jumanne hussein bilingi vs republic 2015 tzca 342 21 july 2015

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CRIMINAL APPLICATION NO. 20 OF 2014 JUMANNE HUSSEIN BILINGI... ................................ APPLICANT VERSUS THE REPUBLIC....................................................... RESPONDENT (Application for extension of time within which to file application for review of the decision the Court of Appeal of Tanzania at Dar es Salaam) (Lubuva, Munuo, Kaii, JJJ.A.) Dated 18th day of May, 2004 in Criminal Appeal No. 69 of 2004 RULING 15th & 21st July, 2015 MBAROUK. J.A.: This is an application made by way of notice of motion under Rule 10 and 66(1) (a) and (3) of the Tanzania Court of Appeal Rules, 2009 (the Rules) seeking for the order of extension of time to file an application for review of the decision of this Court in Criminal Appeal No. 69 of 2002 dated 18th day of May 2004. In support of the application there were two affidavits, one is that of Jumanne s/o Hussein Bilingi - the applicant, and that of Makoti Anthony Wabare, the Officer in- Charge of Isanga Central Prison of Dodoma. When the application was called on for hearing, the applicant appeared in person and fended for himself. He had -— nothing to elaborate from what he has stated in his affidavit. He opted to allow the learned State Attorney to submit first and wished to respond thereafter. On his part, Mr. Othman Katuri, learned State Attorney represented the respondent/Republic and from the outset he indicated to support the application. He gave two reasons, firstly, that in the applicant's affidavit not paragraph 4, it has been clearly stated that one of his grounds of review is that there is manifest error on the face of the record which resulted into miscarriage of justice in the intended judgment sought to be reviewed as shown in paragraph 4 of the applicant affidavit. However, the said judgment was supplied to the applicant late. Judgment was produced on 14th July, ^ 0 0 4 and the applicant received the copy of judgment and drafted his application for review on 25th June, 2005 within time prescribed by law and handed over to prison authorities for further legal process of typing the application. He said. that process of typing caused a delay which was beyond the ability of the applicant being a mere prisoner. In addition to that, he said, paragraph 6 of the applicant's affidavit shows 4iqw ^n—several— occasions— the applicant tried to file applications which were struck out for legal technicalities finally now he has preferred this application. For all those reasons, the learned State Attorney urged me to grant the application. According to Rule 10 of the Rules, the applicant seeking an extension of time is supposed to show good cause before the Court uses its discretion to grant him extension of time. The applicant is required to show and explain what prevented him from lodging his/her application within the prescribed time. In doing so, the applicant has to account for every day of the delay caused by him in his affidavits. See, ANuminium Africa Ltd. Vs Adil Abdallah Dhijabi, Civil Appeal No. 6 of— 1990 (unreported). ---- In the instant application, the applicant has lodged his notice of motion supported by two affidavits, one is that of his own and another one that of the Officer in-charge of Isanga Central Prison of Dodoma. Taking into account that the judgment sought to be reviewed was delivered on 14th July, 2004 (as per paragraph 4 of the applicant's affidavit) and the applicant received his copy of the judgment on 25th June, 2005, whereas this application was lodged on 22nd October, 2014 which is around nine (9) years, that by itself shows how inordinate the delay was. Even if the applicant attempted to file some applications in between that period and in addition to that as stated by the Officer in-Charge of Isanga Central Prison of Dodoma at paragraph 8 of his affidavit that there was a breakdown of typing pool in his office during that particular time I am of the opinion that, that statement is too general to warrant me to exercise my discretion under Rule 10 of the Rules. This is because, the words "during that particular time" are too general and not enough to account for every day of the delay caused by the applicant. (See, Alluminium Africa Ltd. (supra). After all, the affidavit of the Officer in-Charge of Isanga Central Prison of Dodoma is completely silent on which specific period there was such a breakdown of typing pool in his office. Was it for the whole period of nine (9) years. I think, it is not practicable that for all that period of nine years, the Isanga CentraTPrison of Dodoma had a breakdown of its typing pool. Apart from that, it has to be beared in mind that review of the decisions of this Court is not another stage or step in the appeal process or structure in our legal system. After all, review is not an appeal or a second bite. As pointed out in the case of Efficient International Freight Ltd and Another Vs. Office Du The Du Burundi, Civil Application No. 23 of 2005 (unreported), this Court observed as follows:- yet again o f late it is apparent that some parties appear to think that once aggrieved by the outcome o f an appeal there is always an — automatic right o f a review. " In yet another decision of this Court in the case of Marcky Mhango (on half o f 684 Others Vs. Tanzania Shoe Co. Ltd and Tanzania leather Associated Industries, Civil Application No. 37 of 2003 (unreported) it was held that:- ------------"It is the duty o f the Court to desist from delayed applications such as this the effect of --------------- which is to re-open a matter which was otherwise lawfully determined." All said and done, this being the position, with due respect to the learned State Attorney I declined to agree with him that this appeal has merit. Taking into account that each case has to be decided on its own facts, and for the above stated reasons, I am not satisfied that "good cause" has been shown by the applicant to warrant me exercise the discretion confirred upon me under Rule 10 of the Rules to grant extension of time to apply for review. In the end result, I find this application devoid of merit and it is accordingly dismissed. DATED at DAR ES SALAAM this 16thday of July, 2015. ___ M. S. MBARQUK JUSTICE OF APPEAL I certify that this is a true copy of the original.