ABDUL ALI ISSA v REPUBLIC 1989 TLR 16 (HC)

 ABDUL ALI ISSA v REPUBLIC 1989 TLR 16 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Kyando J

4 March, 1989

Flynote

Criminal Practice and Procedure - Appeals - Right of appeal - Witness aggrieved by

order H of the court - Whether such witness has a right to appeal.

Criminal Practice and Procedure - Appeals - Right of appeal - Order made on a trial

for the restitution of property - Whether "any person aggrieved" by such order

includes a person who is not a party to the case - Section 358(5) Criminal Procedure

Act construed. I

1989 TLR p17

KYANDO J

-Headnote

The appellant was a witness in a criminal case. At the conclusion of the trial the

District A Court ordered that 604 bales of second hand clothes, mitumba, which

were exhibits in the case be restored to Sadrudin Suleman, the other respondent, who

was one of the accused persons at the trial. The accused were discharged. The

appellant was dissatisfied by the restoration order. B

On appeal it was argued that the appeal was incompetent because, inter alia, the

appellant had no right to appeal. The court considered under what circumstances a

person who is not a party to the proceedings may appeal. C

Held: (i) A person cannot appeal against an order made under s. 357 of the C.P.A.

relying on subsection (5) of s. 358 of the C.P.A. because the subsection says "any

person aggrieved by an order made under this section", i.e. s. 358;

(ii) an order which can be appealed from by "any person aggrieved" under D

subsection (5) of section 358 is an order made on a trial for the restoration of

property;

(iii) before an order under s. 358 C.P.A. becomes appellable, there has to be a

trial for restitution of property;

(iv) it is only a party to the restitution of property proceedings who may

appeal E against an order of restoration; and not anyone else;

(v) section 358 C.P.A. applies only to situations where an accused has been

prosecuted to conviction. Since the accused was discharged section 358 C.P.A. does

not apply. F

Case Information

Appeal dismissed.

Y. Mchora, for Appellant

Malaba and Kesaria for Respondents. G

[zJDz]Judgment

Kyando, J.: The appellant was a witness in Criminal Case No. 179 of 1987 of the

District Court of Dar es Salaam, at Kisutu. He was PW11. At the conclusion of the

trial the District Court ordered that 604 bases of second hand clothes, popularly

known as H "mitumba", which were exhibits in the case be restored to Sadrudin

Sulemani The said Sadrudin Sulemani was an accused person in the case. He was the

third accused. The appellant appeals against the order that the exhibits be restored to

Sadrudin Sulemani. He contends that the Court should have ordered that they be

restored to him and not to I Sadrudin Sulemani.

1989 TLR p18

KYANDO J

A At the commencement of the hearing of the appeal Mr. Kesaria for Sadrudin

Sulemani, the second respondent in this appeal, took points of preliminary objections

to the appeal. He contended that the appeal is incompetent and should not proceed to

hearing. He based his contentions on the following three points: B

(1) That the appellant is not the proper person, and has no right, to appeal

in the case.

(2) That no notice of intention to appeal was given by the appellant as

required by law.

(3) That the judgment or order appeared from was not accompanied with

the C petition of appeal, again as required by law.

Mr. Malaba, learned State Attorney, who appeared for the Republic/first respondent,

D supported Mr. Kesaria in these objections. They both then prayed that I dismiss the

appeal for incompetence.

Mr. Mchora for the appellant maintained that the appeal is competent and prayed

that I overrule the objections raised by his two learned friends. This ruling is on these

opposing contentions of the learned counsel. E

I will start with the first point raised by counsel for the respondents, and that is that

the appellant has no right of appeal in the case. Mr. Mchora submitted that the appeal

is made under s. 358(5) of the Criminal Procedure Act, 1985. This subsection

provides: F

358(5) Any person aggrieved by an order made under this section may appeal

to the High Court and upon the hearing of such appeal the court may, by order annul

or vary any order G made on a trial for the restitution of any property to any person,

although the conviction is not quashed; and the order, if annulled, shall not take

effect, and if varied, shall take effect as so varied.

