20091030 TZHC Dodoma

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: MSQFFE, J;A. RUTAKANGWA, J. A. And BWANA, J.A.) CRIMINAL APPEAL NO. 482 OF 2007 WILFRED MAGANGA ........................................................... APPELLANT VERSUS THE REPUBLIC ............................................................... RESPONDENT (Appeal from the Ruling of the High Court of Tanzania at Dodoma) (Masanche, J.) dated the 9 th day of May, 2007 in Criminal Application No. 75 of 2005 JUDGMENT OF THE COURT 28 & 30 October, 2009 BWANA, J.A.: Initially Wilfred Maganga and Nery Nyazaga were charged with the offence of Conspiracy to commit an offence contrary to section 384 of the Penal Code (the PC). They were charged before the Mpwapwa District Court. In addition to the conspiracy charge, Wilfred Maganga was also charged, in a second count, with Rape contrary to section 130(1)(2)(a) of the Penal Code, as amended by section 5 (1)(2)(e) of the Sexual Offences Special Provisions Act No. 4 of 1998 (The SOSPA). Wilfred Maganga pleaded guilty to both counts of conspiracy to commit an offence and rape. Nery d/o Nyagaza pleaded not guilty to conspiracy to commit an offence. The charge against her was subsequently withdrawn under section 98(a) of the Criminal Procedure Act (the CPA) on 24 July 2001. Before that, however, on 9 July 2001 Maganga, the appellant, was convicted on his plea of guilty and sentenced accordingly. We should not hesitate to remark at this early stage the following. In meting out the sentences, the trial magistrate sentenced the appellant to life imprisonment for the first count (that of conspiracy to commit an offence) and ten strokes of the cane for the second count (that of rape). We may only presume that the first sentence was meant for the second count and vice versa. Since after meting out the sentences the trial magistrate became functus officio, it is our esteemed view that the High Court (the first appellate court) ought to have corrected that glaring irregularity either through its revisional jurisdiction or by allowing the appellant to lodge and argue his appeal. The said appellant was denied that right. That forms the basis of this appeal before us. 2 That is not all. As stated above, the charge of conspiracy to commit an offence facing the second accused was withdrawn on 24 July 2001. It is settled law that a charge of conspiracy to commit an offence cannot be prosecuted against one person. Having the charge so withdrawn, we are of the considered view that the High Court judge who subsequently heard and rejected the appellant's application ought to have noted this anomaly and proceeded to rectify it. This he did not do. The sentences imposed on the appellant, assuming that they were meant to be applied interchangeably to the two counts are also nevertheless unlawful. If the trial magistrate meant to impose life imprisonment for rape, there is no basis for such a severe sentence, particularly where the convict had pleaded guilty to the offence. The provisions of the law governing such offences, that is, sections 130(1) and 131(1)) of the PC as amended by sections 5(2)(e) and 6 of the SOSPA are but very elaborate. ,., .) First, is that a girl under the age of eighteen years is incapable of giving consent to an act of sexual intercourse. Therefore a man who has sexual intercourse with such a girl commits the offence of rape. Second, the mandatory minimum sentence prescribed by law is thirty years imprisonment with corporal punishment and fine. He shall then be ordered to pay compensation of an amount to be determined by the court. Imposing a maximum sentence ( of life imprisonment) to a first offender who had pleaded guilty to the offence needed, in our view, re-examination by the first appellate court. It may be against the foregoing background that the appellant filed an application before the High Court, under section 361 A and B of the CPA. The application was supported by the appellant's affidavit wherein he averred other relevant reasons that contributed to the delay in lodging his appeal. He stated, for instance, that soon after his imprisonment he expressed his desire to appeal against both conviction and sentence. The said desire was made known to the officer incharge of Mpwapwa prison. The appellant as well applied 4 for a copy of judgment of the District Court. Subsequently, however, he was transferred from Mpwapwa to Isanga prison. From the latter prison he discovered that his appeal had not been lodged in the High Court. It is only then that he filed his application under section "361 A and B" of the CPA. There was no counter affidavit to controvert those averments. · In his decision, the High Court judge rejected the application on the basis that "the intended appeal stands no chance of success." That decision led to the instant appeal. Mr. Nchimbi, learned State Attorney for the respondent Republic, supported the appeal for the following reasons. First, that the High Court judge did not direct himself well as to the reasons of the delay. Second, the anomalies in the proceedings before the trial court (as shown above) should have led the High Court to give leave to the appellant to come before it so that the said anomalies are corrected. Third, the High Court predetermined the appeal which was not yet before it. All the above considered, it was Mr. Nchimbi's submission that this Court should allow the appeal, step into the 5 shoes of the High Court and extend time to the appellant to file his appeal before the High Court. Having considered all the issues before us, we do concur with Mr. Nchimbi. It is settled law that in an application for extension of time, what the applicant is normally required to do is to show the existence of sufficient reasons that led to the delay (see Shant v Hindoche and Others - 1973 EA 207). The record before us raises two major groups of such sufficient reasons. The first one covers the anomalies that we have elaborated above. The second one covers those reasons advanced by the appellant. Both considered, we are of the firm view that the High Court judge was not justified in denying the appellant extension of time to lodge his appeal. We have no doubts therefore that the applicant ought to have been allowed by the High Court and the appellant allowed to lodge his appeal. Refusing him to do so was, in our considered view, faulty. We therefore quash the ruling of the High Court judge, allow the appeal and extend the time for filing of the notice of appeal to 6 the High Court. The same should be lodged within ten days from the date of this judgment. We order accordingly. DATED at DODOMA this 30 th day of October, 2009. J. H. MSOFFE JUSTICE OF APPEAL E.M.K. RUTAKANGWA JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL I certify that this is a true copy of the original. (Z.A. MAIA) DEPUTY REGISTRAR 7 I I I. J •