SEIF SHARIF HAMAD v S.M.Z 1992 TLR 43 (CA)

 

SEIF SHARIF HAMAD v S.M.Z 1992 TLR 43 (CA)

Court Court of Appeal of Tanzania - Zanzibar

Judge Ramadhani JJA, Mnzavas JJA, Mapigano Ag. JA

13 March 1992

Flynote

Criminal Practice and Procedure - Jurisdiction - Ruling on preliminary point relating

to B jurisdiction of trial court - Whether appealable - Whether Court of Appeal has

jurisdiction to entertain the appeal.

Criminal Practice and Procedure - Appeal - Jurisdiction - Section 6(2) of the

Appellate C Jurisdiction Act, 1979 - Right to appeal.

-Headnote

After preliminary inquiry the appellant was committed to the High Court for trial. A

regional magistrate, Mr. Mmilla on extended jurisdiction was duly assigned to hear

and determine the case. Before hearing commenced the appellant raised a point of D

jurisdiction of the trial court. The court ruled that it had jurisdiction to try the case.

The appellant filed an appeal with the Court of Appeal challenging the ruling that the

regional magistrate, with extended jurisdiction, was legally competent to conduct the

trial. E

Before the Court of Appeal could entertain the appeal it considered whether it had

jurisdiction to hear the appeal in view of section 6 of the Appellate Jurisdiction Act,

1979 and also whether the appellant was competent to lodge the appeal. F

Held: (i) The ruling of Mr. Mmilla was a specie of interlocutory order, and following

our decision in Alois Kula we have no jurisdiction to hear an appeal against it under

the Appellate Jurisdiction Act, 1979;

(ii) the Court of Appeal has no inherent power to exercise jurisdiction where

no G right of appeal is provided;

(iii) our appellate jurisdiction derives from the Appellate Jurisdiction Act,

1979. Section 6 deals with criminal appeals like this one. Section 6(2) expressly

permits only the D.P.P. to appeal against any order of the High Court or subordinate

court in the H exercise of extended jurisdiction;

(iv) The appellant has no right of appeal.

Case Information

Appeal incompetent and premature. I

1992 TLR p44

RAMADHANI JJA, MNZAVAS JJA, MAPIGANO AG. JA

[zJDz]Judgment

Ramadhani and Mnzavas, JJ.A. and Mapigano, Ag. J.A.: The appellant, Seif A Sharif

Hamad, is challenging the ruling of Mr. Mmilla, Regional Magistrate, in the exercise

of extended jurisdiction, that he has the jurisdiction to try the appellant.

After the conduct of a preliminary inquiry the appellant was committed to the High

B Court for trial. His Lordship, the Chief Justice of Zanzibar, Mr. Hamadi, assigned

the case to Mr. Mmilla on extended jurisdiction. The appellant raised one major

preliminary point of jurisdiction at the trial, and that was whether Mr. Mmilla was

legally competent to conduct the trial.

This appeal was adjourned on the day it was first set for hearing. This court then C

required the counsel for the appellant, as well as the counsel for the

respondent/S.M.Z. to come to address it, when hearing is resumed, on whether or not

this Court has jurisdiction to hear the appeal in view of Section 6 of The Appellate

Jurisdiction Act, D 1979 as interpreted in our recent decision in Alois Kula and

Another v R., Criminal Appeal No. 121 of 1991 (unreported).

Before us, was Mr. Nowrejee, learned counsel. He had two main submissions.

First, he said that the decision in Alois Kula is to the effect that this Court does not E

have jurisdiction to hear appeals against interlocutory orders. He submitted that the

present appeal is not against an interlocutory order but against a decision on a

preliminary point of law. He argued that at the stage reached before the Regional

Magistrate no plea had been taken and assessors had not been chosen. In short the F

trial had not started. To him an interlocutory order is one made after a trial has

commenced but before it has been concluded. He argued that this appeal is founded

on fresh proceedings before Mr. Mmilla even before the trial had started. So, he G

concluded, what is before us is an appeal against a preliminary point of law not an

interlocutory order.

His second submission was that this Court has inherent and or residual powers of

appeal where the proceedings before the lower Court were a nullity or where

jurisdiction was lacking. He cited David Mbowa Ndele v R. Criminal Appeal No. 1 H

of 1989 (unreported) as his authority. In Ndede the Court of Appeal of Kenya used its

inherent or residual powers to hear an appeal against a conviction founded on a plea

of guilty while that is prohibited by Section 348 of the Criminal Procedure Code

which only allows appeal against sentence. I

1992 TLR p45

RAMADHANI JJA, MNZAVAS JJA, MAPIGANO AG. JA

Mr. Nowrejee then urged us to use our inherent and residual powers to hear this A

appeal.

On behalf of the respondent/S.M.Z. was Mr. Mutembei, learned State Attorney. He

submitted that the ruling of Mr. Mmilla was interlocutory. To him an interlocutory

order is one which is made by a court at any stage of the case but which does not

finally B determine the case.

Mr. Mutembei argued that the appellate jurisdiction of this Court is a creation of a

statute, The Appellate Jurisdiction Act, and that Section 6, does not admit of an appeal

against an interlocutory order. Mr. Mutembei relied on Alois Kula and A. - G v. C

Shah [1971] E.A. 50, which we have cited in Alois Kula, as his authorities for his

submission.

As for the issue of inherent and residual powers of this Court, Mr. Mutembei said that

the division in Ndode supports that in Alois Kula. The learned State Attorney

submitted that the prohibition on appeal against conviction after a plea of guilty is not

absolute D and it was so said in Ndode. But here, Mr. Mutembei argued, the

prohition on appeal against interlocutory order is absolute.

