Hassan Ramadhani Mndika and Others vs Republic (Criminal Appeal No. 44 of 2012) [2013] TZCA 2363 (26 November 2013)

IN THE COURT OF APPEAL OF TANZANIA ATARUSHA f (CORAM: OTHMAN, C.].. LUANDA, ].A., And MMILLA, J.A.) CRIMINAL APPEAL NO. 44 OF 2012 HASSAN RAMADHANIMNDIKA) MUSSA AUGUSTINO KAJITI APPELLANTS JUMANNE MSHANGA VERSUS THE REPUBLIC .................................................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Moshi) (Makuru, J.) dated the 25k" day of November, 2011 In Criminal Sessions Case No. 36of 2009 RULING OF THE COURT 22nid November, & 2'' December, 2013 MMILLA, 3.: In this appeal, Hassan Ramadhani Mndika and two others (the appellants) were arraigned before the High Court of Tanzania of Moshi which sat at Same of the offence of murder c/s 196 of the Penal Code Cap. 16 of the Revised Edition, 2002. The trio were found guilty. While the first and third appellants were sentenced to suffer death by hanging, the second appellant one Mussa 1

Augustino Kijiti was, due to his age at the time of commission of the charged crime, detained during the President's pleasure under section 26(2) of the Penal Code. Feeling aggrieved, they appealed to this Court. They filed separate notices of appeal. When the appeal came up for hearing on 22.11.2013, the Court raised suo motu a point of law that the notices of appeal were defective because they failed to substantially comply with the format prescribed in Form B in the First Schedule to the Court of Appeal Rules, 2009 (the Rules) as envisaged by sub - rules (7) of Rule 68 thereof. To be particular, the notices of appeal under - consideration did not indicate the number of the case against which the appeal was preferred. Mr. John 3. Lundu, learned advocate who represented all the appellants conceded that the notices were defective for the reason stated above. He held the view however, that the defect was not fundamental. On the other hand, Mr. Hangi Chang'a, learned State Attorney submitted that failure to indicate the number of the case against which the appeal was 2

preferred is a fundamental irregularity. On the ground that the notice of appeal institutes the appeal in terms of Rule 68(1) of the Rules, he urged the Court to strike out the appeal for being incompetent. The argument pertaining to failure of the notices of appeal to comply with Form B to the First Schedule of the Rules is founded on the provisions of sub rule (7) of Rule 68 of the Rules which provides that:- 68 (7) A notice of appeal shall be substantially in the Form B in the first Schedule to these Rules and shall be signed by. or on behalf of the appellant. We are aware that the appellants are in prison, and that in terms of Rule 75 (1) of the Rules, they are to be deemed to have complied with the requirements of Rule 68 by filling notices which substantially comply with the format of Form B/i made under that Rule. We desire to reproduce Form B/i to show what ought to have been included in their notices of appeal under consideration: - "FORM B/i (Rule 75) In the Court of Appeal of Tanzania at............................Criminal/Civil or ApplicationNo .......... .......... of ....................... .....20........ - - In the matter of an intended appeal/Criminal/Civil. Appeal No....................... of .............. 20 ....... . - 3

Between • Appellant And .........................................................................Respondent (Appeal from the ........................................of the High Court of ............................. at.................................................................(Mr. Justice ................) Dated .......... . .............. 20 ....... in.................................................................................. Criminal/Civil or Application/Appeal No ....................of ...................20........) NOTICE OF APPEAL TAKE NOTICE that ...................................................appeals to the Court of Appeal of Tanzania against the decision of the Honourable Mr. Justice ........given at ..........on the .........................day of ..........................20........ whereby the appellant was convicted of...........................and sentenced to.............................................................................. The appeal is against conviction only/conviction and sentence/sentence only. The appellant intends/does not intend to be present at the hearing of the appeal. The address of service of the appellant is ...................................... Dated this .........................day of ........................., 20........ Signed .............................................................. Appellant/Advocate forthe Appellant (Retained only to prepare this notice/ Retained to appear at the hearing of the appeal/Assigned to appear at the hearing of the appeal. To: The Registrar of the High Court at................................Lodged in the High Court of Tanzania at.................on the .........................day of ........................., 20........ Registrar For Appellant who is in prison: Date of Judgment and Conviction . ................................................... Date of entering the prisonS ............................................................... Date of lodging an intention to appeal . ........................................................... Name of certifying officer - in - charge of the prisonS ................................................ Signature . ............................................. Date . ..................................................... Date of transmissionS ............................................." [Emphasis provided] 4

All that information involving the emphasized portion in the format reproduced above which include the number of the case appealed against, is missing. It means therefore that their notices did not substantially conform to Form B envisaged under Rule 68 (7) as aforesaid. In the case of January Makantà v. Republic, Criminal Appeal No 55 of 2013, CAT, Mbeya Registry (unreported), this Court held that a notice appeal which does not substantially conform to Form B predicted under Rule 68 (7) is fundamentally defective. Since this is what transpired in our present appeal, we find and hold that the notices of appeal are fundamentally defective. Since a notice of appeal institutes the appeal as contemplated under Rule 68 (1) of the Rules, it goes without saying that the appeal before us is incompetent. In consequence, we strike out the same. The appellants are at liberty to make fresh attempts to appeal. Order accordingly. 5

DATED at ARUSHA this 26th day of November, 2013. M.C. OTHMAN CHIEF JUSTICE B.M. LUANDA JUSTICE OF APPEAL B.M. MMILLA JUSTICE OF APPEAL I certify that this is a true copy of the original. / f/ \ f,•;r/ fL 7/ . I : i wizu izu DEPUTY REGISTRAR COURT OF APPEAL 11