Andrea Kusundwa vs Shija Kusundwa (Miscellaneous Criminal Application No. 10 of 1997) [2000] TZHC 625 (14 August 2000)

• JN THE HIGH COURT OF TANZANIA·. AT TABORA , 'MISCELLANEOUS CRIMINAL APPLICATION NO. 10 OF 1997 (ORINJGINATING FROM NZEGA DISTRICT COURT CRo CASE N0o74/96 ANDREA KUSUNDWA ••••••••• APPLICANT VERSUS GHIJA KUSUNDWA • •••••••• RESPONDENT RULING . This is n application under section ,;61 of the Criminal Procedure Act, 185 for e·xtensi':'n of time within which to appeal to this Court .. The· brief background t('l the matter is as follows: Shija Kusti.r1dwa. stood trial at the Nzega District Cnurt on a Charge f Criminal trespass c•ntary t.;· section 299· ,:,f the Penal Code.., At the conclusion of the trial; · Shija Kusundwa was found not guilty and acquitted. Being a,ggrieved by such acquittal, Andrea Kusundwa., the comple.inant intends to appeal to this Court. Time within which to lodge his petition of appeal having expired, Andrea Kusundwa (applicant) has lodged this applicetion .. At the hearing of this applic-9.tion the applicant appeared· and arguet: the applicaticn ir., person The respondent he.d the services of Mr., Kayaga, learned advocate~ Mr. :rr1wampoma, learned Senior State Attorney, appeared as a friend of the Court~ In. thi3 application judgment against which it is intended to appeal was delivered on 6~8,1996., In terms of section 361 of the Crimino.l h'Gcedure Act, 1985 the applicant had forty-five days from the date of the judgment to lodge his petition cf appeal. Provided that in computing the said period of forty-five days the time required for obtaining a copy i•f the judgment shall be excluded. And provided further that this Court may, for godd cause; admit an appeal not-withstanding the period of forty- five days has ele.psed., This application was lodged on 2701.1997, that is after 171 days since delivery of the judgement., ' \

( 2 \ I In his affidavit the applicant avers that the delay to lodge his petition of appeal was due to Distrfot Court Official's :iu.si:-:f,-r'.':'"-ti..on t~, the effect that the petition of appeal was required to be filed at Nzega District Court in.stead of being lodged directly at the High Court Registry at Tabora . ., At the hef1ring of this application the applicant gave a different reasort. He told the court that the delay . was due to the fa.ilure by the Nzega District court to farnish him with a copy of judgment in good time. Mr. Kayaga opposed the application.., He gave tw"> reasons.. MrA Kayaga argued lhat the applicant is not entitled to appeal because the prosecutil'.ln was conducted on beh1=tlf of the DPP, and in that case only the DPP cari be heard on appeai. Mr. Kayaga quoted the case of FANDEL MSENGI V-. ,.PETER Ml'UMBA ( 1992) TLR 109 in su1)pcrt of his contentiono ,"'-• .' -• · . Mr. Kayaga1 s second reason, if I ·understo0d him well, is_ to the' effect tht the intended appeal is without merit becauRe the dispute o::irtcerns a ·1and controv~:r,sy between members of the same family; that a Criinal Court is not ft proper forum for determining the rights of those olaiming owne.rship of land,, In support of his c0.ntention Mr,, Kayaga referred the court to the case of SILVERY NKAI'GAA V. RAPHAEL ALBERTHJ (1992) TLR 111) where it was held that a chargE: cf criminal trespass "nnot succeed where the matter involves a land djspute the ownership of which. has :not been 'finally cleterminc:d by a civil suit in a court of law., Mr. Mwampoma was nf the view tho.t as the natter originated in the District Court the applicant has no right of appeal,, It is not disputed that. the matter ·originat 1 d in the District ']he racord shows that the proscution was conducted by the public prrisecutor (a police officer)/) The prosecution was, therefore, conducted on behalf of the Director of Public Prosecutions. The aplicE:int was m0rely a prosecution witness ( PPI} .. · In JUMBJ r:10HAM8D bin TAMBAZA V. HASHIL HEI1ED and MrlIN,SHEHE SALUM Law: Reports SUT)pleincnt no .. 15 of 1960 P,~ 12, Biron Ag. Jo (as he then was). at :P.J 5 quoted with a pprov.:- 1 . tho head not from -the Hou,se of Lc::..:sds

