DIRECTOR OF PUBLIC PROSECUTIONS v A.M. SWAI 1989 TLR 37 (HC)

 

DIRECTOR OF PUBLIC PROSECUTIONS v A.M. SWAI 1989 TLR 37 (HC)

Court High Court of Tanzania- Dar Es Salaam

Judge Kyando J

29 March, l989

Flynote

Criminal Practice and Procedure - Appeals - Leave to appeal out of time - No notice

of B intention to appeal given to trial magistrate - Whether a letter applying for

copies of proceedings and judgment be treated as notice of intention of appeal.

-Headnote

The Director of Public Prosecutions applied supported with an affidavit, for leave to

C appeal out of time against a decision of the District Court of Ilala. Besides the

intended appeal having been lodged out of time, no notice of intention to appeal was

given to the District Court. The DPP contended that the prosecutor in the District

Court gave an informal notice to the trial magistrate. The magistrate, however, did

not record it. The D DPP further contended that the informal notice was followedup

with a letter asking for copies of proceedings and judgment for appeal purposes.

Held:(i) There is no indication at all that any oral notice of intention to appeal was

given by the Republic; E

(ii) a letter applying for copies of proceedings and judgment for appeal

purposes is different from a notice of intention to appeal as envisaged by the law. The

letter applying for proceedings and judgment for appeal presupposes that a notice has

already been given; F

(iii) as no notice of intention to appeal was given the application for leave to

appeal out of time cannot be entertained.

Case Information

Application dismissed. G

Senguji, for applicant

[zJDz]Judgment

Kyando, J.: The Director of Public Prosecutions, represented by Mr. Komeye, learned

H State Attorney, applies for leave to appeal out of time against the decision of the

District Court of Ilala at Kisutu in Criminal Case No. 153 of 1987 of that Court. The

application is supported by the Affidavit of Simbakalia, State Attorney. The

respondent, A.M. Swai, is in these proceedings represented by Mr. Kisusi, learned

Advocate, who I opposes the application.

1989 TLR p38

KYANDO J

In the course of hearing the application it came to light that besides the intended

appeal A having been lodged out of time no notice of intention to appeal was given

to the District Court in the first place. Mr. Komeye on this point submitted as follows

before me:

... no formal notice of intention to appeal was given to the District Court.

What Mr. Chaburuma, B the prosecutor in the District Court, did was to give an

informal notice to the trial magistrate. The magistrate, however, did not record it. Mr.

Chaburuma followed up with a letter, within the time for giving notice, asking for

copies of proceedings and judgment for appeal purposes. C The letter is dated

l6/7/88. It was sent two weeks after judgment was delivered. This letter confirms that

the prosecutor gave an informal notice of intention to appeal. He did not, of course,

know that the magistrate had not recorded the oral notice of intention to appeal. So

D notice was given, though the magistrate did not record it.

In reply, Mr. Kisusi submitted that in the first place the record of the case does not

show that any notice was given. Secondly, Mr. Kisusi contended, the one who is said

to have E given an oral notice, Mr. Chaburuma, was not present in the court below

on the date of judgment. A public prosecutor was present and was the one who

received the judgment in the District Court. Mr.Kisusi further submitted: F

Even then, Mr. Chaburuma should have sworn an affidavit to show that he

had given notice. Your Lordship cannot rely on my learned friend's statement from

the Bar. G

As the application was for extension of time to appeal and it is discovered that

even the notice of intention to appeal was not given, I pray that the application be

dismissed.

Mr. Komeye in reply reiterated his prayer that the letter of Mr. Chaburuma of l6/7/87

be H taken as notice of intention to appeal.

I have given careful consideration to the case as a whole and the arguments of learned

counsel. It is clear that there is no indication at all that any oral notice of intention to

appeal was given by the Republic. The one who received the judgment of the court I

below is indicated to be Insp. Mubwego, a public prosecutor. It is unlikely therefore

that Chaburuma could have given the notice as contended

1989 TLR p39

by Mr. Komeye as he was not in court on the date of judgment in the District Court.

A

Concerning the prayer that I treat the letter of 16/7/88 as a notice of intention to

appeal, it is my view that a letter applying for copies of proceedings and judgment for

appeal purposes is different from a notice of intention to appeal as envisaged by the

law. The B letter applying for proceedings and judgment for appeal purposes

presupposes that a notice has already been given.

As no notice of intention to appeal was given in this case in the first place, the

application for leave to appeal out of time cannot be entertained. It is dismissed in

accordance with the prayer by Mr. Kisusi. C

Application dismissed.

1989 TLR p39

D