Laden Salanga vs

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SONGEA (CORAM: HON. UPENDO MADEHA) MISCELLANEOUS CRIMINAL APPLICATION NO. 000011105 OF 2024 LADENI RAJABU SALANGA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS .............................. RESPONDENT / DEFENDANT RULING Fly Notes - Facts The Applicant, Ladeni Rajabu @ Salanga, filed this application seeking for extension of time within which he may lodge an appeal out of time. As a matter of fact, the application is made under section 361 (2) of the Criminal Procedure Act (Cap. 20, R. E. 2022) and supported by an affidavit affirmed by the Applicant himself. Ratio Decidendi - 14th of June 2024 Hon. MADEHA.: To begin with, the Applicant, Ladeni Rajabu @ Salanga, filed this application seeking for extension of time within which he may lodge an appeal out of time. As a matter of fact, the application is made under section 361 (2) of the Criminal Procedure Act (Cap. 20, R. E. 2022) and supported by an affidavit affirmed by the Applicant himself. The application has been resisted by the Respondent through a counter-affidavit sworn by Mr. James David Rhobi, the learned State’s Attorney. Briefly, the facts of this case as they can be depicted from the affidavit sworn by the applicant are as follows: Before the District Court of Namtumbo at Namtumbo, the Applicant was charged and convicted for two (02) counts. The first (1st) count was for the offence of rape contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code (Cap. 16, R. E. 2022) and the second (2nd) count was for the offence of impregnating a school girl contrary to section 60A (1) (2) of the Education Act (Cap. 353 as amended by the Written Laws (Miscellaneous Amendments) Act, No. 02 of 2016. After conviction, the Applicant was sentenced to serve thirty (30) years Page. 1 Hon. UPENDO MADEHA imprisonment for each count and the sentences were ordered to run concurrently. At the hearing of this application the Applicant had no representation, whereas Mr. James Rhobi, the learned State’s Attorney appeared for the Respondent/Republic. Submitting in support of this application, the Applicant told this Court that, he was convicted and sentenced by the trial Court on 26th December, 2023 and on 28th December, 2023, he filed the notice of intent to appeal. Coupled with that, he applied for the copies of judgment and proceedings for appeal purpose of which he was supplied when the time for filing an appeal has been expired. He added that he was supplied with the copy of proceedings twenty-two (22) days from the expiry of the days of lodging an appeal. Furthermore, he averred that, he was supplied with the copies of judgment and proceedings while he was in prison and he was informed that he was to file the petition of appeal through the e-Case Management System (eCMS) and he got some troubles in filing his appeal. Lastly, he prayed for this Court to allow this application so that he can file his petition of appeal out of time. On the other hand, Mr. Rhobi resisted the application. He started by stating that, according to the judgment of the trial Court, the Applicant was convicted and sentenced on 27th December, 2023 and not on 26th December, 2023 as stated by the Applicant. On the reasons for the delay as stated by the Applicant that he was supplied with copies of proceedings and judgment twenty-two (22) days after the expiry of the days of filing the appeal and that he got problems in filing his appeal through the eCase Management System (eCMS), he contended that, those reasons have no any proof but they are mere allegations. He also, submitted that, the Applicant has to prove that he was supplied with the copies of judgment and proceedings after the expiry of the statutory period for lodging an appeal. Furthermore, he argued that, on the issue of the challenges he got in filing his appeal through eCMS, he was required to file an affidavit either of the ICTO or of any Prison Officer to prove that he encountered with the challenges. To buttress his stance, he invited this Court to be guided by the decision of the Court of Appeal of Tanzania in the case of Dianarose Spareparts Limited vs. Tanzania Revenue Authority, Civil Application No. 245/20 of 2021 (unreported), in which it was stated that, where an affidavit mentions another person on a material point, that other person should also take an affidavit to prove what has been stated in that affidavit. He contended that, the Applicant’s failure to file an affidavit sworn or affirmed by the ICTO makes him to have no reasonable cause for his delay and the application become unmerited. In addition, Mr. Rhobi went on submitting that, the Court of Appeal of Tanzania through various cases, the laws have stated that, the Applicant must account each and every day of delay and a delay of even one day must be accounted with sufficient reasons otherwise there would be no reason of having rules prescribing the time limits within which certain actions should be taken. He invited this Court to make reference