Julius Dasius vs Republic (Criminal Appeal No. 146 of 2012) [2014] TZCA 2280 (28 April 2014)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LUANDA, J. A., MASSATI, J. A., And KAIJAGE, J. A.) CRIMINAL APPEAL NO. 146 OF 2012 JULIUS DASIUS ........................................................................... APPELI.AItIT VERSUS THE REPUBLIC ......................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania, at Mwanza) (Mruma, J.) Dated the 14th day of May, 2012 in Criminal ADDeal No. 51 of 2011 UU•••••• •IUU RULING OF THE COURT 281h & 29 1h April, 2014 MASSATI, J.A.: When the appeal was called on for hearing, the appellant adopted his memorandum of appeal comprising six (6) grounds of appeal, but asked the respondent/Republic to start. Mr. Timon Vitalis, the learned Principal State Attorney who represented the respondent/Republic, was all set for hearing; but before he did so, we drew his attention to the Notice of Appeal, appearing in page 74 of the record and asked him to comment on its features. Mr. Vitalis 1

immediately noticed that the Notice of Appeal was defective in that, it did not indicate the nature of the conviction on which the appeal is based. He submitted that this was contrary to Rule 68 (2) of the Court of Appeal Rules, 2009 (the Rules) and renders the notice deficient. Since a notice of appeaI institutes an appeal in terms of Rule 68 (1) of the Rules, the appeal is incompetent and so it should be struck out, he argued. When this, (essentially, a) point of law, was conveyed to the appellant, a lay person, he could not respond to it meaningfully, except to exhort the Court, not to strike out his appeal, and that, instead he be given a chance to submit another notice of appeal. It is now settled law that under Rule 68 (2) of the Rules, a notice of appeal must accurately state the nature of the decision or order against which it is intended to appeal. It is also trite law that in criminal appeals to this Court, it is the Notice of Appeal which institutes the appeal. So, if a notice of appeal does not indicate the nature of the conviction, the Notice cannot be said to have effectively instituted an appeal. (See MBUKI JAMES KIRUMA V R, Criminal Appeal No. 163 of 2012 (MWZ) and MWANYA ALLY DAD © HAMISI MUSA MTONDOIMA V R, Criminal Appeal No. 105 of 2013 (Mtwara) (both unreported). 2

In the present case, in the body of the Notice of Appeal, the words "convicted of" is followed by a blank sentence and ends with "and sentenced to thirty years imprisonment". The blank space is supposed to have been filled with the nature of the conviction. That omission is fatal. Since a notice of appeal institutes a criminal appeal, and since the Notice of Appeal in the present case cannot be said to have effectively instituted the appeal, the appeal is incompetent. We accordingly strike it out. DATED at MWANZA this 281h day of April, 2014. B. M. LUANDA JUSTICE OFAPPEAL S. A. MASSATI JUSTICE OF APPEAL S. S. KAIJAGE JUSTICE OF APPEAL • 1 cej thatthis is a true copy of the original. I N P. PIA SENIOR DEPUTY REGISTRJ COURT OF APPEAL 3