MUSSA ALOBOGAST MTALEMWA v REPUBLIC 1992 TLR 177 (CA)

 MUSSA ALOBOGAST MTALEMWA v REPUBLIC 1992 TLR 177 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Ramadhani JJA, Kisanga JJA, Mnzavas JJA

29 June 1992

Flynote

Criminal Practice and Procedure - Jurisdiction - Whether Court of Appeal has

revisional B jurisdiction.

Court of Appeal Rules - Jurisdiction - Whether Court of Appeal can reinstate

judgment of a District Court reversed by the High Court without a cross-appeal by

the Republic to the Court of Appeal - S.4(2) Appellate Jurisdiction Act 1979 and s. 36

of the Tanzania Court C of Appeal Rules, 1979.

Court of Appeal Rules - Criminal Appeals to Court of Appeal - Procedure and practice

- Appellate Jurisdiction Act 1979 and the Tanzania Court of Appeal Rules, 1979. D

-Headnote

In the District Court of Ilala was Mussa Alobogast Mtalemwa charged together with

two other persons. Mtalemwa, the appellant was convicted of robbery while the rest

were set free. He appealed to the High Court which quashed the conviction on

robbery E and substituted it with one of receiving stolen property c/s. 311 (1) of the

Penal Code, Cap 16. Still dissatisfied with this conviction he appealed to the Court of

Appeal. However there was no cross - appeal by the Republic against the judgment of

the High Court.

When hearing the appeal, the Court of Appeal invited counsel for the appellant to F

address the Court on whether the Court had jurisdiction to quash the decision of the

High Court and restore that of the District Court without there being a cross-appeal

by the Republic. Counsel for the appellant contended that the Court had no

jurisdiction to reinstate the judgment of the District Court and that the Court has no

revisional G jurisdiction.

Held: (i) The Court of Appeal lacks revisional jurisdiction;

(ii) when a party appeals to this Court, the Court is not just limited to either

upholding the appeal and granting the reliefs prayed for or to dismissing the appeal H

and leave intact the decision appealed from;

(iii) if a party appeals against conviction, then, instead of dismissing the appeal

or of allowing it and acquitting him, this Court could find him guilty of an offence

more I serious than the one with which he was charged and acquitted by the lower

Court and

1992 TLR p178

RAMADHANI JJA, KISANGA JJA, MNZAVAS JJA

consequently enhance the sentence. Likewise, if the appeal is against sentence only,

in A appropriate case, this Court could enhance it instead of reducing it as pleaded

by the appellant, or just leave it intact.

Case Information

Appeal dismissed. B

Maina, for the appellant

Munisi, for the respondent

[zJDz]Judgment

Ramadhani, Kisanga and Mnzavas, JJ.A.: The appellant, Mussa Alobogast C

Mtalemwa, was charged together with two other persons. One of them was acquitted

as there was no case to answer. The other was acquitted of the charge of receiving

stolen property. The appellant, on the other hand, was convicted of robbery.

The District Court of Ilala was satisfied that on 3rd July, 198 (at about 8.15 p.m.) D

PW.1 was driving a saloon car, TZA 159, belonging to PW.2, along Bagamoyo Road.

The appellant and another person stopped him for a lift to Keko. The appellant sat on

the front seat and suddenly he pointed a pistol at PW.1 ordering the car to be driven

to the National Stadium where PW.1 was ditched out and beaten to unconsciousness.

E When PW.1 regained his senses he reported the matter to the Kilwa Road Police

Station where he was taken to the Oysterbay Police Station. On 5th July as PW.1 was

in a Police car going through the Morocco Road he spotted out what he was

convinced to have been his stolen car but then it had AAJH 5238 as its registration

number. The F driver of that car refused to stop. So the Police Van gave chase and

the driver came to a halt when, according to PW.4, a pistol was leveled at him. The

appellant was that driver and PW.1 identified him as one of the two robbers.

In his defence the appellant alleged that the vehicle was given to him by the second

G accused person to process pre-registration formalities of evaluation and custom fees

as it had been imported from Zambia. As already said that story was rejected by the

trial Court.

