:ord of appeal. It is a notice_ of. appeaLenv:i_s_a_ged - . ' . under Rule 68 (1) which-inst-itutes a criminal appeal in this Court.--------- This legal .. premise is to the effect that without p_,___,,ro"--'"'o'-'-f__,t ........ h.,.,at,.,,._the~------ ~- ' ' . applicant had initiated an appeal by a valid Notice of Appeal, this Court can11ot be considered to have· the jurisdiction under Rule 4 _____ (2) _(aJ and (b). Next;· we move on to show why we think that it is a copy of a valid Notice of Appeal (envisaged under Rules 68 and 75) which ~ the ,applicant should have included in his motion. A copy of ,t,., Exchequer·; Receipt which the applicant enclosed in his motion ,/· cannot invbke the jurisdiction of the Court. The applicant has not shed any l,1.ht. why he did n9--(ing a copy of his Notice of Appeal which ordiAarily should be in the custody of the Prison Officer-in-

• ' Charge of .. his custody. In January Makanta vs. R., Criminal • Appeal No;/'SS of 2013 (unreported) this Court observed that: '~ .. For purposes of notice of appeal, Rule 75 gives the appellant another avenue for preparation of Notice of Appe_al whilst serving term in prison apart from notices envi?Pged Lmder R11le.ilLibisJl.ule-2S-pro.vides-tJ:Jiit-i.f-----C-------- the appellant is in prison/ he shall be deemed to 7 . . _____ , - ---·, ·-·-------------•------ ··------- -- - ------------ -----·

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• .. ··---..,........,... ----· -have complied with-the-requirements-of Rule 68 --i. i goY-eming notice by filling Form· .i!J/--1.-and , :_; .. - --- --------- : .. .. --;-:t----··----··-··· handing it over- to the officer-in-charge of the· · · t • . . . . /;·_. prison in which-- he--is--serving- sentence. In other : ,. -- - words, by_filllnga_nd_banding over Form B/1, the_....,,___ appellant would in law be taken to have initiated an· appeal to this Court. //[Emphasis added] . ~ .. .,. -, ------------------------------ -----------·-· .. - . . . ---·- ...... -- A close look at Rules 68 and 75 imply that the Court must ·e __:---------------------------:-t;-,,, ·•---.-- .. ·--··-·--------··- presented with a copy of Notice of Appeal which the applicatlt .• '. allegedly lodged to not only initiat and appeal but to prompt 'the ! Registrar of the High Court to prepare the record of appeal. Rul 68 and 75 (1) state: · . - 68 .. -(1) Any person who desires to appeal to-the Collrt: . ~ shall give notice in writing, which shall be lodged l1_1 · . triplicate with the Registrar of the High Court at the place where the decision against which it is desired io 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, arid 8 ---- - -----···--- --·- -- ---· --· ----···--·------ • ; ':; i :,:. :'. __ , -, .: ;,.,::.:.:;·-·:.---------1: --~- :. . . J..;......:;.. ____ _ ---- __ ,.1__._....__ __ ------- .. -----. - . ' :. ' ..... .;,p. , ........ '. • '·

,' l .. - ····· --------····· · -""s-ha/1-eeRt--aitra full and sufficient--address--at-whieh any jJotices or-othei--documents connected with the appeal: ___ _ .,,, ····-· - -·---•---------- ---·· -- ·my be served on the--appellant or his advocate ancl

• • --- -- -- -- ------ - --sq{Jject to Rule 17, shall be signed-by-the-appellant or his '.·advocate. · ;' ___________ ______ (1) A notice··;of appeal hall_~~--s'!~~at!ally in the ______________ _ Form Bin the:Rrst Schedule to these Rules and shall be ", .signed by or. on behalf of the appellant. [Emphasis . . added]. 75.-(1) If the appellant is in prison/ he shall be cf.eemed . to have complied with the requirements of-Rules 6 72/ 73 and 74 or any ,.. ' of them by filling Form B/1/ Form C/1 and handing , : ' .. over to the officer-in-charge of the prison in which ffe is serving sentence his intention to appeal and the particulars required to be included in the -'· .. njc!morandum of appeal or statement puruant to t/iic/ provisions of those Rules. [Emphasis pf ovided]. - ,·'.. :{, .. ' .:;_:: ~~:/ ' j.,; \ '}, . '. ,. .. , .' ,; / <.:-- ':•: . 9 ' f1!-.!- .. .- ------ . --------- ------·---·-- . -·---···-- - ===---,------'---c:===--

