IN THE COURT OF APPEAL OF TANZANIA

AT BUKOBA

(CORAM: RUTAKANGWA, J.A., KIMARO,J.A.,And LUANDA, J.A.)

CRIMINAL APPEAL NO. 355 OF 2014

THE REPUBLIC …….………………………....….………..……….…………APPELLANT

MWESIGE GEOFREY
TITO BUSHAHU ...……………………....................................RESPONDENTS

(Appeal from the Ruling of the High Court of Tanzania at Bukoba)

(Mjemmas, J.)

dated the 31stday of October, 2014

JUDGEMENT OF THE COURT

13th& 19th February, 2015

RUTAKANGWA, J.A.:

The respondents were dissatisfied with the decision of the District

Court of Ngara District. Through Mr. Mathias Rweyemamu, learned

advocate, they preferred an appeal to the High Court at Bukoba vide

Criminal Appeal No. 29 of 2014 (the appeal). Before the appeal was called

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on for hearing, the respondent Republic lodged a notice of preliminary

objection challenging its competence on the ground of “want of proper

notice of intention to appeal,” on the part of the respondent Tito Bushahu.

The notice of preliminary objection was premised on section 361(1)

(a) of the Criminal Procedure Act, Cap. 20 (the CPA). The said provision

provides as follows;-

“Subject to subsection (2) no appeal from any finding,

sentence or order referred to in section 359 shall be

entertained unless the appellant-

(a) has given notice of his intention to

appeal within ten days from the date of

the finding, sentence or order or, in the

case of a sentence of corporal

punishment only, within three days of

the date of such sentence;”

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In his argument before the learned High Court judge in support of his point

of objection, Mr. Athumani Matuma, learned State Attorney, on behalf of

the Republic, placed reliance on section 379 (1) (a) of the CPA. The latter

provision reads thus:-

“Subject to subsection (3), no appeal under section

378 shall be entertained unless the Director of Public

Prosecutons-

(a) has given notice of his intention to

appeal to the subordinate court within

thirty days of the acquittal, finding,

sentence or order against which he

wishes to appeal.”

In his written submissions, Mr. Matuma conceded that s. 361(1) (a)

does not specify where the notice of intention to appeal is to be filed. All

the same, placing much faith in s. 379(1)(a), he argued that the

construction of s. 361(1)(a) should be read to mean that the said notice

ought to be filed in the subordinate court “in the spirit of the counterpart

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provision”, i.e. s. 379 (1)(a). It was his argument that Parliament could

not have intended to limit the D.P.P as to the place of filing the notice of

intention to appeal while giving the accused person virtually a carte

blanche in choosing where to lodge such notice. He further argued that to

hold so “would lead to absurdity” because an accused appellant “may wish

to file his notice to the Registrar of the High Court or to the Regional

Commissioner’s Office or to the District Commissioner’s Office or to the

District or Regional Security Officer or to the District Land and Housing

Tribunal” etc. Mr. Matuma, pressed the learned High Court judge to adopt

a purposive approach as this Court did in the cases of JOSEPH SINDE

WARIOBA V. STEPHEN WASSIRA & ANOTHER [1997] T.L.R 272 and

GOODLUCK KYANDO v. R. [2006] T.L.R. 363.

Mr. Rweyemamu resisted the preliminary objection arguing that s.

361 (1)(a) is very clear and needed no interpolations. To him, the

manifest intention of Parliament was to impose a duty on an appellant

under this section to give his intention to appeal within the prescribed

periods without in anyway restricting his or her choice of venue where to

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do so. He stressed that s.361(1)(a) and s. 379(1)(a) cover different

persons and cannot be harmonized.

The learned High Court judge found the arguments of Mr. Matuma

interesting and “highly persuasive particularly the one on the purpose of

enacting provisions demanding notice of intention to appeal.” He further

reasoned thus:-

“For instance, there is no doubt that the purpose of

issuing a notice is to inform the trial court that the

prisoner (convicted person) intends to appeal against

its decision, finding or order so copies of the

proceedings and the decision are prepared for the

collection of the party who wishes to appeal; refer to

MTANI ALFRED v. REPUBLIC, Criminal Appeal No.

262 of 2009, C.A., Mwanza (unreported.).”

The above observations notwithstanding, he concluded thus:

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“I am, however, convinced that the legislature

intended that notice of intention to appeal under

section 361(1)(a) be filed either at the subordinate

court or for whatever reasons at the High Court.