In reply Mr. Nowrejee stuck to his guns that there was no interlocutory order. E

Then Mr. Nowrejee contended that what gives this Court its jurisdiction is section 4

of the Appellate Jurisdiction Act which is broader in scope than Section 6. He

admitted that Section 6(2) permits the D.P.P. only, and not the other party, to appeal

against any order of the High Court. But he submitted that was not so in every

instance. Where F the issue is nullity of proceedings or want of jurisdiction there are

inherent and residual powers of appeal. Mr. Nowrejee pointed out that Alois Kula did

not deal with these two issues so it is distinguishable.

Mr. Nowrejee also argued that Section 6 of the Appellate Jurisdiction Act does not G

give a right of appeal to a party other than the D.P.P. by implication only and that the

right of appeal is not expressly denied. However, he added, the prohibition of appeal

against as conviction based on a plea of guilty, as provided in section 324 of the

Criminal Procedure Decree, like section 348 of the Kenyan Criminal Procedure H

Code, is expressly prescribed, So, he submitted, if, notwithstanding an express

prohibition, an appeal is entertainable, then it is a fortiori case where the prohibition

is by implication.

The first issue we have to determine is whether Mr. Mmilla's order was an I

interlocutory order or not.

1992 TLR p46

RAMADHANI JJA, MNZAVAS JJA, MAPIGANO AG. JA

Blacks Law Dictionary (Revised 4th ed) has this to say on interlocutory order: A

An order which decides not the cause, but only settles some intervening

matter relating to it ... B

Now, what was the "cause" before Mr. Mmilla? Was it whether or not he had

jurisdiction, and for that matter jurisdiction to do what? Or was the cause before him

whether or not the appellant was guilty of the charges facing him? We are not a shade

in doubt that the guilty or the innocence of the appellant was the cause before him,

and C that the preliminary point was raised just when he was about to try that cause.

It is plain that Mr. Mmilla's ruling did not decide the cause. The ruling, in our view,

was a specie of interlocutory order, and following our decision in Alois Kula we have

no D jurisdiction to hear an appeal against it under The Appellate Jurisdiction Act,

1979 of which we shall have more to say in a short while.

The second issue which calls for our decision is whether or not we have residual or

inherent powers over and above these given by the statute. E

This was categorically settled by our predecessor, the Court of Appeal for Eastern

Africa in Rex v John Christopher Nealon (1950) 17 E.A.C.A. 120 at 121 thus:

F This Court has no inherent power to exercise jurisdiction where no right of

appeal is provided.

That was reiterated by that Court twenty years later in A - G v Shah thus:

G It has long been established and we think there is ample authority for saying

that appellate jurisdiction springs only from statute. There is no such thing as

inherent appellate jurisdiction. H

And that is what we, also after another twenty years, have maintained in Alois Kula.

Our appellate jurisdiction derives from The Appellate Jurisdiction Act, 1979. Section

6 deals with criminal appeals like this one. Section 6(2) expressly permits only the I

D.P.P. to appeal against any order of the High Court or subordinate court in the

1992 TLR p47

RAMADHANI JJA, MNZAVAS JJA, MAPIGANO AG. JA

exercise of extended jurisdiction. Thus any party other than the D.P.P., like the A

appellant here, has no such right.

As we have mentioned Mr. Nowrejee submitted that that denial does not extend to

issue of nullity of proceedings or jurisdiction. With respect that is not so and has

never been so as this extract from R. v Nealon at page 121 vividly demonstrates: B

But learned Crown Counsel relying on Rex v Sironga has argued that the

revisional order in this appeal was made without jurisdiction and is a nullity so that in

his submission the order appealed from was not a valid order in revision and in his

submission an appeal C lies on point of jurisdiction.

The Court then went on to say that:

It may well be thought most extraordinary that no appeal should lie from an

order D purporting to be made in revision either on a point of law or on point of

jurisdiction, but we must take the law as we find it and under the law the right of

appeal to this Court from the Supreme Court of Kenya exists only in cases where a

right of appeal is provided by the E laws of Kenya and there is no such provision

applicable to this case. This Court has no inherent power to exercise jurisdiction

where no right of appeal is provided. (emphasis provided).

If we substitute Tanzania for Kenya wherever that name appears and the High Court

F for the Supreme Court, then the analogy is complete.

The reasons for prohibiting a party other than the D.P.P. from appealing against

interlocutory orders are not far to seek. The criminal proceedings would undoubtedly

G be very protracted as an accused person would be attracted to appeal against every

order.

That ought to have disposed the appeal but from brotherly respect to our colleagues

in the Court of Appeal of Kenya we have to say a thing or two on Ndede.

First, we could say that the decision is of mere persuasive authority. That is an easier

H thing to do but it is escapist. So, secondly, we say that even this Court has done the

same in similar cases like Ndede because then the appellant comes with reasons

saying that "I did not plead guilty" or words to that effect. The Court then has to

assess the plea whether it was one of guilty or not. If it was of guilty then that

disposes of the I matter forthwith, because there is

1992 TLR p48

no right of appeal against a proper plea of guilty. A

We want to make it abundantly clear that our decision does not finally determine the

rights of the appellant. After the trial before Mr. Mmilla is over, and if the appellant is

aggrieved, he can still come back and raise the issue of jurisdiction as one of his

grounds B of appeal. So this appeal is incompetent and premature and we dismiss it.

C Appeal dismissed.

1992 TLR p48

D