octavian morris vs republic 2008 tzhc 312 5 august 2008

IN 1H E H IG H C O U R T O F T A N Z A N IA AT A K U S llA M IS C . C R I M I N A L A P P L I C A T I O N N O . 92 O F 2007 O C T A V IA N M O R R I S ........................ A P P L IC A N T V ersus — T H E R E P U B L I C ............................. RESPO N D EN T 23r,t .1uly , & 5‘'» August 200JL R U L I N G B E F O R E : 13. M . M M 1 L L A . I.: T h e a p p lic a n t. O c t a v ia n s/o M o rris has inst il uted a I wo (old ap p lica tio n in w h ic h he is seeking lor enlargem ent o( lim e in w h ic h to lile a notice ol in te n tio n to appeal and also.to he allow ed to lile his appeal a lt e r lapse ol the s t a t u t o r y period. 11 is a p p lic a tio n is supported hv an a f f id a v it sworn hy him . It has qu ip , in m y v ie w , two inter related grounds that he delayed to file the notice ol in ten tio n to appeal, and hence the appeal because he was not re a d ily supplied w ith the ju d g m e n t ol the H ig h Court in tim e to enable him to appeal to the Court ol Appeal ol Tanzania, lie has staled that failure to s u p p ly him those d o cu m e n ts in tim e derailed hint to m o ve the prison officials to assist him to prepare and file tin; said notice and hence the appeal. This dem ands a th orou gh e x p la n a tio n for a n y one of us to understand w hat he means. In 2000. the a p p lica n t was charged in the District Court ol B a b a l i of rape c/s 130 and 131 o f the Penal Code. O n co n v ictio n on IS . I 1.2001. he was sentenced to a |.(>nii o f life im p riso n m e n t. H e appealed to the H ig h C o urt. T h e H ig h (lo u rl u p h e ld I I k ; c o n v ic l ion. but reduced I he sen I ence to that of t h i r t y (30) y e a r s ' ini p r is o n m e n l. lie fell aggrieved for no! h a v in g allow ed the ap p e al as a w hole, t herefore that he thought o f a p p e a lin g lo the Court of A p p e a l of T a n z a n ia . As usual, he had to inform the P ris o n A u t h o r i t y of his in te n tio n to appeal and asked them to assist.. A c c o r d in g to him , the P r is o n A u t h o r i t y required him lo produce e v id e n c e that, there was a decision o f t he H ig h Court, w h ic h lie intended t.o app eal ag a in st, hut t h a t then he h ad no jud g m ent of the H ig h C o u rt. A c c o r d in g to him , he got it on 19.3.2002, and that on 20.3.2002 th e y prepared and filed the notice o f in te n tio n to ap p eal and s u b se q u e n tly the appeal itself. H e was r e g r e tta b ly in fo rm e d that he was late. It is on this basis, he has s u b m itte d , that this a p p lic a t io n should be allo w ed because it was not his fault to h a v e d e la y e d lo file the notice and hence the m e m o r a n d u m of appeal. H e b lam es it all on the D is tr ic t R e g is t r a r for h a v in g not sup p lied him the necessary d o c u m e n ts in time. T h is a p p lic a t io n is being resisted b y M s. iNchalla, learned S t a t e A t t o r n e y w ho has s u b m it t e d that it should be dismissed because what the a p p lica n t has said does not c o n s titu te su fficient cause for the d ela y. Lt is trite law that in order for a p a r t y to succeed in an a p p lic a tio n for enlargem ent of lim e , he must sho w sufficient, cause for tin', d e la y. T h is has been reslated in a n u m b e r o! cases, includ ing l hal o f T a n z a n ia T a ilo rs v. K e s liv a ji L a l j i (1 9 7 0 ) II. C C . I) . 236. I nole lh a l w h a l I lie ap p lica n t is saying In in a s into \ iew I wo key players; first t he P riso n A u t h o r i t y w h ic h did 1 1 0 L assisl him on I In* basis lh a l they had no co u rt judgment, to sp ark their action to assist in issuing the notice, and also the D istrict R e g is t r a r w ho is being b lam ed lor h a v in g not supplied him w ith the said judgm ent/order in lim e. W i t h all due respect to the a p p e lla n t, w h a l he has said is not c o n v in cin g . In the lirst place, liling a notice o( intension to appeal was nol required to have been ac co m p an ie d by a n y d o c u m e n t, and I am <piite certain lh a l the Prison A u t h o r i t y is (ju ile a w a r e o f this. T h e y re g u la rly assisl inm ates on such m atters. It is u n b e lie v a b le , and I am nol co n vin ce d that his m a tte r was treated d iffe r e n tly . S e c o n d ly , if I were lo say his ease was treated d iffe r e n tly , w h ic h I d o u b t, the ap p lica n t was required to h a ve filed a ffid a v it s o f the officers In* casts blam e on in ord er lo strengthen his sole ground in this mat.ter. I nfort u n a te lv he did nol. K ailure to do so has placed this court in a d ile m m a on w h e th e r or nol w h a t he is asserting now has a n y tru th . There is n o th in g to assisl it to a n s w e r this (pieslion in a p p lic a n t's favour. On the basis o f what I h a v e said ab o ve. I am not satisfied I hat the applicant has show n sufficient cause to w a rra n t it extend the lim e sought. T h e a p p lic a tio n is thus dismissed. (S g fl) Mmilla, B. M. Judge 31.7.2008 05/08/2008 C oram : 15. M. K . Mi niNa, J . F o r the A p p lic a n t: Present. F o r the R e sp o n d e n t: Mr. K i t a m b w a . S l a t e Al torney. B/e: S. M. C ourt: K illin g d elive red this 5th d a v of A u g u s t, 2008 in the presence of I lie a p p lic a n t in person a m i learned S t a t e A t t o r n e y M r. K i t a m b w a for the K epu blic. AT A RU SH A. <^d) iVlniilla, R .M . Judge 05.08.2008 Right, of ap p eal ex p lain e d . (Sgd) \1 m illa . 15.M . Ju d g e 05.08.2008 1 ce rt ify t h a t this is a true co py of t he original. B M M / jn .