ASAFU RAFAEL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (KIGOMA SUB-REGISTRY) AT KIGOMA MISCELLANEOUS CRIMINAL APPLICATION NO. 10 OF 2023 DIRECTOR OF PUBLIC PROSECUTION APPLICANT VERSUS ASAFU RAFAEL RESPONDENT (Arising from the Judgment in Criminal Case No. 8 of 2022, in the District Court of Uvinza at Uvinza) RULING Date: 03/06 & 19/07/2024 NKWABI, J.: Under the provisions of section 379(2) of the Criminal Procedure Act, the applicant is praying for the following orders: 1. That, this honourable Court be pleased to allow this application to file notice of intention to appeal and petition of appeal out of time. 2. Any other relief(s) this honourable Court deems fit to grant. The applicant seems to be aggrieved by the decision of the trial court in Criminal Case No. 8 of 2023. In that case, the trial court dismissed the charge of rape that the respondent stood trial for. That charge sheet was dismissed after a full trial was conducted and the trial court was satisfied that there was no sufficient evidence upon which to convict the respondent. 1 When this application came up for hearing through oral submissions, Ms. Flora Lucas, learned State Attorney, appeared for the applicant. Mr. Sadiki Aliki, learned counsel, represented the respondent. I am indebted to them for their industrious preparation for the hearing. To substantiate the application, Ms. Lucas, firstly adopted the affidavit in support of the application as part of her submissions. She then elaborated that under section 379 (2) of the Criminal Procedure Act, the Court is empowered to extend time on good cause. She referred me to the case of Kalunga & CO. Advocates v. National Bank of Commerce, [2006] T.L.R. 235. She stated that in Criminal Case No. 8 of 2022 of Uvinza district Court they were unable to file the notice of intention to appeal within time on the grounds that the District of Uvinza has no National Prosecutions Office whereby it is the OC-CID's office that prosecutes the criminal cases. She added that the QC-CID office wrote to the District Court to be served with the copy of proceedings and judgment. The QC-CID office took it to be the notice of intention to appeal, thereafter they notified the National Prosecutions Service Office. She also stated that when they got the proceedings and judgment, they wrote to the National Prosecution's office so that they may take further legal action. The Prosecutions office discovered that the letter was not a notice of intention to appeal. They 2 yet found that the time for filing notice of intention to appeal had lapsed, they thus, filed this application. She pointed out that in law, the letter does not suffice to be a notice of intention of appeal. For that reason she prayed this application be granted. Mr. Aliki objected the application and asked this Court to dismiss the application because there is insufficient cause for extension of time within which to file the notice of appeal and the petition of appeal. He said, judgment of the district Court was delivered on 23/03/2023. Under section 379(1) (a) of the Criminal Procedure Act, the applicant had 30 days to file a notice of intention to appeal. Mr. Aliki further stated that on the 7 th paragraph and sth paragraph of the supporting affidavit, the grounds were delay of the OC-CID Uvinza district to notify the National Prosecutions Service office about the outcome of the case. But they did not say why the information had not been issued to National Prosecutions Service office until 24/4/2023 when the 30 days ended. There is no good cause as to why notice of the decision to the National Prosecutions Service office from the OC-CID office delayed to be issued, insisted Mr. Aliki. 3 On the claim about the letter asking for copy of judgment and proceedings is the notice, Mr. Aliki maintained that those words are hearsay, there is no affidavit of the OC-CID Uvinza proving so. He stressed that, public prosecutors are provided instrument by the DPP to work on his behalf and under section 377 of the Criminal Procedure Act covers the public prosecutors, so they know the procedure of filing a notice of intention to appeal. The OC-CID was not the prosecutor. The affidavit of the applicant does not say what the prosecutor caused him fail to lodge the notice of intention to appeal, stated Mr. Aliki. Mr. Aliki also elaborated that the application was filed on 07/08/2023 which are 97 days after the 30 days of filing notice. The applicant has not accounted for each day of the delay especially on those 97 days. He stated that, the case cited by the applicant's State Attorney, yet every day has to be accounted for. He parroted Airtel Tanzania Ltd v. Misterlight Electrical Installation Co. Ltd & Another, Civil Application No. 37/01 of 2020 where the Court of Appeal rejected the application for the applicant failed to account for each day of the delay. Mr. Aliki went on to explain his stance that, the applicant is relying on ignorance of law by the OC-CID, but he pointed out that that does not constitute good cause for extension. He backed his argument with the 4 decision in Wambura N.J. Waryuba v. The Principal Secretary Ministry of Finance & Another, Civil Application No. 225/01 of 2019 at page 5. The case of Kalunga advocates does not come to the assistance of the applicant, insisted Mr. Aliki. He then prayed the application be dismissed. In a brief rejoinder