Zuberi Mkulamusa Mashikamo v. Republic, Cr app no 198 of 2004 (Robbery)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:      MROSO, J.A., NSEKELA, J.A. And MBAROUK, J.A.

CRIMINAL APPEAL NO. 198 OF 2004

ZUBERI MKULAMUSA MASHIKAMO

VICTORY MNONJELA                         ……….………..…….. APPELLANTS

VERSUS

THE REPUBLIC …………………………………….....………...… RESPONDENT

(Appeal from the Decision of the High Court of Tanzania

at Mtwara)

(Lukelelwa, J.)

dated the 31^st day of August, 2004

in

Consolidated Misc. Criminal Applications Nos. 49 - 50 of 2003

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REASONS FOR THE COURT ORDER

MROSO, J.A.:

        Earlier this morning when the appeal was called on for hearing the Court invoked the provisions of section 4 (2) of the Appellate Jurisdiction Act, 1979 to quash and set aside an order of the High Court at Mtwara, Lukelelwa, J., dated 31^st August, 2004 which dismissed the appellants’ joint applications both for extension of time to lodge a notice of appeal and to lodge an appeal to the High Court.  The Court, also acting under the same provision cited above, stepped into the shoes of the High Court and allowed the appellants’ applications for enlargement of time to lodge a notice of appeal and to appeal out of time.  We reserved our reasons which we now endeavour to give, albeit briefly.

        The appellants were convicted for robbery with violence by the District Court for Masasi District and were each sentenced to a prison term of fifteen (15) years.  They were aggrieved by the conviction and sentence and sought to appeal to the High Court.  But they were late to lodge both the notice of appeal and their memorandum of appeal.  So, they filed chamber applications in the High Court for enlargement of time.  The applications were supported by affidavits of the respective appellants.  Each appellant annexed to the Chamber Application an intended memorandum of appeal.

        The applications were heard by Lukelelwa, J. who found the reasons for delay contained in the respective affidavits meritorious.  He said:-

“The applicants’ failure to lodge their documents for appeal within the prescribed time had a good cause.”

        One would have expected that the learned judge having found that sufficient cause had been shown for the delay to lodge the notices of appeal and the memoranda of appeal, he would allow the applications.  But that was not to be.  The learned judge looked at the unlodged memoranda of appeal, considered the grounds therein and decided that the intended appeals had no merit because, in his view, the appellants had been “caught in a (sic) flagrante delicto so to speak.”  He proceeded to observe:-

“It follows therefore that the applicants have got no point to argue at the intended appeal.  Allowing this application would be a futile exercise, …..  A point which appears arguable at the intended appeal would be the enhancement of the sentence to thirty years imprisonment, because the offence was committed by more than one person, in compliance with Act 10 of 1969.

     I understand the applicants do not intend to argue that point as it’s against their interests.

     I therefore refuse these applications.”

        It is apparent that although the learned judge found the intended appeal “a futile exercise”, yet he found that the sentence which was imposed by the trial court might need enhancement if there had been an appeal.  It is not clear from the part of the High Court ruling which we quoted above whether the sentence was thereby enhanced or it was left intact.

        We think that the learned High Court judge was not entitled to consider at that stage the merits of the intended appeals and was not entitled to refuse otherwise meritorious applications for the reasons he gave.  The High Court appeared to have dismissed summarily an appeal which had not yet been filed.   In our considered view, the High Court had no right to anticipate arguments which might be raised in an appeal which was not before it and pass judgment against it.  What the High Court should have done was to allow the applications which it found to have merit.  If and after the appeals had been lodged and the High Court found them to have no merit at all it could legitimately act under section 364 of the Criminal Procedure Act, 1985 which in paragraph (c) of sub-section (1) of the section it provides that:-

“364 (1) On receiving the petition (of appeal) and copy required by section 362, the High Court shall peruse the same and –

…..

(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 the appeal has been lodged without any sufficient ground of complaint.”

The High Court therefore erred in rejecting the applications before it for the untenable reasons it gave.

        The appellants wrongly, but understandably, thought that the High Court had decided on their intended appeals to it and they purported to appeal against such decision to this Court.  We cannot comment on the grounds of appeal to this Court because, in fact, there was no appeal to the High Court yet.  There was only an intention to appeal to the High Court if time to lodge a notice of appeal had been enlarged and, thereafter, if such applications were granted, to lodge the appeal.

        We have already done what the High Court ought to have done by extending the time to lodge the notices of appeal to today,     12^th December, 2007.  The petitions of appeal to the High Court are already in the High Court record and should be deemed to have been duly lodged.  The High Court is directed to hear those appeals soonest on merit.  Thereafter, a dissatisfied party may appeal to this Court if they deem it necessary.

        DATED AT DAR ES SALAAM this 13^th day of December, 2007.

J. A. MROSO

JUSTICE OF APPEAL

H. R. NSEKELA

JUSTICE OF APPEAL

M. S. MBAROUK

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

(I. P. KITUSI)

DEPUTY REGISTRAR