Court name
High Court of Tanzania

Abdul Ali Issa vs Republic () [1989] TZHC 6 (04 March 1989);

Law report citations
1989 TLR 16 (TZHC)
Media neutral citation
[1989] TZHC 6

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.

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.

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 Hpersonal 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 Iby transfer or delivery by

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

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...

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

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

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

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.

D
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