DANIEL s/o MAOGELE AND TWO OTHERS v REPUBLIC 1990 TLR 62 (CA)

 DANIEL s/o MAOGELE AND TWO OTHERS v REPUBLIC 1990 TLR 62 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Kisanga JJA, Ramadhani JJA and Mfalila JJA

16 July 1990

Flynote

B Criminal Practice and Procedure - Appeal - Conviction of murder - Notice of

appeal - Appeal against sentence - Nature of such notice - Whether appeal has been

instituted.

Criminal Practice and Procedure - Representation - Conflict of interest among

accused - Need for separate C representation.

-Headnote

This appeal, from the conviction of murder by the High Court of Tanzania, was

brought before the Court of Appeal for hearing. Before hearing two matters arose.

First, the advocate for the three appellants said that there was D conflict of interests

among the accused persons. Second, the Court on its own motion pointed out that the

appeal before was against the mandatory sentence of death. On the basis of second

reason the advocate for the appellants held the view that there was no appeal before

the court.

E Held: (i) (Kisanga J.A. dissenting). That the notice before the court is valid but

defective and that an emended version was necessary;

(ii) in view of the apparent conflict of interests among the appellants another

advocate is to be assigned.

F (iii) (Per Kisanga, J.A.) no appeal has so far been instituted because the

appellants have given no notice to appeal against conviction, their notice to appeal

against sentence only being invalid.

Case Information

Appeal adjourned.

G Marando, for the appellants

Kaduri, state attorney for the Republic

[zJDz]Judgment

H Ramadhani and Mfalila, JJ.A.: Mr. Marando, learned counsel, informed the Court,

when the appeal came up for hearing, that as there was a conflict of interests among

the appellants, he was unable to represent all three of them and consequently his

failure to file any memorandum of appeal. Mr. Marando drew our attention to the fact

I that two counsel were assigned at the trial. He therefore applied for adjournment so

that additional counsel could be appointed. Mr. Kaduri for the respondent Republic

did not object to the application.

1990 TLR p63

RAMADHANI JJA and MFALILA JJA

The Court on its own motion drew the attention of Mr. Marando to the joint notice of

appeal of the appellants. It is A stated there that the appeal is against the mandatory

sentence of death which was imposed consequent to the conviction for murder. Mr.

Marando opined that the appeal ought to have been against conviction.

Indeed section 6 (1) of the Appellate Jurisdiction Act, 1979 prescribes so when it

provides, in the relevant part, as B follows:

6 (1) Any person convicted on a trial held by the High Court or by a

subordinate Court exercising extended powers may appeal to the Court of Appeal. C

(a) where he has been sentenced to death, against conviction on any ground of

appeal;

The Court of Appeal is seized of an appeal when a notice of appeal is lodged. The issue

now is whether with this D anomaly, that is a notice of appeal against sentence

instead of against conviction, it can be said that the Court is seized of an appeal. In

other words has a valid notice of appeal been lodged.

Mr. Marando was of the opinion that there was in effect no appeal at all before the

Court and hence it was wrong E on his part to ask for an adjournment as there was

nothing to be adjourned.

A similar situation like this arose in the appeal of Jamal Ismail v R. Criminal appeal

No. 163 of 1989. This court upheld the argument that there was a notice of appeal

before the Court but that it was defective. We would F therefore reiterate what we

had said earlier on in Jamal Ismail v R. That:

Complete failure to file any notice at all would render the proposed appeal

incompetent. It would be rather akin to G complete failure to extract the decree in a

proposed Civil appeal. In the instant case some attempt was made to comply with the

Rule and without the guidance of counsel. There can be no doubt that this was an

unintentional slip by laymen, there being no possibility of appealing against sentence

only. H

As such the Court is seized of the appeal and we direct Mr. Marando to amend the

notice of appeal informally and we further direct the Registrar to assign another

counsel for the third appellant while Mr. Marando represents the first two appellants.

The appeal is adjourned to a date to be fixed. I

1990 TLR p64

KISANGA JA

A Kisanga, J.A.: I have had the advantage of reading in draft the majority ruling of

the court in this matter. The background to the matter has been set out in the

majority ruling I need not repeat it here.

The only point on which opinion is divided is whether there is an appeal before us

which we can adjourn to enable B counsel to take further steps in the matter. The

majority view is that there was a defective notice which in law constituted the appeal

and therefore the court could validly adjourn such appeal for the purposes as

intimated above. I am of a different view.

C The Court of Appeal in its function is guided by the Appellate Jurisdiction Act

1979 and the Court of Appeal Rules also of the same year. It is these two instruments

which guide the Court of Appeal in the exercise of its function which is exclusively

appellate. The right and procedure of appeal by persons who have been sentenced to

death are to be found under the Appellate Jurisdiction Act and the Court of Appeal

Rules. The majority view D acknowledges that, in terms of section 6 (1) of the

Appellate Jurisdiction Act there is no provision for appeal against sentence only; there

is only provision in the Court of Appeal Rules which sanctions an appeal against

sentence only.

E I am unable to accede to the majority view that the appellants being laymen, and

acting without the guidance of counsel, took as wrong view of the law and

unintentionally appealed against sentence only. The record shows that after passing

the death sentence on 20.9.89 the trial judge explained to the appellants their right of

appeal. In the F absence of any indication to the contrary, the learned judge must be

taken to have explained to them fully their right of appeal including the right to

appeal against conviction; there can be no reason to think that he did not explain to

them their right of appeal against conviction, and indeed the appellants have not

suggested so. On the same day (20.9.89) the appellants gave notice of appeal in the

following terms:

G The appeal is against the sentence only.