Mr. Mchora argued that his client, the appellant, derives the right to appeal in this

matter H from these provisions of the C.P.A. Mr. Kesaria on the other hand argued

that it is only a person who is a party to a case who can acquire rights to appeal from

any decision of a court in that case. He contended that because the appellant was a

mere witness in the instant case he has no right of appeal and his present appeal is

incompetent I and it is unmaintainable.

1989 TLR p19

KYANDO J

As I have said Mr. Mchora relied on s. 358(5) C.P.A. To appreciate the provisions of

A the sub-section fully I think it is important to consider the provision of s. 357

C.P.A. and also those in the remaining sub-sections of s. 358. Section 357 provides:

Where, upon the apprehension of a person charged with any offence, any

property is taken B from him, the court before which he is charged may order -

(a) that the property or party thereof be restored to the person who

appears to the court to be entitled thereto, and if he be the person charged, that it be

restored either to him or to such other person as he may direct or C

(b) that the property or part thereof be applied to the payment of any fine

or any costs or compensation directed to be paid by the person charged.

Section 358 provides: D

358 (1) If any person guilty of an offence mentioned in chapters XXVI to

XXXI, both inclusive, of the penal code, in stealing, taking, obtaining extorting,

converting or disposing of, or in E knowingly receiving any property, is prosecuted

to conviction by or on behalf of the owner of such property, the property shall be

restored to the owner or his representative.

(2) In every case referred to in this section the court before which such

offender is F convicted shall have power to award from time to time writs of

restitution for the said property to order the restitution thereof in a summary manner,

save that: G

(a) Whether goods as defined in the sale of goods ordinance have

been obtained by fraud or other wrongful means not amounting to stealing, the

property in such goods shall not revest in the person who was the owner of the goods

or his H personal representative by reason only of the conviction of the offender;

and

(b) Nothing in this section shall apply to the case of any valuable

security which has been in good faith paid or discharged by some person liable to the

payment thereof, or being a negotiable instrument has been in good faith taken or

received I by transfer or delivery by

1989 TLR p20

KYANDO J

some person for a just and valuable consideration without any

notice or without A reasonable cause to suspect that the same has been stolen.

(3) On the restitution of any stolen property if it appears to the court by

the evidence that the offender has sold the stolen property to any person, and that

such person had no B knowledge that the same was stolen, and that money has been

found in possession of and taken from the offender on his apprehension the court

may, on the application of such purchaser, order that out of such money a sum not

exceeding the amount of the C proceeds of such same be delivered to the said

purchaser.

(4) (Not applicable). D

Mr. Mchora argued that the words "any person aggrieved" in sub-s.(5) of s.358 mean

what they say, i.e. anyone whatsoever who is dissatisfied by an order for restoration

made by a subordinate court can appeal from that order to the High Court. He argued

E that the appellant was aggrieved by the order made in this case by the trial court

and being "a person", even though he was only a witness, he has the right of appeal

under the above sub-section.

Section 358 is rather difficult to construe. But to my understanding, sub-s.(5) applies

F only to section 358 and not to s. 357 also. This means that one cannot appeal

against an order made under s. 357 relying on sub-s.5 of s.358, because the sub-section

says "Any person aggrieved by an order made under this section", i.e. s. 358. It is

important to make this clear because in their arguments before me learned Counsel

did not seem to G make a distinction between orders made under s. 357 and these

made under s. 358. Mr. Mchora in particular appeared to be of the view that a person

aggrieved by an order made under s. 357 can appeal under s. 358 (5) against it.

Secondly, it would appear that an order which can be appealed from by "any person

H aggrieved" under sub-section (5) is an order made on a trial for the restitution of

property. These are the words used in the sub-section itself. This therefore means that

before an order under s.358 is made appealable, there has to be a trial for restitution

of property and the order made in that trial is the one which is appealable to the High

Court I by anyone aggrieved by it. Quite clearly, this would mean the one who had

been party to the

1989 TLR p21

KYANDO J

trial i.e. the trial for restitution of property, and not anyone else. For such a trial to

take A place I think there would have to be an applicant (for the order of restitution)

and a respondent, or contending parties bearing titles akin to these. At the conclusion

of this trial, an order or writ such as that referred to in sub-s.(2) then issues and it is

from it that a party may appeal under sub-s.(5). B

Lastly, it is clear that s.358 as a whole only applies to situations where an accused has

been convicted. It does not apply to situations where an accused has been acquitted.

