CRIMINAL APPLICATION NO 12 OF 2024 MUSSA MOSSES JOHN 2 OTHERS VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA CRIMINAL APPLICATION NO. 12 OF 2024 MUSSA MOSSES JOHN..........................................................1st APPLICANT ELIBARIKI RICHARD @ FAVOO............... ............ .............. 2nd APPLICANT NOEL MARTINE @ SHINYANGA........................................ 3rd APPLICANT

VERSUS THE REPUBLIC .......................................................................RESPONDENT (Application for Extension of time to file review against the Judgment of the Court of Appeal of Tanzania, at Arusha) (Mwambeaele. Kerefu. Kihwelo. JJA.^ dated the 5th day of December, 2022 in Criminal Appeal No. 50 of 2020

RULING 23rd October, 2024 & 27th December, 2024 KENTE. J.A.: Pursuant to Rule 10 of the Tanzania Court of Appeal Rules, 2009,(the Rules), the applicants have moved this Court to extend the time within which they can apply for review of our judgment in Criminal Appeal No. 50 of 2020 dated 5th December 2022 dismissing their appeal on its entirety for lack of merit. Initially, the applicants appeared before the District Court of Babati where they were charged with gang rape contrary to sections 130 (1) and 131A (1) and (2) of the Penal Code, Chapter 16 of the Revised Laws of Tanzania. They denied the charge and, after a full trial that ensued, they were convicted and sentenced to the mandatory custodial sentence of life imprisonment. Dissatisfied with the decision of the trial court, the applicants vainly appealed to the High Court of Tanzania at Arusha. Undaunted by the second defeat, the applicants appealed to this Court but, as stated earlier, on 5th December 2022 we dismissed their joint appeal and upheld the decision of the High Court. We also sustained the sentence imposed on them by the lower courts. The application before me is supported by an affidavit in which the applicants jointly deposed that, following delivery of our judgment on 5th December, 2022 which was delivered in their presence in court, they were unable to apply for review within the prescribed sixty

days period because they were not aware of the specific period within which an application for review ought to be made and that, by the time they discovered that in terms of Rule 66 (3) of the Rules, an application for review ought to have been made within sixty days of delivery of the impugned judgment, the said period had already expired. They also deponed that, given the circumstances, they were advised by the Prison Administration to lodge the present application. During the hearing of the application, the applicants who appeared in person without any legal representation, sort of added another ground in support of their application. They contended that, after dismissal of their joint appeal, they were transferred to various Prisons outside Arusha Region thereby making it impossible for them to sit together and decide on the course to take in pursuit of their rights. The third applicant for instance claimed that he was transferred to Dodoma Central Prison. The applicants also exhibited their intended sole ground of review claiming that during the hearing of the appeal, they were denied the right to be heard. For his part, Mr. Aliainenyi Njiro, learned Senior State Attorney who appeared to represent the respondent Republic, had very little to say in opposition to the application. The learned Senior State Attorney submitted that, the applicants had not furnished good cause to

account for the inordinate delay as the judgment sought to be reviewed was delivered on 5th December, 2022 while the present application was filed on 21st December, 2023 which was more than a year later. As regards the applicants' belated complaint that they were not accorded the right to be heard, Mr. Njiro submitted that, even a cursory glance at the impugned judgment of the Court shows that, during the hearing of the appeal, the applicants were given the opportunity to present their case and as such, they cannot be heard to complain today that they were denied that right. I was accordingly implored to dismiss the application for lack of merit. Now, Rule 10 of the Court Rules provides inter alia, that the Court, may, upon good cause shown, extend the time limited by the Rules for the doing of any act authorised or required by the Rules whether before or after expiry of that period. In the case of Lyamuya Construction Company Ltd v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010, we guided that: "As a m atter o f general principle, it is in the discretion o f the Court to grant extension o f time. But that discretion is judicial, and so it m ust be exercised according to the rules o f reason and justice, and not according to private opinion or arbitrarily, On the authorities however, the follow ing guidelines

may be form ulated: (a) The applicant m ust account for a ll the period o f delay; (b) The delay should not be inordinate; (c) The applicant m ust show diligence; and not apathy, negligence or sloppiness in the prosecution o f the action that he intents to take ; and" (d) I f the Court feels that there are other sufficient reasons such as the existence o f a point o f law o f sufficient importance, such as the illegality o f the decision sought to be challenged. In the present application, as stated before, the sole ground advanced in support of the application is that the applicants did not know that the application for review ought to have been filed within sixty days of delivery of the impugned judgment. Strictly speaking, if the legal principle that ignorance of law is no excuse is not a legal myth as indeed it is not, it follows in my judgment that the applicants' delay for almost one year to apply for review has not been justified. Regarding the period of delay, it is aiso clear from the record that the applicants spent inordinate time before they filed the present application in a plan which seems to have come to them as an afterthought. What is more, is the glaring fact that the applicants have not accounted for all the period of the delay as required by law. Moving forward, I need to say, though not necessarily in absolute terms that, as opposed to an application for

extension of time within which to file an application for leave to appeal or within which to appeal in which we have taken the view that, the chances of success of an intended appeal though a relevant factor in certain situations, it can only meaningfully be assessed later on appeal after hearing arguments from both sides (see Tanzania Posts & Telecommunications Corporation v. M/S H.S. Henritta Supplies [1997] T.L.R. 141), in an application for extension of time within which to file an application for review of the Court's judgment such as the instant application, in addition to considering whether the delay has been accounted for, the Court has to also consider whether the intended application for review is potentialiy meritorious. An application for review is meritorious if prim a facie, it meets any of the threshold that is set out in Rule 66 (1) of the Rules which provides that: "66 - (1) The Court may review its judgm ent or order, but no application for review shali be entertained except on the follow ing grounds- (a) The decision was based on a m anifest error on the face o f the record resulting in the m iscarriage o fjustice. (b) a party was wrongly deprived o f an opportunity to be heard: (c) the court's decision is a nullity; or (d) the court had no jurisdiction to entertain the case. (e) The judgm ent was procured ille g a lly o r by fraud or perjury." As can be

gleaned from the applicants' supporting affidavit, apart from pleading ignorance of law as a reason for delay in filing the intended application for review, the applicants have not contended to have been denied the right to be heard. As a consequence, they have not demonstrated how they were denied the said right. Moreover, as rightly submitted by Mr. Njiro, even a cursory glance at the impugned judgment shows that the applicants were accorded the opportunity to present their grievances against the decision of the High Court which they were challenging. This being the case, I find that the conditions laid down in Rule 10 of the Rules and the jurisprudence arising therefrom, have not been met to warrant the extension of time within which the applicants can apply for review of the judgment of this Court in Criminal Appeal No. 50 of 2020 dated 5th December, 2022. In the circumstances, I proceed to dismiss this application for want of merit DATED at DAR ES SALAAM this 27thday of December, 2024 P. M. KENTE

JUSTICE OF APPEAL The Ruling delivered this 27th day of December, 2024 in the presence of 1st, 2nd and 3rd Applicants and Mr. Stanslaus Halawe, learned State Attorney for the respondent/Republic, via video link from Arusha is hereby certified as a true copy of the original.