That sentence is couched in terms which clearly show that the appellants were aware

of more than one right of appeal but that they consciously chose to exercise the right

to appeal against the sentence only. That would be H consistent with the view that

the trial judge must have explained to them their right to appeal against conviction as

well but they opted against it and in favour of appealing against the sentence only.

I Not only that. The appellant's notice of appeal was in strict compliance with the

requirements of the law. Rule 61 of the Court of

1990 TLR p65

KISANGA JA

Appeal Rules says, inter alia, that: A

61 (1) any person who desires to appeal to the Court shall give notice in writing,

which shall be lodged in triplicate with the Registrar of the High Court at the place

where the decision against which it is desired to appeal was given, within B fourteen

days of the date of that decision, and the notice of appeal shall institute the appeal.

(2) ....

(3) ....

(4) ....

(5) ..... C

(6) ....

(7) a notice of appeal shall be substantially in the form B in the First

schedule to these Rules and shall be signed by or on behalf of the appellant. D

The relevant part of Form B reads:

TAKE NOTICE that............appeals to the Court of Appeal of Tanzania against the

decision of the Honourable Mr. Justice..... given at..........on the ...........day

of...................19....... whereby the appellant was convicted to.....................and E

sentenced to............................................................

The appeal is against conviction only/conviction and sentence/sentence only. F

The marginal note says: "Delete inappropriate words or amend as necessary".

In compliance therewith the appellants gave their joint notice of appeal within the

prescribed time limit and opted to appeal against sentence only. In other words the

law gave them three options, viz. to appeal against conviction only G or to appeal

against both conviction and sentence or to appeal against sentence only and required

them to show which option they chose the last option, namely, to appeal against

sentence only, thereby deleting or missing out the options to appeal against

conviction or against conviction and sentence. That was clearly a conscious act of H

selecting or choosing one option out of three given options, and I could find no room

for the view that the appellants might have taken a wrong view of the law or that

they might have been under some misapprehension as to their rights of appeal or as to

which right of appeal exactly they intended to exercise. I

1990 TLR p66

KISANGA JA

A There is equally no support for the view that notice of appeal was defective. For,

the notice was given within the prescribed time limit, and it was in accordance with

the appellants' own wish or intention in that the appellants, out of the three specified

options, desired to appeal against sentence only and they in fact did just that. I can see

nothing B defective about that. It would have been a different matter if it appeared

that the appellants had wished or intended to appeal against conviction or against

conviction and sentence but that for one reason or another they could not achieve

that aim. But, as has been demonstrated out of the three options open and known to

them, the C appellants chose not appeal against conviction or conviction and

sentence; instead they chose to appeal against sentence only. There was nothing to

prevent them from appealing against conviction or against conviction and sentence if

they were minded to do so. In short, my own view is that at the time of giving the

notice of appeal, the D appellants had no intention of appealing against their

conviction otherwise there was nothing to prevent them from doing so. To my mind

the appellants' express declaration that "The appeal is against the sentence only"

means precisely what it says and could not possibly be said to include, or to be

confused with, a wish or intention to E appeal against conviction. To say that

declaration includes an intention to appeal against conviction would be tantamount to

ascribing to the appellants an intention which they did not have, and that in my

opinion would be patently wrong.

To my mind it would not be quite correct either to compare, like the majority view

has done, the situation here with F one in civil cases where there has been failure to

extract the decree. The two situations appear to be different. In the civil case the

ground for complaint would be that an intending appellant has failed to take an

essential step in the proceedings i.e. to extract the decree. That necessarily

presupposes that the appeal, meaning the proceedings, is G already instituted. In the

instant case, however, the view I have taken is that no appeal has so far been

instituted or initiated. That is to say the appellants have given no notice (or purported

notice) of appeal against conviction to institute an appeal against conviction. What

they have done is to give notice of appeal against the death sentence H only, which

in law does not exist or is not sanctioned, and which therefore the court cannot take

cognizance of.

For the reasons I have endeavoured to give, it seems plain to me that at the time of

giving the notice, the appellants I did not wish or intend to appeal against conviction

even though they were aware of that right. Such intention was formed by, or ascribed

to them only subsequently but then no necessary steps have so far been taken to

1990 TLR p67

effect such subsequent intention. In my view, therefore, there was no question of the

appellants having given a A defective notice of appeal or having made an attempt to

appeal against conviction because they had no intention of appealing against

conviction at the material time. There was simply no notice or a purported notice of

appeal against B conviction. There was merely a misconceived appeal against

sentence only.

I would therefore, with respect, subscribe to Mr. Marando's view that there is in law

no appeal before us because no notice has been given to institute or initiate the same.

On that account I would have declined to grant an C adjournment because in law

there is nothing before us which can be adjourned. In my view to grant an

adjournment and to require counsel to amend such misconceived notice of appeal

would amount to an attempt to improve upon something which, in law, does not

exist. I would have struck out the appeal as being misconceived and counsel to D

take the necessary steps of applying to the convicting court, under section 11 (1) of

the Appellate Jurisdiction Act, for extension of time to file notice of appeal against

conviction.

Order accordingly. E

1990 TLR p67

F