,'•.:,'.·· .. ·-------- In his affidavit, --t!:}e-.a.ppUcant · affirms the following- ·· 0 With regard to his Notice of Appeal: __ .. ..... --- --··--- 11 5. .. That-- being - aggrieved by the above -meRtion - .,. · · decision I duly filed Notice of intention_taAppeaLin tf?e ' Court of Appeal of Tanzania and in response · I ·( received an exchequer receipt I as an acknowledgement of the "Notice" being received'.,.:- .... -· .. ·- in the·- Registrar's--otiice, of which the photo copy is··. :·~ attached herewith and marked as annexure ''JS'~ ; ., . ., . ./. As we have demonstrated earlier, mere claims made in the supporting affidavit th,at the applicant duly filed his Notice ~of ., . , . \ . ~ Appeal is not in our view sufficient to vest this Court with ' I ,._ • "' ',• . . jurisdiction under Rule•68 or 75. It is not dear why the applicant would like this Court to believe that his Notice of Appeal was ..... ' ' amongst. the documents which the Registrar of the High Coqrt misplaced. Even if we accept, the applicant's version of events that ~'"J..\ '., the Registrar of the High Court has sd far failed to. compile ttie .'{ record of appeal, the applicant must surely have retained his owh I, • copy of Notice of Appeal now presum·ably in the custody of .tJe ., "· .... Officer in Charge of the prison holding him. 10 . __ .!. ____ --··--···· ·----. ----- .----·- ; . ,. -· ... --------~-'=---;'-:,---.,--=-,:;=--- !' --·····-------·- '-·-··--------1.-- . ··--···-·····-···· ··----··--·-..,____.,~~--- ·--·----- · 1_

.·., t .. ··> W§._propose _t.o_sbow_why---we think that this .Court musLsee .,. ' -- for itself a copy of that Notice-of Appeal referred to by the --- -- .. ·--- applicant. A copy of the Exchequer Receip_LwhLcb_tbe__appJjcan.L------- included'.{n his motion is not a Notice of _Appeal in so far as it does not comp·1y with intricate conditions of a valid nofice of appeal ., ' ' envisagecf;- under..Ru.les 68 and 75. As matters_now_stand 7 -We-ar:e .----- ndt in positf6n- to-verify-whether the Notice of Appeal· which the ·. '.:;· ,, applican~:, anegedly filed was signed by the appellant or by his ·,,;•' ., advocate ,or even whether it has substantially complied with the Form B ir1{th~ First Schedule of the Rules. t We . do,. not know the type of Notice of Appeal which prompted(:·:the Registrar. of the Hig~ C:ourt to write several letters -- promising;th,e applicant that the High Court registry was preparing the recorq of appeal. At any rate, these promising letters the ', Registrar ~f 'the High Court wrote, do not take away the duty the law imposed on the applicant to show that he had initiated an •· lf appeal to this Court by a valid Notice of Appeal. 11 l· .. ,, __________ , _ _"_I -·-·----------·------ ------------·-·,'!> --------~ { \ . --- - --- _:c"·=-------=-·- .. ___ --------="---;-------=-=-- =------------- __ .. --- ----r -·--------- --------------------- --·---- ~ --------- .. -- - - ----·-------- _- ____ --f --

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.. -- . ····--·- 1 -·-·--- Io th_e_ fina.Lanalysis,- -this application is . .incompetently_.bef.ore --

• ,t I • ••- ••• ----- • __ ----~~e __ ourt for failing t--include~-a cpy <:>f __ ~alid Notice of Ape_al. We as a resuJ1-sJ:rika.tbe applicatiDn..o1;1L-1tJs_so_or_cler_e_u..- __ ·-------'----- ·'·---------DATED at DAR ES SALAAM-this-3flLday-of November,2014; . S. J. BWANA JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL I. H. JUMA JUSTICE OF APPEAL 12 ------------- ... --- -----··--·--·--··- . . . ----- -- -- .. ·_ '.- - -=---c:.=·· ==--------- T ,._, __ , __ _ -----------·-··-·---- ·---. ---------- :······-···--···-· ------- I . ,