made in the case of Airtel Tanzania Limited vs. Misterlight Electrical Installation Company Limited and Another, Civil Application number 37/01 of 2020, the Court of Appeal of Tanzania at Dar es Salaam and he pray for this application to be dismissed since the Applicant has failed to account for each day of delay. On his part, the Applicant had no rejoinder submission. Page. 2 Hon. UPENDO MADEHA Having gone through the affidavit, the counter affidavit and the submissions made by the parties in this application, I find the main issue which needs to be determined by this Court is whether the Applicant has advanced good cause to convince this Court to exercise its discretion power to extend time within which he can lodge an appeal out of time. As a matter of fact, it is the established practice of this Court and the Court of Appeal which is the Apex Court in our jurisdiction that, for applications of this nature to succeed the Applicant has to elaborate clearly the reasons for the delay to enable the Court to use its discretion which is to be exercise judiciously. In Robert Madololyo v. Republic, Criminal Appeal No. 486 of 2015 [2018] TZCA 346 [14 February 2018; TanzLII], the Court of Appeal of Tanzania, quoting with approval the decision of the Supreme Court of South Africa in Uitenhage Transitional Local Council vs. South African Revenue Service, 2004 (1) SA 292 (SCA), cautioned that, in an application for condonation the applicant must furnish a detailed and accurate explanation of the causes of the delay to enable the Court to understand the situation and assess the responsibility. At the hearing of this application, the Applicant has submitted that the delay was caused by two (02) main reasons. One, is late supply of the copies of judgement and proceedings from the Trial Court. Two, the Applicant has stated that, he encountered with some challenges in filing the appeal through eCase Management System. Moreover, in his affidavit sworn in support of the application, the Applicant has stated that, the delay was caused by the trial Court failure to supply the case reference number to enable him to file his appeal through the electronic system. On the other hand, the Respondent’s learned State’s Attorney, resisted the application on the ground that the Applicant has failed to provide sufficient reason for this Court to use its discretion power to grant an extension of time or the Applicant to file his petition of appeal out of time. Additionally, he argued that the Applicant was to attach an affidavit to prove that he encountered some challenges in filing the appeal. Thus, he was to prove that the Trial Court delayed in supplying the copies of proceedings and judgment to the Applicant. It is important to note the fact that, for application of this nature to succeed, the Applicant has to show sufficient cause to enable this Court to exercise its discretion power. This Court in the case of Blue Line Enterprises Ltd vs. East African Development Bank, Misc. Civil Case No. 135/95 (unreported) stated that: “It is trite law that extension of time must be for the sufficient cause and that extension of time cannot be claimed as of rights, that the power to grant this concession is discretionary, which discretion is to be exercised judicially, upon sufficient cause being shown which has to be objectively asserted by Court.” Also, the Applicant has to account for each day of delay from the date the Trial Court delivered its decision. Refer to the decision of the Court of Appeal of Tanzania in the case of Lyamuya Construction Company Limited vs. Board of the Registered Trustees of the Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010. However, in this application, the applicant has failed to prove whether the trial Page. 3 Hon. UPENDO MADEHA Court delayed in supplying the copies of judgment and proceedings or case reference number. Again, he has failed to prove that he encountered challenges in filing his appeal. Bad enough, the Applicant’s reasons for the delay are inconsistent. While in his affidavit he averred that the delay was caused by the delay of the Trial Court to provide him with the case reference number, at the hearing of this application he stated that it was due to the delay in supply of the copies of judgment and proceedings. On the same note, the Applicant also has alleged that the delay was caused by the challenges in filing his appeal on the eCMS something which this Court was unable to find what was the real cause for the Applicant’s delay in filing his appeal on time. This makes a serious doubt in the Applicant’s credibility. Thus, in the circumstance of this application, I find that the Applicant has failed to have good reason to enable this Court to exercise its discretionary power to grant an order for enlargement of time for the Applicant to file an appeal out of time. Lastly, I hereby dismiss this application for want of merit. It is so ordered. Dated at SONGEA ZONE this 14th of June 2024. UPENDO MADEHA JUDGE OF THE HIGH COURT Page. 4 Hon. UPENDO MADEHA