After all if a notice of intention to appeal is filed at the

High Court within the prescribed time what injustice is

caused to the D.P.P.?”

He accordingly ruled that the 2nd respondent’s notice of intention to

appeal had been “properly filed at the High Court.” The preliminary

objection was overruled, hence this appeal against the ruling.

The appellant D.P.P. through Mr. Matuma had two grounds of

complaint against the High Court decision. They are as follows:-

“1. THAT, the Hon. Judge erred in law and facts in

holding that a notice of an intention to appeal

under section 361 (1)(a) of the Criminal

Procedure Act, [Cap. 20 RE. 2002] at the option

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of the party can be filed either at the subordinate

court or for whatever reasons at the high (sic)

Court.

2. THAT, the Hon. Judge erred in law and facts by

making a decision by sympathy basis (sic)

instead of adhering to the law and correct

interpretation of the law.”

When the appeal was called on for hearing, Mr. Rweyemamu rose to

argue a point of preliminary objection, notice of which had been lodged

earlier on. The gist of the point of objection was that the appeal being

against an interlocutory ruling, “is incompetent for being prematurely

filed.”

In his brief submission, Mr. Rweyemamu contended that the

impugned High Court ruling is non-appealable in terms of s. 5 (2) (d) of

the Appellate Jurisdiction Act, Cap. 141 (the Act). In response, Mr.

Matuma countered that the appeal is maintainable under s. 6 (2) of the

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Act, as section 5 deals only with civil appeals to this Court. Having heard

both counsel on the point of preliminary objection we reserved our ruling

thereon and heard their submissions on the merits or otherwise of the

substantive appeal. This judgment on appeal incorporates our ruling on

the point of preliminary objection which we shall dispose of first.

We are of the decided view that the point of objection raised

touching on the competence of the appeal, should not detain us at all. The

legal position covering this controversy was made clear by this Court on an

identical objection, in the case of the D.P.P. (Zanzibar) v. FARID HADI

AHMED & 9 OTHERS, Criminal Appeal No. 96 of 2013 (unreported). So

we need here do no more than reiterate what we stated therein. The

Court succinctly held as follows:-

“It must be obvious to all now that in the entire

section 6 which clothes this Court with jurisdiction to

hear and determine criminal appeals from the High

Court and subordinate courts with extended powers,

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there is no provision similar to, leave alone one

identical with s. 5 (2) (d) reproduced above. For this

very obvious reason, we have found ourselves

constrained to accept without any demur, Ms. Fatma’s

irresistible contention that the right of the D.P.P. to

appeal against “any acquittal, sentence or order

made or passed by the High Court or by a

subordinate court exercising extended powers”,

was left unfettered by the total prohibition against

appeals or revision applications to this Court in

relation to any preliminary or interlocutory decision or

order. This conclusion finds strong support from the

observation of this Court in the case of Yohana

Nyakibiri (supra), in respect of the reasons behind

the passing of Act No. 25 of 2002.

In Yohana Nyakibari’s decision dated 15/8/2007

the Court made this apt observation:

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“At this juncture it may be observed briefly

that the intention of the legislature in

enacting the law under the Act, was to

ensure speedy expedition of trials

particularly with regard to civil suits. Hence

the amendments effected under the Act of

section 5(2) (d) of the Appellate Jurisdiction

Act, 1979, section 74 of the Civil Procedure

Code 1966 and section 43 of the

Magistrates’ Courts Act, 1984.”

To this list, we may as well justifiably add sections 78

and 79 of the same Civil Procedure Code. This list of

amended sections has led us to the conclusion that s.

6(2) of the Act was by design left untouched by

Parliament.

In the face of these unambiguous provisions of s. 6

of the Act, we respectfully hold that the first point of

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preliminary objection premised on a statutory

provision not related to appeals in criminal cases, as is

the appeal under scrutiny, is totally misconceived. It

is accordingly overruled. All other things being equal,

the appeal ought to be held competent.”

We subscribe wholly to the above holding. On that basis we hold

that the raised point of preliminary objection is totally misconceived and it

is hereby overruled. We only wish to observe in passing that since there

was no intention to bar appeals of this nature to this Court, then the words

“criminal charge” appearing in s. 5 (2) (d) of Act should be deleted.

