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.
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
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
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.
(5) ..... C
(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
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 Dappellants 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
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