This is obvious from these words of s.358(1): "If any person guilty of an offence

mentioned in chapters XXVI to XXXI, both inclusive ... is prosecuted to conviction by

C or on behalf of ..."

Applying the above, it is clear that section 358, and its sub-s.(5) have no application to

the instant case. This is because, first, no trial for restitution of the property, the

subject matter of this appeal, was held in the District Court and there is therefore no

order which D can properly be appealed from by the appellant. The one which he is

appealing from now is not the type of order envisaged by s.358. Secondly, and this is

of greater importance, there was no conviction in this case. The accused were in fact

discharged after the prosecution failed to establish prima facie case against them.

Section 358 E C.P.A. has no application therefore as that section applies to

"prosecutions to convictions" only.

Because s. 358 does not apply to this appeal the appellant cannot rely on s.358(5) to

present it and Mr. Mchora was quite clearly wrong to place reliance on the provisions

of F that sub-section as shown above.

Can the appellant rely on any other provisions of the C.P.A. Mr. Mchora emphasised

in his submissions on the words "who appears to be entitled thereto" used in section

357 and argued that the property in this case should have been ordered to be restored

to his G client because on the evidence he appears to be the one entitled thereto. By

his emphasis on those words I understood Mr. Mchora to be relying on s. 357 too. But

that section has no appeal provisions. As already indicated sub-s.(5) of s.358 only

applies to s.358. So how can a person appeal who is aggrieved by an order for

restoration of H property made under s.357? Is it by reliance on s.359(1) of the

C.P.A.? Sub-s.(1) of s.359 provides:

359(1) save as hereinafter provided, any person aggrieved by any findings,

sentence or order I made or passed by a subordinate court ... may appeal to the High

Court...

1989 TLR p22

KYANDO J

He can not rely, in my view, on these provisions either, as, like under s. 358(5) where

a A person who can appeal must be one who was a party to a trial for restitution of

property, here too one must have been a party to the trial in order to be aggrieved by

"any finding sentence or order made or passed by a subordinate court" and appeal. B

Under s.359 the parties envisaged are, as Mr. Kesaria rightly argued, the Public (or

prosecutor) or the accused. It can not logically be contended that a witness in a case

can acquire rights to appeal under this section. If a witness feels that an order for

restitution C under s.357 is wrong, the proper course for him is to request either the

prosecutor, if he was a prosecution witness, or the accused, if he was a defence

witness to appeal against it. In the instant case therefore the appellant had no right of

appeal under s.359 (1) C.P.A. either. There being no other provisions on the basis of

which he could properly have appealed, as submitted by Mr. Kesaria and Mr. Malaba,

the appeal he D brought to this court is unmaintainable. It is incompetent.

I will now consider the objection based on an alleged failure to give notice of

intention to appeal. Under s.361(a) C.P.A., no appeal under s.359 C.P.A. can be

entertained unless E the appellant has given notice of his intention to appeal within

ten days from the date of the finding, sentence or order he wishes to appeal against.

As indicated above, Mr. Kesaria and Mr. Malaba for the respondents contended that

no notice of intention to appeal was ever given in this case. They submitted therefore

that the appeal is F incompetent on this ground too and prayed that it be dismissed.

In reply Mr. Mchora contended that he gave notice of intention to appeal and within

the prescribed time. He said the notice is contained in his letter dated 28 November

l988 to the Principal Resident Magistrate, Kisutu Court. The letter reads: G

The Principal Resident Magistrate,

Kisutu Court,

P.O. Box 538,

DAR ES SALAAM

Your Honour, H

RE: CRIMINAL CASE NO. 179 of 1987,

REPUBLIC v. MURAD MOHED & 2 OTHERS

Reference is made to the caption above. I

1989 TLR p23

KYANDO J

We are acting under instructions from our client, MR. ABDUL ALI ISSA, who

was the A complainant and gave evidence as PW11 in this case. On 26th November,

l998, the Honourable Jibrea, SDM, made an order of restitution conferring ownership

of the goods to the 3rd accused SADRU SULEIMANI. B

Our client intends to apply for a revision of the said order to the High Court,

and we would therefore be most obliged if you would avail us with a certified copy of

the drawn order to enable us proceed with the application.