Regarding the appeal, we should state at once that both counsel’s

submissions before us where a repetition of what they had submitted in

the High Court, particularly regarding the first ground of appeal. We shall

not have to repeat them.

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Borrowing a leaf from the U.S. Supreme Court in CONSUMER

PRODUCTS SAFETY COMMISSION et al. v. GTE SYLVANIA, Inc. et

al. 227 U.S. 102 (1980), in disposing of the first ground of appeal, we have

chosen to begin our discussion “with the familiar canon of statutory

construction that the starting point for interpreting a statute is the

language of the statute itself. Absenting a clearly expressed legislative

intention to the contrary, that language must ordinarily be regarded as

conclusive.” The same Court went further and held that if a statute’s

language is plain and clear:-

“the duty of interpretation does not arise and the

rules which are to aid doubtful meanings need no

discussion.”

A few decades earlier, the said Court had succinctly ruled that:

“It is elementary that the meaning of a statute

must in the first instance, be sought in the

language in which the act is framed, and if it is

plain … the sole function of the courts is to enforce

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it according to its terms…” in CAMINETTI v.

UNITED STATES,242 U.S. 470 (1917).

We fully subscribe to the above holdings. We shall happily apply

them in our resolution of the legal issues raised in this appeal. While doing

so we shall remain alive to the dictum of A.V. Dicey that:

“Statutes themselves though manifestly the work of

Parliament, often receive more than half their

meaning from judicial decisions”, Lectures on the

Relation Between Law and Public Opinion in

England, 3rd ed. 1924, P. 486.

In a fitting case, therefore, we shall not shirk from doing so.

Indeed it is axiomatic that when the words of a statute are

unambiguous, “judicial inquiry is complete.” There is no need for

interpolations, lest we stray into the exclusive preserve of the legislature

under the cloak of overzealous interpretation. This is all because:-

“courts must presume that a legislature says in a

statute what it means and means in a statute what

GERMAIN, 112 S. Ct. 1146, 1149 (1992).

But this only holds true in the clearest of cases. Where there is an obvious

lacuna or omission and/or ambiguity the courts have a duty to fill in the

gaps or clear the ambiguity. In doing so they are not embarking on “a

naked usurpation of the legislative function under the their disguise of

interpretation” as feared by Lord Simonds in MAGOR AND St. MELLONS

RURAL DISTRICT COUNCIL v. NEWPORT CORP. [1952] A.C. 189,

191. It is because often, Parliament enacts provisions with general or

vague wording with a view to courts filling the gaps. This may occur

deliberately or inadvertently.

As can be clearly discerned from the arguments of both counsel

before us and in the High Court the pith of the controversy here lies not in

the ambiguity of the provisions of s. 361 (1)(a) of the CPA as such, but on

the apparent omission on where or to whom the envisioned notice of

intention to appeal ought to be given. While it is the contention of the

appellant that the said notice must be filed in the trial subordinate court,

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Mr. Rweyemamu is adamant that it can be lodged even in the High Court,

a position shared by the learned High Court judge. Was this omissionin s.

361 (1) (a) deliberate or accidental? Again both counsel are in

disagreement. It behoves us then to resolve the controversy.

S. 361(1) (a) of the CPA provides as follows:-

“Subject to subsection (2), no appeal from any

finding, sentence or order referred to in section 359

shall be entertained unless the appellant-

(a) has given notice of his intention to

appeal within ten days from the date of

the finding, sentence or order or, in the

case of a sentence of corporal

punishment only, within three days of

the date of such sentence;”

The provisions of s. 361 (1) (a) differ slightly with the provisions of s.

379 (1) (a) of the CPA, which says:-

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“Subject to subsection (2), no appeal under section

378 shall be entertained unless the Director of

Public Prosecutions-

(a) has given notice of his intention to

appeal to the subordinate court within

thirty days of the acquittal, finding,

sentence or order against which he

wishes to appeal;”

As conceded by Mr. Rweyemamu the words “to the subordinate

court” found in s. 379(1) (a) are missing in s. 361(1) (a). Admittedly, both

sections fall under Part X of the CPA which deals with appeals, from District

courts and Courts of Resident Magistrate to the High Court. It is evident

from these two provisions that the persons subjected to the conditions

prescribed therein, derive their right of appeal from sections 359 (1) and

378 (1) respectively.

