IN THE COURT OF APPEAL OF
AT MWANZA
(CORAM: RAMADHANI, J.A., MSOFFE, J.A.,
And KAJI, J.A.)
CRIMINAL
APPEAL NO. 105 OF 2002
BETWEEN
EDWIN URIO
……………………..……………………………...….. APPELLANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
..…….…..….. RESPONDENT
(Appeal from
the conviction of the High Court of Tanzania
at Tabora)
(Lukelelwa,
J.)
dated the 15th
day of July, 2002
in
Misc.
Criminal Application No. 22 of 2002
JUDGMENT
OF THE COURT
MSOFFE, J.A.:
In the District Court of Shinyanga, Mwijage
RM, the appellant, an accountant by profession, was on 22/6/2001 acquitted of one count of
office breaking and five counts of stealing by public servant. The case against him was basically that
during the night of 25-26/2/1999 he broke into Shinyanga Government
Hospital 27/6/2001 of intention to appeal to
the High Court of Tanzania at Tabora.
Thereafter, Criminal Appeal No. 95/2001 was instituted at the said High
Court, although it is not clear from the record as to when exactly it was
lodged. Nevertheless, in a decision
titled “SUMMARY REJECTION” dated 20/11/2001 , the High Court, Mwita, J., struck out the
appeal for want of a proper notice of appeal.
In essence, Mwita, J. was of the view that the appeal was incompetent in
that the notice of intention to appeal was not given by the Director of Public
Prosecutions. In arriving at the above
decision the learned judge cited this Court’s decision in DPP v. Thomas Mollel @ Askofu Criminal Appeal No. 30/98 where,
after referring to S.337 of The Criminal Procedure Act, 1985, it
was stated thus:–
“Our
construction of this provision is that for purposes of appeals under the Act by
the Director of Public Prosecutions, the latter is interpreted to include a
public prosecutor only if such a public prosecutor is an officer subordinate to
the Director of Public Prosecutions, and is acting under his general or special
instructions. For it is conceivable that
while the Director of Public Prosecutions may have appointed Public Prosecutors
in different ministries, departments or sections throughout the country, all
such appointees are not necessarily officers subordinate to him, some are
subordinate to other officials, in which case in our view, they would not be competent
to give the requisite notice. In the
instant case there was no evidence to show that the RCO who purported to give
the requisite notice was subordinate to the Director of Public Prosecutions
within the meaning of the section, and on that account the High Court was
perfectly justified to hold as it did that there was no notice given by the
Director of Public Prosecutions of his intention to appeal.”
Pursuant to
the decision of Mwita, J. the respondent Director of Public Prosecutions sought
to “remedy” the situation by filing an application at the High Court seeking
enlargement of time to file notice of appeal and leave to appeal out of
time. In a Ruling given on 15/7/2002 the High Court,
Lukelelwa J. granted the application. In
granting it, the learned judge saw no good cause for the delay but granted the
application because there were “special and peculiar circumstances” warranting
an appeal citing this Court’s decision, Lubuva J.A., in A.G. v. Saidi Juma Muslim Shekimweri (DSM Civil Application No. 45/97
(unreported) that even where there are no reasons for enlargement of time in
which to appeal where there are special or peculiar circumstances time will be
extended.
In the light of the above background,
this appeal was preferred. The appellant
filed a six point memorandum of appeal but essentially his complaints are two
fold:–
One,
that once the appeal was rejected summarily the only cause open to the
respondent was to appeal against that decision and not to seek extension of
time to appeal. Two, that the learned judge having found that there was no good
cause for the delay ought to have dismissed the application, instead of finding
that there were general and special circumstances to allow it.
Indeed, the appellant’s oral submission before us also
centred on the above two main complaints.
On the
other hand, Mr. Feleshi, learned State Attorney, was generally of the view that
since the decision to reject the appeal summarily was sound in law the only
remedy open to the Director of Public Prosecutions was to seek extension of
time to appeal. He further urged that
the decision by the High Court to enlarge time was sound in law.
Before making a decision on the merits
or otherwise of the appeal we wish to make one point. In making the decision titled SUMMARY REJECTION, the end result of
which was to strike out the appeal, the learned judge did not appear to be
conversant with the distinction between rejecting
an appeal summarily and striking out
an appeal. We wish to reiterate that
the High Court is vested with powers to reject an appeal summarily under s. 364 of The Criminal Procedure Act, 1985.
The section reads, in part,
as follows:–
“364 (1) On receiving the petition and
copy required by section 62, the High Court shall peruse the same and –
(a) ……….
(b) ……….
(c) If the appeal is against conviction and the
sentence and the court considers that the evidence before the lower court
leaves no reasonable doubt as to the accused’s guilt and that the appeal is
frivolous or is without substance and that there is no material in the judgment
for which the sentence ought to be reduced, the court may forthwith summarily
reject the appeal by an order certifying that upon perusing the record, the
court is satisfied that the appeal has been lodged without any sufficient
ground of complaint.