Thanking you, C

(Sgd)

MCHORA & COMPANY

ADVOCATES D

cc: Incharge Prosecution

Kisutu Court

O.C. Port Police

DAR ES SALAAM E

Mr. Kesaria argued that this letter is not a notice of intention to appeal at all. At best,

he said it might be a notice of intention to apply for revision. He maintained that the

appeal was lodged without the requisite notice of intention to appeal. Mr. Mchora

argued in F reply that since there is no such thing in law as a notice of intention to

apply for revision, it should be assumed that the use of the words "intends to apply for

revision of the said order" in the letter was a slip of the pen but what was intended

was a notice of intention to appeal. He submitted therefore that the letter should be

accepted as a notice of G intention to appeal and that therefore respondents'

counsels' objections to the appeal based on lack of notice to appeal should be

overruled.

I find the arguments by Mr. Mchora on his letter reproduced above not sensible at all.

H The letter is, quite simply, not a notice of intention to appeal at all. Even if I was

minded to accept his argument that the letter was intended to be a notice to appeal

and not to apply for revision and that there was a slip of the pen in the use of the

words "intends to apply for revision" what transpired soon after this letter does not

support Mr. Mchora's I contentions. Mr. Mchora actually not only applied but he

pressed for a revision of the order

1989 TLR p24

KYANDO J

of the District Court by the High Court and it was only after the J.K. advised him to

ask A the DPP to appeal that he adopted the course of appealing. It is clear to me

that the letter reproduced above was part of the efforts to have the order revised by

the High Court. It had no relationship to any intended appeal at all.

In desperation, as he was about to conclude his arguments on this point, Mr. Mchora

B stumbled on the point that the appeal has already been admitted. By his minute

dated 13.12.88, my learned brother Mapigano, J., admitted the appeal to hearing. Mr.

Mchora contended that under the second proviso to section 36l C.P.A. the High Court

may, for C good cause, admit an appeal "notwithstanding that the period of

limitation prescribed in this section has elapsed". He argued therefore that since the

appeal was admitted to hearing it must be assumed to have been admitted under these

provisions of the law and that it is therefore competent and maintainable.

Mr. Kesaria, in reply, submitted that the proviso requires "good cause" to be shown D

before extending time, and that in this case no cause at all had been shown by the

appellant when Mapigano, J. minuted to admit the appeal. He argued therefore that

Mr. Mchora cannot rely on this minute and the second proviso to s.361 C.P.A. I agree

with E Mr. Kesaria. In addition, the proviso applies to periods of limitations. It does

not apply to admitting of an appeal where no notice at all has been given. In other

words it does not say that the High Court may admit an appeal notwithstanding that

no notice of intention to appeal may have been given. It refers to periods of limitation

and this means F that a party, if he shows good cause, may have his appeal admitted

notwithstanding that he may have lodged his notice of intention to appeal after the

prescribed period of limitation has elapsed. The proviso does not save the situation for

the appellant in this case therefore. No notice at all was given and the appeal on this

ground too is incompetent. G

Finally, on failure to attach the judgment or order appealed from: Mr. Mchora

submitted that he attached the copies of the order when lodging the appeal and he

expected that it would be for the court to serve the order, attached to the Petition of

appeal, on Mr. H Kesaria. Mr. Kesaria complained that his copy of the petition of

appeal was not accompanied by a copy of the judgment or order appealed against and

he contended that this infringed s.362 C.P.A. I note in the court case - file that there

are several copies of the drawn orders of the District Court against which the appeal

was brought. I give I therefore the benefit of doubts to Mr. Mchora and hold that he

supplied sufficient copies of the order to the Court but

1989 TLR p25

the Court may have overlooked to serve same on the respondents' Counsel when A

serving copies of petitions of appeal on them. The objection based on failure to

comply with s.362 C.P.A. is therefor overruled.

On the grounds that the appellant, having only been a witness and not a party to the

case, has no right of appeal, and that no notice of intention to appeal was given by the

B appellant in this case as required by law, this appeal is incompetent. The two

objections by counsel for the respondent are upheld and the appeal is hereby

dismissed for incompetence. C

Appeal dismissed.

1989 TLR p25

D