.. ) ( 3 ) dncision in BENSON V• NOTHERN IRELAND TRANSPORT BOARD ( 1942) I AI·I ER 463 as follows: "A right (')f appeal from a decisir)n dismissing a criminal ch-"lrge c:,n only be giv•:;n by statute and in that case, only be words which are cler, express and free from ambigui t;y-1 1 ,. Section 359 (1) rf the Criminal Procedure Act, 1985 provides: 11 Save as hereinafter provided, any person aggrieved by any finding, sentence or nrder made or pa·ssed by a subordinate Court other that a subOrdinate court exerdsing its extended p01., 1 ers by virtue of an order m::ide under sectinn 173 of this Act may appeal to the High Court end such subordinate court shall at the time when such finding, se:ntsnce or order is made or passed, inform such person of the period of time within vhich,. if he ,,rishes t0 appeal, he is required to give notfoe of his intention to appeal and to lodge his petition nf appeal 0 ,,_ 'I.be above provision would appear to give a complainant the right of appeal from the decision of the district Court., Howev0r in UMBWA MB.:'SGU and ANOTHER V.R. (1969) HCD n., 312 i:L: was held that th conduct of any criminal case is in the hands of the Republic and that despite a private person cnducting the prosecution, a.nd despite a complainant having by · his complaint instigated the proceedings, the two parties b(dore the court are in reality the Republic and the accused The words "person aggrieved by an order" were interpreted t) mean the Attorney General and the accused., In UMBWAfS case the court was interpreting section 312 (1) of the Criminal Procedure Code, Ca;,- 20~ • However, the wording of sectioh 312 .(1).of the Criminal Procedurr:: Code is Glmost identical with section 35) ( 1) of the Criminal Procecture Act 1 19B5 ...

\ ( 4 ) Similarly in FANTJEL MSENGI V. PETER Ml'UMBA (1992) TLR 109 the respondent was acquitted by the District Court of the offence of cattle theft. The appellant, owner of the cattle, aggrieved by the decision of the District Court appealed to the High Court., It was held that as the prosecution was conducted by the DPP, the complainant had no right of appeal. In the instant case the matter oriinated in the District Court and the prosecution was conducted on behalf of the Drector of Public Prosecutions. Consequently, the applicent has no riht of appeal; The application is misconeived. Even if the applicant was entitled to appeal, the intended appeal is hopeless.. In SYLIVERY NKANGAA V. RAPHAEL ALBERTHO (1992) IJ:iLR 11;; it was held theta charge of criminal treeuass cannot succeed where the matter involves iand in dispute whose ·ownership h-9s not been finally . ;..; determin,d by a civil suit in a court of la.w. In the h.stant case the parties are brother.so The disputed land was part of the estate of their late fathcro Th ownership of that parcel of land has not been determined by a court of law ... It is doubtful, therefore, that one brother can be held criminally liable for trespassing on that land as he will put up the defence of claim of right~ In MJHA.Mf!:D .SELEMAN V. ALLY MORA.MED HAZAM, TBR Civil Application No. 0 1 of 1997, Nyalali, c.J. held that where an intended appeal is obviously hope- less the court may refuse to extend time even if th8re is a reasonable .,. explanation for the d-9lay, since in such a case, an extension of time would be a futile exercise - and the court does not act in futility. F~r the abeve reasons the application for enlargement of time <'¢ . in which to appeal is rejected. DoM.MiITA JUDGE /. I, .. ·._ Delivered in charnber_p in the presence of Mr,. Kayaga, advocate for the Respo?~ent and Mr. Ndunguru, SSA, as friend of the CourtA . , j . t r -, , __ D.Mojf;j;(-r·- (~~ JUDGE 14/8/2000