Ms. Lucas eloquently stated that, good cause depends on the circumstances of each case. She underscored that their grounds are merited. In the end, she prayed this Court to allow the applicant to file an appeal out of time. Going through the submissions of both counsel, it is clear both parties accept that this Court has mandate to extend time where good cause or sufficient ground has been provided by the applicant. They are too aware that this Court has power to extend time where there is an illegality apparent on the face of the record on the impugned decision. They are both aware that ignorance of law has never been a good ground for extension of time within which to do what was required of the applicant but has not been done. It also appears to me that the learned stated Attorney for the applicant is quite aware that the public prosecutor is appointed by the Director of 5 Public Prosecutions, thus, such a prosecutor should know that when aggrieved with the decision, one has to lodge a notice of intention to appeal within the specified time and that a letter requesting for copies of proceedings and judgment does not amount to notice of intention to appeal. What is clear from the affidavit in support of the application and the submissions of the learned State Attorney is poor communication between the applicant and the office of the Regional Crimes Officer Kigoma region. That as correctly stated by Mr. Aliki, cannot amount to sufficient ground for the delay which in turn would amount to accounting for each day of the delay. It is also not stated as to why the Reginal Crimes Offer failed to communicate with the applicant of his being aggrieved by the decision of the district court. Ms. Lucas appears to be relying on a case which has facts which are distinguishable to the facts of this application, so inapplicable in this application. That case is Republic v. Vona Kaponda & 9 Others [1985] T.L.R. 84 (CA) where it was underlined that: ''In deciding whether or not to extend time I have to consider whether or not there is 'sufficient reasons: As I understand it, 'Sufficient reasons' here does not refer only, and is not confined, to the delay. Rattier; it is 6 'sufficient reason' for extending time/ and for this I have to take into account also the decision intended to be appealed against the surrounding drcumstences: and the weight and implications of the issue or issues involved. There are thus obviously conflicting views. The reality however. is that there are these eleven people/ and probably a lot more/ who are out on bail and who the Republic contends ought not to have been released on bail. These people ought to know whether or not they are legally out '' In the present application, judgment of the district court was delivered on rd 23 March 2023 while this application was lodged in this Court on 7th August 2023 after more than four (4) months after the decision of the trial court was delivered. That does not connote diligence in handling the matter. Diligence would be imputed if the applicant had acted promptly like in Benedict Mumello v. Bank of Tanzania, Civil Appeal No. 12 of 2002 where it was stated: "In the instant case, it is common ground that the respondent applied for copies of the proceedings and judgment on 6.1.1999 which was just about 14 working 7 days of the date of the decision intended to be appealed against. It is also common ground that the respondent was supplied with the same on 8.12.1999 after a reminder and filed the application on 16.12.1998. In our view, applying for copies of proceedings and judgment within such a short time from the date ofjudgment and later making a follow up by way of reminder, and finally lodging the application immediately after being supplied with the same, depicts diligence on the respondent. '[emphasis mine]. It should also be noted that it is the law of our land that where an affidavit mentions another person, that person should swear an affidavit. The Regional Crimes Officer was mentioned in the affidavit in support of the application. Failure to swear an affidavit, anything that is suggested to have been said by him remains hearsay, which is incapable of founding a remedy. That is the position as stated in Ramadhani J. Kihwani v. TAZARA, Civil Application No. 401/18 of 2018, CAT (unreported) where it was ruled that: ''In application for enlargement of time/ like the present all material persons must swear affidavits to trigger the 8 ,. Court exercise its discretion under rule 10 of the Rules - see: Mary Rugomora v. Rene Potete, Civil Application No. 2 of 1992 (unreported)." At this point in time, I think that it is opportune to remind the parties to suit of the words stated by this Court in John Cornel v. A. Grevo (T) Ltd, Civil Case No. 70 of 1998 HC (unreported) thus: "However unfortunately it may be for the plaintiff; the Law of Limitation/ on actions. knows no sympathy or equity. It is a merciless sword that cuts across and deep into all those who get caught in its web. // In the premises, I find that this application is not merited because the applicant has failed to advance good cause for extension of time within which the applicant would lodge the notice of intention to appeal against the judgment in Criminal Case No. 8 of 2022. This application stands dismissed. It is so ordered. DATED at KIGOMA this 19th day of July, 2024. tt>v k4\ J. F. NKWABI JUDGE 9