On appeal to the High of Tanzania (Mkwawa, Ag. J., as he then was) quashed the H

conviction of robbery and substituted it with one of receiving stolen property

contrary to section 311 (1) of the Penal Code. The learned Judge had two reasons for

doing so. One, he said "when the only evidence against an accused is the finding of

recently stolen property in his possession, an accused is entitled to an acquittal if he

gives an explanation which may reasonably be true". Two, the learned Judge

reiterated that "it I is unsafe to support

1992 TLR p179

RAMADHANI JJA, KISANGA JJA, MNZAVAS JJA

a conviction on the bare assertions of witnesses that they had recognized the A

accused". He went on to cite the case of Ludovick s/o Kashaku v. R [1967] HCD 194

where reasons for identification, such as the sound of voices or distinctive clothing,

were required to be given. The Judge then reduced the punishment from fifteen to

eight years imprisonment. B

The appellant had a memorandum of appeal containing four grounds of appeal.

However, his learned advocate, Mr. Maira, decided to abandon the second ground,

argued the first and the third grounds together, and concluded with the fourth

ground. The respondent/Republic was represented by Miss Munisi, learned State

Attorney. C

For reasons which will be obvious in a moment, we do not deem it necessary to make

a resume of the submissions for an against the appeal. When we were deliberating on

the appeal so as to write a judgment, we were in no doubt about the guilt of the D

appellant. What exercised our minds was whether the appellant was not after all

guilty of robbery as the District Court had found him to have been.

That thought, in its turn, brought to the surface two preliminary points. The first was

that we had not been addressed on whether or not the appellant is guilty of robbery.

E Second, we wondered whether we could quash the decision of the High Court and

restore that of the District Court without there being a cross-appeal by the Republic.

To clear up those two points we decided to re-open the matter and invite both

Counsel to address us after we had given them a sufficient notice. F

Mr. Maira was resolute that this Court could only uphold the judgment of the High

Court or quash it and acquit the appellant and that the Court does not have

jurisdiction to reinstate the judgment of the District Court. He had two reasons for

saying so: First, G he said, this Court could only act where there is before it a writ of

error and that it was not for the Court to search for errors. Here, the learned Counsel

submitted, the writ of error before us challenged the conviction against receiving

stolen property and that there was no writ of error challenging the acquittal of the

appellant of the charge of H robbery which is what the High Court had done. As his

second reason Mr. Maira pointed out that this Court lacks revisional jurisdiction and

so it could not invoke those powers to reinstate the judgment of the District Court.

As to whether or not there is sufficient evidence on record to sustain a conviction for

I robbery, Mr. Maira submitted that there are

1992 TLR p180

RAMADHANI JJA, KISANGA JJA, MNZAVAS JJA

grave doubts on the correctness of the identification of the appellant by PW.1. The A

learned Counsel contended that what PW.1 identified was the vehicle when he came

across it on Morocco Road and not that the appellant was the robber.

Miss Munisi, on the other hand, said that it was open to this Court to ascertain the B

propriety or otherwise of the quashing of the conviction of robbery by the High

Court without there being a cross-appeal. She referred us to section 14 (2), of the

Appellate Jurisdiction Act, 1979 (hereinafter referred to as the Act) and she also cited

the decision of the East African Court of Appeal in Merali and Others v R. [1971]

H.C.D. No. 145. C

As for the conviction of robbery, Miss Munisi submitted that the identification of the

appellant by PW.1 was not challenged in cross-examination. Then she added that the

invocation of the doctrine of recent possession was proper as the appellant was caught

driving the vehicle just three days after the robbery. Miss Munisi concluded that the

D conduct of the appellant at the time of arrest was inconsistent with the

presumption of innocence.

Admittedly we lack revisional jurisdiction, so, can we act where there is no cross

appeal?

This question was considered by this Court in Godfrey James Ihuya and 3 Others E v

R. [1980] T.L.R. 197. This Court dismissed the appeals of the appellants and upheld

the convictions of manslaughter against all four of them. The matter then which was

debated was whether this Court could enhance the punishment given to them

without there being a cross appeal by the Republic. It was held that this Court had

such F powers. Reliance was put on Rule 36 of the Tanzania Court of Appeal Rules,

1979, which reads:

The Court may, in dealing with any appeal, so far as its jurisdiction permits,

confirm, G reverse or vary the decision of the High Court, or remit the proceedings

to the High Court with such directions as may be appropriate, or to order a new trial,

and to make any necessary incidental or consequential orders, including orders as to

costs.

