Court name
High Court of Tanzania

Director of Public Prosecutions vs A.M. Swai () [1989] TZHC 10 (29 March 1989);

Law report citations
1989 TLR 37 (TZHC)
Media neutral citation
[1989] TZHC 10
Coram
Kyando, J.

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.

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

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.

D
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