Section 359 (1), for instance, provides as follows:

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“Save as hereinafter provided, any person

aggrieved by any finding, sentence or order made

or passed by a subordinate court other than a

subordinate court exercising its extended powers by

virtue of an order made under section 173 of this

Act, may appeal to the High Court and the

subordinate court shall at the time when such

finding, sentence or order is made or passed,

inform that person of the period of time within

which, if he wishes to appeal, he is required to give

notice of his intention to appeal and to lodge his

petition of appeal.”

It is plain from the above provision, that the duty to inform an

aggrieved person “the period of time within which… to give notice of his

intention to appeal and to lodge his petition of appeal“lies on the trial

subordinate court and not on the High Court. Furthermore, it is provided

in the proviso to section 361(1) that” in computing the period of forty five

days the time required for obtaining a copy of the proceedings, judgment

or order appealed against shall be excluded.” It has occurred to us that

always be obtainable from the trial subordinate court and not the High

Court, is not disputed here. These two facts compel us, therefore, to

accept the forceful argument of Mr. Matuma. We have found it to be

based on logic and not expediency. That is why in its enduring wisdom

Parliament, in s. 379 (1) (a) directed that the notices of intention to appeal

by the D.P.P be given to the trial subordinate court. In the absence of a

clearly expressed intention by Parliament to the contrary, reason dictates

and logic affirms that notices of intention to appeal under section 361 (1)

(a) ought to be given to the trial subordinate court as convincingly argued

by Mr. Matuma. If the current situation is left to continue, the scenario

alluded to by Mr. Matuma, would turn into a reality. A person, in good

faith and innocently, may find himself giving his notice of intention to

appeal at best to the primary court or at worst to the “Kitongoji”/Village

office without in any way offending the seemingly mandatory provisions of

361 (1) (a) of the CPA, as the respondent in this case did file a notice of

appeal in the High Court. This state of affairs, though not strictly

prohibited by the law is unsatisfactory.

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To bring certainty in the law, we find a purposive approach should be

resorted to remove the omission inadvertently, and not deliberately, left by

Parliament in this section. We find this to be a fit case for the Court to

read the missing words into s. 361 (1) (a) of the CPA in order to remove

this patent confusing anomaly. This Court has done so before

[J.S.WARIOBA v. S.M. WASSIRAand GOODLUCK KYANDO (supra)]

and in appropriate cases will do so in future. That Parliament is imbued

with enduring wisdom does not mean that it cannot forget. So to attain

this noble goal we direct that the words “to the trial subordinate court” be

inserted in s.361(1) (a) of the CPA. The section should now read as

follows:-

“361(1) Subject to subsection (2), no appeal from

any finding, sentence or order referred to in section

359 shall be entertained unless the appellant:-

(a) has given notice of his intention to

appeal to the trial subordinate court

within ten days from the date of the

finding, sentence or order or, in the

case of a sentence of corporal

the date of such sentence;”

After so ordering, we should hasten to point out that the respondent

Tito Bushahu, like many others who have been doing so, did not violate at

all, the law in filing his notice of intention to appeal in the High Court. His

appeal is accordingly competent before the High Court and must proceed

to hearing, as well as the appeals of those who found themselves in a

similar predicament. Being aware of the realities on the ground, this

amendment to s. 361(1) (a) of the CPA should become operative six (6)

months from the date of this judgment. We accordingly reject the first

ground of appeal subject to what we have stated in this judgment, as the

judge was right in dismissing the preliminary objection given the current

stance of the law.

Lastly, and briefly, we have found the second ground of appeal

wanting in merit. We have dispassionately studied the High Court ruling.

We were unable to trace therein a single line from which it could be fairly

inferred that the learned High Court judge jettisoned objectivity to the

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winds and resorted to sentimentalities. His approach to the issue before

him was judicial. Even if we had overruled him in toto, the reproach

directed at him in this ground of complaint, in our respectful opinion, was

not justified at all. We dismiss the second ground of appeal in its totality.

DATED at BUKOBA this 19thday of February, 2015.

E.M.K. RUTAKANGWA
JUSTICE OF APPEAL

N.P. KIMARO
JUSTICE OF APPEAL

B.M. LUANDA
JUSTICE OF APPEAL

I certify that this is a true copy of the original.

E.Y. MKWIZU
DEPUTY REGISTRAR
COURT OF APPEAL

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