Yazidu Nyoni vs Republic (Criminal Appeal No. 137 of 2014) [2014] TZCA 2163 (20 June 2014)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA CORAM: MSOFFE. J.A.. KAIJAGE. 3.A., And MMILLA. 3.A. CRIMINAL APPEAL NO. 137 OF 2014 YAZIDU NYONI...................................................................... . ......... APPELLANT VERSUS THE REPUBLIC ................................... ..................... ............. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Songea) ( Kwariko. 3.^ dated 11th October, 2013 in Misc. Criminal Application No. 1 of 2013. 3UDGMENT OF THE COURT 18th & 20th June, 2014 MMILLA. JA.: As at 9.4.2011 the appellant, Yazidu Nyoni was an employee of Namtumbo District Council in his capacity as a driver and that then, he was driving motor vehicle Reg. No. SM 3503, an ambulance for Lusewa Dispensary. It was alleged that on that date, he was found with that motor

vehicle at Songea on a private errand without permission of his employer while in essence he was expected to be at his working station at Lusewa. Upon that, he was charged with the offence of breach of trust by public officer c/s 120 of the Penal Code Cap 16 of the Revised Edition, 2002 before the District Court of Namtumbo in the District of Namtumbo in Ruvuma Region. After trial, that court convicted him of that offence and sentenced him to pay a fine of T.shs 100,000/= in default of which he was to serve a term of one year in prison. He was aggrieved and thought of appealing, only to find that he was late. He instituted Misc. Criminal Application No. 1 of 2013 in the High Court at Songea in terms of section 361 of the Criminal Procedure Act Cap 20 of the Revised Edition, 2002 (the CPA) seeking orders for extension of time in which to "file" a notice of appeal and an appeal out of time. That application was dismissed. In dismissing that application, that court said that the appellant failed to show sufficient cause for the delay. The present appeal is against that decision. Before this Court, the appellant appeared in person, unrepresented. On the other hand, the respondent Republic was represented by Mr. Hamim 2

Nkoleye, learned State Attorney, who stated at the outset that he was supporting the decision of the High Court. The memorandum of appeal raised two grounds; one that, he had written a letter to the District Court in which apart from asking to be supplied with copies of proceedings and judgment for appeal purposes, he allegedly showed his intention to appeal, and two that, the Hon. Judge erred in law and in fact in rejecting the reasons he assigned for the delay as insufficient cause. He urged this Court to allow his appeal. When the appeal was called on for hearing, the appellant adopted his grounds of appeal suggesting to make a rejoinder after the submission on behalf of the respondent Republic, if at all. The thrust of Mr. Nkoleye's submission was two-fold. In the first place he maintained that the letter on which the appellant sought to rely on did not constitute a notice of intention to appeal, hence that the High Court judge cannot be faulted for having said that he failed to assign sufficient cause for the delay. Secondly, he submitted that the fact that the appellant had filed Misc. Criminal Application No. 1 of 2013 seeking orders for

extension of time in which to "file" a notice of appeal and an appeal out of time was a clear admission that he did not give notice of intention to appeal. In a brief rejoinder, the appellant stated that the letter he wrote to the district court on 20.5.2012, which was only three days after delivery of the judgment he intended to appeal against, saved as a notice of intention to appeal. He implored the Court to allow this appeal. After carefully-weighing_the rival arguments jn. this regard, we hold the view that there is substance in what Mr. Nkoleye said. In the first place, on examining the letter of 20.5.2012 which the appellant referred to, we have noticed that there was no indication that it was intended to serve as a notice of intention to appeal. It merely said that he was asking to be supplied a copy of judgment for "for further steps" without more. We agree with Mr. Nkoleye that given such state, it cannot be properly assumed it constituted a notice of intention to appeal. On the other hand, there is no dispute that in Misc. Criminal Application No. 1 of 2013, the appellant prayed the High Court to extend time in which to "file" a notice of intention to appeal and the appeal out of time. Once again, we agree with Mr. Nkoleye that to have done so was a clear indication

that he had not given notice of intention to appeal. We cannot avoid thinking that what he asserts now is an afterthought. With this said, we find and hold that having found that the said letter did not constitute a notice of intention to appeal, the High Court judge correctly found that the appellant failed to show cause for the delay. As such, the appeal lacks merit and we dismiss it. We would like however, to briefly say -something concerning the confusion of the use of the words to "file notice" as against to "give notice" in an attempt to comply with the requirement under section 361 of the CPA. Unlike in the case of the Court of Appeal for which an aggrieved party is required to give a notice in writing if he/she intends to appeal against the aggrieving decision as stipulated under Rule 68 (1) of the Court of Appeal Rules, 2009, there is no direction under section 361 of the CPA that the notice by a party intending to appeal must be in writing. That means it can either be oral or in writing. This is the reason why we decided to put the word "file' in inverted comas whenever we had to use it in that sense. We have found it useful to explain this in order to vouch confusion which may result into denial of justice and/or to save as guidance when tackling matters touching on that provision.

Otherwise, we reiterate what we have already said above that the appeal lacks merit and wedisrriissit. DATED at IRINGA this 19th day of June, 2014. J. H. MSOFFE JUSTICE OF APPEAL S. S. KAIJAGE JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL I certify that this Is a“truexopy of the^orig ina h DEPUTY REGISTRAR COURT OF APPEA 6