It will be clear from a reading of the above provision
that in rejecting an appeal summarily the High Court will have considered the
appeal on merit so to speak, notwithstanding that the parties will not have
been heard at that stage. In other
words, the High Court cannot reject an appeal summarily without looking at the
appeal in its entirety. Thus, the power
to reject an appeal summarily can only be invoked where an appeal is based on
the ground that the conviction is against the weight of the evidence or where
the sentence is excessive. In the case
of Idd Kondo v. Republic Criminal Appeal
No. 46/98 (unreported) this Court, speaking through Ramadhani, J.A., laid
out the following principles which have to be taken into account when
considering summary rejection under s.
364:–
1.
Summary dismissal is the exception to the general principles of criminal
law and criminal jurisprudence and,
therefore, the powers have to be exercised sparingly and with great
circumspection.
2. The section does not require reasons to be
given when dismissing an appeal summarily.
However, it is highly advisable to do so.
3. It is imperative that before invoking the
powers of summary dismissal a Judge or a Magistrate should read thoroughly the
record of appeal and the memorandum of appeal and should indicate that he/she
has done so in the order summarily dismissing the appeal.
4. An appeal may only be summarily dismissed if
the grounds are that the conviction is against the weight of the evidence or
that the sentence is excessive.
5. Where important or complicated questions of
fact and/or law are involved or where the sentence is severe the court should
not summarily dismiss an appeal but should hear it.
6. Where there is a ground of appeal, which does not
challenge the weight of evidence or allege that the sentence is excessive, the
court should not summarily dismiss the appeal but should hear it even if that
ground appears to have little merit.
As
for striking out an appeal,
apparently there is no specific
provision in the Criminal Procedure Act granting the High Court power to do
so. At best, we can say that the power
to take such action emanates from the provisions of part of s. 388 (1) thereof, where the High
Court can make “any such other order as it may consider just and equitable”
where it is satisfied that there is an “error, omission or irregularity” which
has occasioned a failure of justice. In
the instant case, the “error, omission or irregularity” was based on the fact
that no proper notice was filed, hence the High Court was justified in striking
out the appeal. We will, however, hasten
to say that in the exercise of such power the High Court will not have
determined an appeal on merit. Instead,
it will have simply struck out the appeal on account of “an error, omission or
irregularity”, as the case may be.
Indeed, this is where the distinction lies between rejecting an appeal summarily and striking out an appeal. In
the former, the appeal will have been determined on merit as stated above,
while in the latter no such determination is done because the appeal is
incompetent. In the case of Leonsi Silayo Ngalai v. Hon. Justine Alfred
Salakana and The Attorney General Civil Appeal No. 38/96 (unreported) this
Court, speaking through Nyalali, C.J. observed as follows:–
“…..
an incompetent appeal amounts to no appeal.
It follows that the court cannot adjourn what it does not have. Under such circumstances what the court does
is to strike out the purported appeal off the register.”
In
the light of Ngalai’s case, we may
repeat here that the High Court, Mwita, J., apart from the apparent mix up
between SUMMARY REJECTION and STRIKING OUT AN APPEAL, cannot be
faulted for striking out the appeal for being incompetent.
In conclusion on the point, the decision by the learned
judge could have simply been titled ORDER
instead of SUMMARY REJECTION. We say so because it is clear from the body
of the decision that what the judge really intended, and actually ordered, was
to strike out the appeal and not to reject it summarily.
We now move
forward to consider the merits or otherwise of the appeal. We propose to do so generally and
briefly. Without hesitation we will say
outright that the appeal has merit for three reasons. One,
as shown above, the learned judge was of the view that there was no good cause
for the delay. Having found so, under
normal circumstances, that ought to have been the end of the matter, in which
case he should have dismissed the application.
Two, again as shown above,
the judge allowed the application because there were “special and peculiar
circumstances” without elaborating. With respect, the judge ought to have gone
further and state the “special and peculiar circumstances” he thought were
obtaining in the case. Indeed, this is
where Shekimweri’s case is
distinguishable from the present one in that in the former the “special and
peculiar circumstances” were mentioned. Three, the judge stated that “examining
the intended appeal” there were substantial points to be argued in connection
with the counts raised in the charge sheet.
Yet again, this statement was not substantiated. The judge ought to have stated exactly the
substantial points he had in mind. In
any case, it was unlikely that any substantial points could have been discerned
at that point in time because by then there was no memorandum of appeal or an
intended memorandum of appeal for that matter.
In the absence of such memorandum, there could hardly be any possibility
of saying that there were substantial points worth taking up on appeal. Needless to say, it is after looking at a
memorandum of appeal that one can see and appreciate the nature of complaints
or issues likely to be canvassed in an appeal, and thereby be in a position to say
whether there would be substantial points in the appeal.
For the
above reasons, we allow the appeal with the result that the decision of the
High Court, Lukelelwa, J. delivered on 15/7/2002 is quashed and set aside
DATED at DAR ES SALAAM this 16th day of
March, 2005.
A.S.L. RAMADHANI
JUSTICE
OF APPEAL
J.H. MSOFFE
JUSTICE
OF APPEAL
S.N. KAJI
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
( S.M. RUMANYIKA )
DEPUTY
REGISTRAR
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