20140226 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA AT TABORA ~\CORAM: MSOFFE, J.A., KIMARO, J.A., And MJASIRI, J8A.) CRIMINAL A.PPEAL NO. 294 OF 2010 NYANDWI BUDUMA ■ •11 ■ 1 ■■••••••• ■■■ 1 1,■■ ••••••••••a ■■■■■■ 11 ■■■■■■■■■■■■ APPELLANT. VERSUS THE REPUBLIC .............................•.... 11 • • • • • • • • • • • • • • • • • • • • RESPONDENT· (Appeal from the ruling of the High Court of Tanzania at Tabora)· (Mziray, J_J Dated 7th December, 2005 in· Misc. Crimina! Application No. 25 of 2002 ···········••11 ■■■■ JUDGMENT OF THE COURT 24th & 27th February, 2014 KIMARO, J.~. On ih December, 2005, the High Court of Tanzania at Tabora, (Mziray, J.) dismissed an application filed by the appellant for extension of . time to file a notice appeal.The appellant w~s convicted by the District Court of Kigoma on 28th August, 2001 wlth the offence of armed robberyand was sentenced to imprisonment for thirty ·years. The district ;:rnHt delivered its judgment on 28th August, 2001. He was ;.Jggrlf.::Ved by ' · 1 .......... ' the conviction and the sentence. According to section 361 of the Criminal Procedure Act, Cap 20 [R.E.2002] :he was requir~d to file a notice of appeal . indicating his intention to appeal against the conviction within ten days .\ from the date of the. conviction. He failed to file the notice of appeal in time and that led him to seek for an extension of time to file the notice· of appeal. That application was filed on 22~d February, 2002. His applic;:ation was dismissed. In dismissing the application, the learned judge held that: "The applicant allege that he was hpspitalized for three days upon admission in prison,. Assuming that is ttue, still he had seven days left within which he would have given_ notice of his intention to appeal. By delaying for six months and sixteen days clearly show that the applicant was not serious in pursuing his right of appeal. This renders the application hopelessly out of time." (Emphasis is ours). 2 .Aggrieved by the ruling of the learned judge, the ,applicant filed three grounds of appeal challenging the merit of the decision of the High Court. ~ In: the first ground of appeal, which however has no relevancy to this appeal, the applicant says his conviction was based ~n weak prosecution· evidence· and so his appeal has high chances of success. We say· this · ground has no connection with the present appeal because the applicant is · · challenging the refusal by the High Court to enlarge time for him for filing an appeal to challenge the conviction and the sentence that was imposed by the trial court. In his second ground of appeal the appellant laments that the learned judge was requirep to consider that he was a prisoner, in custody,· and he was not in a position to compel the prison officer to take steps that would enable him to file his appeal in time. The third ground is related to the second one. He says that the delay in filing the notice of_appeal was out of his control because of being 3 •·. ~._;:,__ - i t,::· .. !"=~ ., I, l=-- t~· ]""- [ in custody, he is a layman and had no advocate to take the right procedure . ' . ·. ' i . ' : required for him to lodge the notice of appeal !n time. , l During the hearing of the appeal -t~e appellant appeared in person. . ' The respondent/Republic was represented by Mr. Jackson Bulashi, learned· Principal State Attorney. The appeltant opted to elaborate on his grounds of appeal after the · learned Principal State Attorney responded to hjs grounds of appeal. · At first the learned Principal State Attorney objectedto the appeal but upon . reflection, he supported the appeal. He conceded that because the appellant was a prisoner, he could not comma11d the prison officer to assist him in filing the notice of appeal in time. Since the learned Principal State Attorney supported the appeal, the appellant requested the Court to allow the appeal so that he can file the notice of appeal out of time and the appeal against the decision of the District Court of Kigoma. In support. of -his appeal he cited to us this Court's decisious in· the cases of' !ii1.L 1;ulalamwe VR Criminal Appeal No. ·,_ ..,. ,; 'i '.-~. .. - •. I _: • '. • \ ~ ~ 4 ·-~=- t~ - - - \ r--··· ~~.-- 283-of-2005 and Elias Msonde VR Criminal Appeal NO'. 93 of'2005 (bqth unreported) . . We have gone through the grounds of appeal and the 'submission m·ade by the respective parties in this appeal. Section 361(2) of the Criminal ·Procedure Act, Cap. 20 gives the Hi~h ' Court of Tanzania the·discretion to extend the period for filing· an ap·peal or' a notice of intenion to appeal 'upon the applicant showing good cause. · The reasons the appellant gave for failing to file the notice of appeal in time was admission in hospital for three days after admission in prison. • I This. reason did not convince the learned judge to have been good cause . for granting the appellant extension of time to file the appeal. · Before us the appellant says that the learned judge· should have taken note of the fact that he is a layman and is in prison and so he had no control over the process of filing the notice of appeal in time. 5 , t::.r·• . In the :circumstances of this case we agree with the learned Principal State Attorney, and· the appellant that being a layman and a prisoner was a factor the learned judge ought to have considered in giving :his decisi.on. · An important question which arises is whether a prisoner like the appellant would have powers of giving directions to the Prison officer.:. in,:charge to take the appropriate steps necessary for filing his notice of appeal in time. To us the answer is NO. Definitely, the prisoner is always insubordinate to the officer-in-charge of the prison with no control powers over him at all. He entirely depends on the willingness of the prison officer-in-charge to faithfully fulfill his responsibilities as provided for by the law and even do something more in ensuring that he provides assistance to the prisoner. Thus, in our considered opinion we agree with the appellant that the learned judge should~ have ev~luated the circumstances which befell the appellant for being a layman and prisoner and the problems of securing the assistance of a prison officer. In this respect,in the circumstances of this case he had sufficient cause which delayed him to file the notice of appeal in time. He was under the mercy of the prison officer-in-charge. 6 . . .We allo~ his _appeal. In line with~ the dictates ·of section 361(1) (supra), the appellant has to file the notice of appeal within ten days from the .delivery of this ruling. It is ordered. , .A,• • · DATED at TABORA this 26th day of February 2014. J. H. MSOFFE JUSTICE OF APPEAL N. P. KIMARO .JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL . I certify that this is a true copy of the original. P~KYA SENIOR DEPUTY REGISTRAR COURT OF AP'PEAL 7 ;