Edwin Urio v. DPP Criminal appeal no 105 of 2002 (office breaking and stealing)

IN THE COURT OF APPEAL OF TANZANIA

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 15^th 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 and stole his fellow employees’ salaries, revenue collections, medical licence fees, and 100 books of medical treatment contribution fees.  The total value of the stolen cash and items was Shs.23,215,809/20.  Following the acquittal, one E.S.A. Mmari SSP Regional C.I.D. Officer Shinyanga, filed a notice on 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  16^th  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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