It was held that the word "vary" in this Rule means that "the Court has power to H

increase or decrease the sentence when either the prisoner or the Republic appeals".

The word "vary" is subjected to "so far as its [Court's] jurisdiction permits". The

question is whether jurisdiction permits,. So here we go further to say that when a I

party appeals to this Court

1992 TLR p181

RAMADHANI JJA, KISANGA JJA, MNZAVAS JJA

then we are not just limited either to uphold the appeal and grant the reliefs prayed

for A or to dismiss the appeal and leave intact the decision appealed from. The party

who appeals lays himself bare and gives the Court the power it would not have had if

he had not appealed. Thus there is a third alternative. This is where the Court says:

'Yes, the lower Court has indeed erred but not in the way the appellant contends that

injustice B has been done to him but rather that the appellant ought to have been

found guilty of a more serious offence or that he deserved a stiffer sentence than the

one that was administered to him'. Thus if a party appeals against conviction then

instead of dismissing the appeal or of allowing it and acquitting him, this Court could

find him C guilty of a more serious offence of which he was charged but acquitted

by the lower Court and consequently enhance the sentence. Likewise, if the appeal is

against sentence only, then, in appropriate case, this Court could enhance it instead of

reducing it as was pleaded by the appellant or leaving it intact. D

Mr. Maira talked about a writ of error. First of all a writ of error was the mode of

appealing used in criminal proceedings in England but that was abolished by section

29 (1) of the Criminal Appeal Act, 1907. So that is not the requirement even in

England E now. Be it as it may, in Tanzania appeals to this Court are governed by

the Act and the Tanzania Court of Appeal Rules, 1979 made under it. A party to a

criminal proceedings in the High Court or in a subordinate Court with extended

jurisdiction who has a right of appeal under the Act has first to file a Notice of Appeal

under Rule 61. In such F Notice of Appeal the aggrieved party indicates whether the

appeal is against conviction or sentence or both. Now the notice of appeal has the

effect of delimiting our powers to what is appealed against. It would be outside our

powers to look into conviction when the notice of appeal was on sentence only. The

appellant then has to concisely G enumerate his grievances in a memorandum of

appeal (Rule 65). This is what, we suppose, Mr. Maira calls a writ of error. Without

the leave of the Court, the appellant would not be heard on any matter not contained

in the memorandum of appeal (Rule 74 (a)). It seems to us utterly inconceivable that

whereas we can allow an appellant to H go outside his memorandum, we cannot

ourselves do so. Now once we have done that and have come to the opinion that the

lower Court had erred we then can step into the shoes of the lower Court and make

the necessary corrections under section 4 (2) of the Act as Miss Munisi submitted and

as was done by our predecessor in Merali's case. I

1992 TLR p182

In fact this Court again did that in Abdurabi Ally Yusufu & Ally Yusufu Abdurabi v.

A R. Criminal Appeal No. 59 of 1988 (unreported). that was an appeal of a former

Member of Parliament for Songea against his conviction of unlawful possession of

Government trophies. This Court found him guilty of the more serious offence of

dealing in Government trophies of which he had been charged in the alternative but

was B acquitted by the learned trial judge. There was no cross-appeal and in fact the

appellant was neither represented nor was personally present at the hearing of the

appeal as he had indicated his desire not to be present.

We have found it pertinent to dwell on this point for a considerable length for the

sake C of dispelling any doubt as to the powers of this Court in the absence of a

cross-appeal.

Now to get back to the substance of the appeal, we agree with Miss Munisi that there

is watertight evidence with which to convict the appellant of robbery. The doctrine

of D recent possession coupled with the inexplicable criminal conduct immediately

prior to his arrest corroborates the identification by PW.1 though that was not

necessary.

We therefore quash the conviction of receiving stolen property and substitute it was

E one of robbery c/s 285 and 286 of the Penal Code. The sentence of eight years

passed on him is hereby enhanced to the minimum sentence of thirty years provided

by the amendment of Act No. 10 of 1989.

F Appeal dismissed.

1992 TLR p182

G