Shilingi Boniface vs Republic (Criminal Appeal No. 166 of 2012) [2014] TZCA 2282 (30 April 2014)

• IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LUANDA, J. A., MASSATI, J. A., And KAIJAGE, J. A.) CRIMINALAPPEAL NO. 166 OF 2012 SHILINGI BONIFACE ......................... ........................................... APPELLANT VERSUS THE REPUBLIC ......................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania, at Mwanza.) (Mruma, 3.) Dated the 21st day of May, 2012 in Criminal Anneal No. 50 of 2011 RULING OF THE COURT 301h April & 2nd May, 2014 MASSATI, ).A.: Under Rule 68 (1) of the Court of Appeal Rules, 2009 (the Rules) a notice of appeal institutes a criminal appeal. Sub rule (2) requires every notice to state briefly the nature of the acquittal, conviction, sentence, or order or finding against which it is desired to appeal. Sub rule (7) requires a notice ofappeal to substantially comply with Form B in the first schedule to the Rules. The preamble to Form B reads as follows: 1

A. "In the Court of Appeal of Tanzania at . .....................................Criminal/Civil 1(10) Application No. ...................... of .................... 20 In the matter of an intended appeal/Criminal/Civil. Appeal No . .................. of 20. .......... between ............................................. Appellant and .....................Respondent (Appeal from the ........................................of the Hi'h Court of................... at....................................................(Mr. Justice ...........................................) Dated......................... 20 . ............... in ....................................................... Criminal/Civil or Application/Appeal No. ......................of 20. ........ )" This preamble requires that the decision of the High Court against which it is intended to appeal be identified in terms of the registered number of the decision, the date, the Justice who made the decision, and the place where it was made. The rationale behind this is to ensure that the right matter is placed before the Court. In its numerous decisions, this Court has emphasized on the need to strictly comply with this requirement, to the extent that those notices of appeal which were found to be deficient had been declared incapable of 2

instituting the appeals; and so the appeals had to be declared incompetent and accordingly struck out. (See TULWAY GENYAU V. R., Criminal Appeal No. 101 of 2009, KASSIM SAID AND TWO OTHERS V. R., Criminal Appeal No. 69 of 2010 (both unreported) to mention but a few instances. In the present case the decision that is intended to be appealed against is that of Mruma, 3., dated 21 st day of May, 2012 delivered at Mwanza in Criminal Appeal No. 50 of 2011. However, the preamble to the Notice of Appeal, identifies it as Criminal Appeal No. 15 of 2011. It is possible that such a case exists, but it is not the one before us. The notice therefore suffers the mistake of misdescription of the decision against which it is intended to appeal. When this Court pointed out this mischief to the parties, the appellant, pleaded with us to ignore it because it was a minor error and so urged us to proceed with the hearing of the appeal. On his part, Mr. Castus Ndamugoba, learned State Attorney who appeared for the respondent, submitted that this was a fundamental error and cannot be ignored; as it contravenes Rule 68 (2) of the Rules. In his view, the Notice 3

is defective and renders the appeal itself incompetent. He urged us to strike it out. As we tried to demonstrate above the Court has consistently frowned upon infringement of Rule 68 (1) (2) and (7). This is so, because a Notice of Appeal institutes a criminal appeal. Any non-compliance with the Rule, is an incurable defect and cannot be taken as a minor error. We therefore agree with Mr. Ndamugoba, that the error is fundamental and renders the appeal incompetent. The purported appeal is accordingly struck out. DATED at MWANZA this 3th day of April, 2014. B. M. LUANDA JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL S. S. KAIJAGE JUSTICE OF APPEAL I certU that this is a true copy of the original. 'I • PIKYA .. . SENIOR DEPUTY REGISTR.1 I COURT OF APPEAL t