20060310 TZCA Mwanza

, , , IN THE COURT OF APPEAL OF TANZANIA ATMWANZA {CORAM: MUNUO, l.A., MSOFFE, J.A. AND KAJI, J.A.) CRIMINAL APPEAL NO. 75 OF 2003 BETWEEN MSAFIRI KADURUMA ... ........................................ APPELLANT AND THE REPUBLIC ....... ■■ I ■■■ •••• ■ ••••••• ■ •• ■ I ■■■■■■■•■■■ ••••• ■ .RESPONDENT {Appeal from the Conviction of the High Court of Tanzaniat at Tabora) (Rutakangwa, J.) dated the 19th day of May, 2003 in Misc. Criminal Application No. 105 of 2002 ------------------- -------------------- KAJI, J. A.: In. the District Court of Kasulu District at Kasulu, in Criminal Case No. 117 of 1998, the appellant, Safari Kadui-uma togethe_r with Morton' Gangara, were jointly charged with and convicted of the ,,...~~ - ......,,,.._,.......___ ___ ,.,_ __ ~-~~"" ,,....._,.__ __ _.__,_~ -~ - r-.~ ,,,..., ....-..____~~----, . . ,.. 2 offence of robbery with violence contrary to Sections 285 and 286 of the Penal Code, Cap. 16. They were sentenced to 30 years imprisonment each. They were also ordered to undergo 12 strokes each. This was on 30.6.1998. The appellant was aggrieved with the conviction and sentence. He attempted to appeal to the High Court at Tabora but he was notified that his appeal could not be entertained because he had not filed his notice of intention to appeal within the prescribed period. On 17.10.2002, the appellant applied for extension of time to appeal. He preferred one ground for delay averring that, on 30.6.1998 he notified the relevant authorities at Kasulu Prison his intention to appeal but they did not transmit it to the High Court in ~ - . . ? - ~ - , . - ~ i e , , -•.,...'""::'..-., ·.: ,:;:_·~~---'""•::,,~,..,--,.,.r--2,.';"-;;cs,:::,,="-'!.'".----,:!--·-~·1 ~~·c...o>:-·_;,_-.,,-....,_°""-=-'-~•- ~-<0··-~--·---..-;....,;...-,. __ --..,.__ .,..., ...... ·· ~--'1P~ - - · - - , . ,--::-...,_ _ _ _ __ time, and that as a prisoner in custody, there was nothing more he could do. Later he was surprised to learn that it was not sent in time. • 'I 3 The court - Rutakangwa, J. dismissed the application on the grounds that the appellant had pleaded guilty and the sentence imposed is the minimum under the law, and further that he had not challenged the legality of the conviction and sentence in his affidavit. The appellant was aggrieved, hence this appeal in this Court. - The crucial issue at this stage is whether the appeal is properly before the Court. Mr. Mwampoma, learned Senior State Attorney for the respondent Republic, says it is not. In his view, after the appellant's application was dismissed by the High Court, the appellant had no right of appeal to this Court. He did not cite any provision of the law, but we think he had in mind Section 6 of the Appellate Jurisdiction Act, 1979. The learned .fr,. - Senior State Attorney further contended that, the appellant could come to this Court by way of an application before a Single Judge, if the wished, under Rules 45 and 55 (1) of the Court of Appeal Rules, 1979. 'I 4 The appellant who is a layman, had nothing useful to say on this. On our part, we agree with the learned Senior State Attorney that Section 6 of the Appellate Jurisdiction Act does not provide that on order of this kind is appealable to this Court. However in practice - . it has been observed that an appeal could lie with or without leave against an order dismissing an application for extension of time to appeal. See Melkizedek Gabriel and Shaban Benjamin versus Republic ( 1993) TLR 269. At this juncture, we pose and ask: Did the learned judge consider the application for extension of time on merit? With due respect, we do not think so. As demonstrated supra the learned ···tt - - - · ···- - - - - - , --· ·"-=-==~,~--==-~~-=-=··~---~ -~- ·... ,-. ··- .. . ····- .. ··--- .. · judge dismissed the application on the grounds that the appellant had pleaded guilty and the sentence is the minimum under the law and that he had not challenged the legality of the conviction and sentence in his affidavit. '' 5 In our view, we think, the learned judge was duty bound to consider the grounds for the delay as deponed in the affidavit, and also to consider the application as a whole. In his affidavit the appellant had deponed that he gave his notice of intention to appeal to Kasulu Prison Authorities immediately when he was whisked into prison on _30.6.1998. This was not contradicted by the respondent Republic. There was no counter affidavit to contradict it. In that respect the learned judge should have accepted the position to have been so, and exonerate the appellant from the blame of being late. In that respect, we think, for the interest of justice, it would be fair to revisit the order of the High Court. We could easily order the High Court to hear the application for extension of time on merit. But we think, in the instant case, this will - delay the matter further, taking into consideration that it took about seven months in the High Court before it was heard. Since the appellant's ground for delay was not contradicted, and taking into consideration the circumstances surrounding this • I 6 case, we set aside the order of the High Court dated 19.5.2003, and allow the application for extension of time to appeal against the judgment of the District Court. Pursuant to Sections 359(1) and 361(a) of the Criminal Procedure Act, 1985, we order the appellant to give his notice of intention to appeal within ten days from the date of delivery of this judgment. He should give his notice at Butimba Prison where he is currently, and the Butimba Prison Authority should transmit it to the High Court at Tabora without delay. Upon the notice being lodged, the High Court at Tabora should process his appeal at the earliest convenient moment, taking into consideration the period the appellant has been in prison, that is, eight years. ----•-'••- -----·-·"--·--------••·•·-·----·-----··--=--.•·-.,---,-----~--•---•---- ----""'·--··----,-.--------"' ----- We are aware of the provision of Section 360(1) of the Criminal Procedure Act, 1985, which provides that no appeal shall be allowed in the case of any accused person who has pleaded guilty and has been convicted on such plea by a subordinate Court, except as to the extent of the legality of the sentence. ' ' 7 However in the instant case the High Court will have to determine whether the plea was unequivocal and whether the facts stated disclosed the offence charged. DATED at MWANZA this 10th day of March, 2006. E.N.MUNUO JUSTICE OF APPEAL J. H. MSOFFE JUSTICE OF APPEAL S. N. KAJI JUSTICE OF APPEAL s. DE