20110923 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: KIMARO, J.A., LUANDA, J.A., And ORIYO, J.A.) CRIMINAL APPEAL NO. 193 OF 2005 ELIAS MTAJU TOROKOKO ...............................................APPELLANT VERSUS THE REPUBLIC ............................................................. RES PON DE NT (Appeal from the judgment of the High Court of Tanzania at Mwanza) (Masanche, J.) dated 18th day of July, 2005 in Criminal Appeal No. 144 Of 2004 RULING OF THE COURT 20 & 26 September, 2011, KIMARO, J.A.: When the appeal was called on for the hearing, Mr. David Kakwaya, Learned State Attorney representing the respondent/Republic rose to argue a preliminary objection, notice having been filed earlier, on 19th September, 2011. Unfortunately, the notice of preliminary objection does not cite the - Rule under which it is made. However, this being a criminal appeal, and 1 the Court of Appeal Rules, 2009 do not provide for a specific Rule to cater for preliminary objections, in criminal appeals, it must fall under rule 4(2) (a) of the Rules. The preliminary objection is challenging the notice of appeal filed by the appellant. Citing Rule 61 of the 1979 Court of Appeal Rules, the learned State Attorney submitted that the notice of appeal which is supposed to institute an appeal in criminal cases, was supposed to be filed within fourteen days from the date of the delivery of the judgment. The judgment to be impugned was delivered on 18th July, 2005. The calculation of fourteen . - days from 18th July 2005, contended the learned State Attorney, ended on 31 st July 2005. Mr. Kakwaya said the notice of appeal in the record of appeal shows that it was filed on 18th August, 2005, eighteen days after the expiry of the fourteen days allowed by rule 61 for filing the notice of appeal. The learned State Attorney said although the appellant is a prisoner, he would have benefitted from a waiver to the compliance of the fourteen days period if the requirements stipulated in Rule 68(3) were complied with. Under the said rule, the Prisoner Officer- in -Charge of the Prison in which the appellant is detained is required to endorse the date and time of 2 receiving the notice of appeal from the appellant. Since this was not done, argued the learned State Attorney, the appellant had to strictly comply with rule 61 by filing the notice of appeal within fourteen days from the date when the judgment was delivered. The Court required the learned State Attorney to express his views on the affidavit sworn by SP. G.S. LUBIMBI, an Officer -in -charge of Butimba Prison where the appellant is serving his sentence, deposing on the circumstances which led to the delay and its effects on the application. In the affidavit it is deposed that the notice of appeal was delayed because of the negligence of the prison officer and not the appellant. The response by the learned State Attorney was that the affidavit cannot change the status of the notice of appeal. What is contained in the affidavit, said the learned State Attorney, would be good reasons to support the appellant's application for an extension of time to file notice of appeal out of time. However, it cannot be accepted by the Court as making the notice of appeal being filed in time. He urged the Court to strike out the appeal because it is incompetent. On his part the appellant submitted that the Court should take into consideration the fact that he is a prisoner with no freedom to possess a 3 __.. pen and the required papers for writing the notice of appeal, let alone the freedom for making movements to the Court to comply with the procedure for filing the required documents necessary for contesting his innocence. He urged the Court to believe what the Officer in-charge of the Prison at Butimba has deposed in his affidavit that he is the one to blame for the delay in filing the notice of appeal but not the appellant. He prayed that the preliminary objection be overruled and appeal be heard on merit. In brief reply the learned State Attorney reiterated his earlier submission that the requirement for filing a notice of appeal within the time stipulated in rule 61(1) now rule 68(1) of the Court of Appeal Rules, 2009 is mandatory. The appellant can only enjoy a waiver from this requirement where the officer in-charge of the prison where he is held endorsed the date and time when the appellant gives the notice of his intention to appeal. Short of compliance with this requirement, the learned State Attorney contended, the notice of appeal is time barred; hence there is no appeal before the Court. He cited to the Court the case of David Matiku Vs R Criminal Appeal No. 265 of 2006 CAT (unreported) to support his submission. He prayed that the appeal be struck out. 4 .• . The judgment of the High Court which the appellant seeks to impugn was indeed delivered in the presence of the appellant on 18th July, 2005. The notice of Appeal was filed in Court on 15th August, 2005. The learned State Attorney submitted correctly, that Rule 61(1) of the 1979 Court of Appeal Rules required the notice of appeal to be filed within 14 days of the decision appealed against. It was also correct for the learned State Attorney to say that for appellants who are in prison they are exempted from compliance with Rule 61 of filing the notice of appeal within 14 days from the date of the decision appealed against. For such appellants, the law imposes a responsibility on the Prison Officer in-charge of the prison to facilitate the filing of the notice of appeal for them. The contents of a notice of appeal are contained in Form B of the 1979 rules (now Form B/1, 2009 Rules). What the appellant has to do is to fill in the particulars required in the notice of appeal and hand the same to the Prison officer - incharge for certifying the date and time of receipt of such notice of appeal, stamping the same and then filing it with the Registrar, High Court of Tanzania. In terms of Rule 68(2) (a) and (b) of the 1979 Rules, (now rules 75(1) and 75(2) (a) and (b)) the period between the appellant's conviction and his arrival in prison, as well as the time between the signing 5 of the notice of appeal and its lodging with the Registrar of the High Court of Tanzania is excluded. Although the notice of appeal, subject of the preliminary objection, has a signature of the Prison Officer, it has neither a date nor the time to show when the officer incharge of prison received the notice of appeal from the appellant. In such a situation, it is difficult, for purposes of computation of time, to ascertain whether the notice of appeal was filed in time. There is no date given for assisting in making the computation. We do agree that the appellant is in prison and his freedom is indeed curtailed. That however, does not make the officer in-charge of prisons fail to comply with the requirements of the law because his responsibility is simple. It is to insert the date and time for receipt of the notice of appeal on the document. After all, if he was able to sign the notice of appeal, why did he not endorse the date and time he received the notice of appeal? That is what the law requires him to do. Under such circumstances he cannot justify his negligence by filing an affidavit requiring the Court to waive the requirement of the law. The learned State Attorney pointed out correctly that the reasons given in the affidavit of the Prison officer are good reasons for supporting an application for extension of time to file a 6 <; • notice of appeal out of time. In such a situation, much as we sympathise with the appellant for the further delay he is going to undergo while making sure that the law is complied with, there is no short cut for us. We uphold the preliminary objection and strike out the appeal. The appellant is at liberty to file the appeal after being granted extension of time to file the notice of appeal out of time. It is accordingly ordered. DATED at MWANZA this 23 rd day of September, 2011. N. P. KIMARO JUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL COURT OF APPEAL 7