20101018 TZCA Mwanza2

IN THE COURT OF APPEAL OF TANZANIA

ATMWANZA (CORAM: RAMADHANI, C.J., KIMARO, J.A., And .MANDIA, J. A.) CRIMINAL APPEAL NO. 148 OF 2006 ' I NGENDAIMANA PIERE ................ ~ ...................................APPELLANT '

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VERSUS ' i THE REPUBLIC ............................ J................................ RESPONDENT ,, (Appeal from the decision Qf the High Court of Tanzania at BLikoba) dated 12th May, 2006 Criminal Application. No. 33 of 2005. .............. '

JUDGMENT OF THE COURT 15th & 18th October, 2010 KIMARO, J.A. I: In the District Court of Biharamulo at Biharamulo, the appellant 1, pleaded guilty to the offence of armed robbery contrary to sections 285 I I' and 286 of the Penal Code, CAP 16 ~.E.2002 He was :convicted and sent to i jaiLfor thirty years. Having found hi;mself out of time in lodging an appeal 1 j . ,,'I '' ' (t to the High Court, he filed an application in the High Court under section 361 of the Criminal Procedure Act, CAP 20 seeking for extension of time to have the appeal heard out of time. In the affidavit that supported his application, the applicant deposed that, being a foreigner, he was not conversant with Kiswahili and he had no one to assist him in filing the appeal in time. He also said that he gave his notice of appeal to the prison authorities where he was serving the sentence. When the application was heard by the High Court, the learned State Attorney who appeared for the respondent Republic opposed it. Since the appellant was convicted on 23 rd August 2001, the learned State Attorney contended, and the application was filed on 10th February 2005, that was beyond the time allowed for lodging an appeal to the High Court. He found the reasons that the appellant gave in his affidavit not sufficient to support his application. He prayed for the dismissal of the appeal. In his ruling refusing the

application, the learned High Court Judge said the application being one for extension of time to lodge an appeal out of time, presupposed that a notice of intention to appeal was given. 2 However, there was none in the Court record. The learned judge went further and held that since the appellant had pleaded quilty to the commission of the offence, in terms of section 360(1) of CAP 20 he could not lodge an appeal except for the sentence. The application was then dismissed. The appellant was aggrieved and he lodged this appeal. The grounds of appeal by the appellant are attacking the judgment of the subordinate court and not the ruling of the High ·Court. This is understandable because the appellant is a lay person and could not make a distinction between what transpired in the High Court and what he was supposed to bring to this Court. At the hearing of the appeal the appellant appeared in person. The Respondent Republic was represented by Mr. Seth Mkemwa, learned State Attorney. At first the learned State Attorney was of the opinion that the appeal was wrongly before the Court and it should· be struck out. On ' reflection, he changed his position. He said since the right to appeal by the appellant is conferred by the law, and the appellant ·said he informed the prison authorities of his intention to appeal, and the affidavit is supported 3 by a certificate from the prison

authorities to the effect that the facts deposed therein were true, the Court could step into the shoes of the learned judge in the High Court and grant the application. He said that is more so because there was no counter affidavit from the respondent to dispute what was deposed by the appellant. The appellant being a layman had nothing useful to say in support of his appeal. In terms of section 359(1) of CAP 20, any person aggrieved by any finding, sentence or order passed by a subordinate court may appeal to the High Court. Section 359(1) also imposes a mandatory obligation on the subordinate court to inform an accused person of his right of appeal against such finding, sentence or order and the period within which to give a notice of appeal and to lodge the appeal. Section 359(2) provides that the appeal may be on a matter of fact as well as on a matter of law. In terms of section 361(1) the notice of intention to appeal must be given within ten days from the date of the finding, sentence or order. Section 361(2) provides that:- "The High Court may, for good cause, admit 4 an appeal, notwithstanding that the period of limitation prescribed in this section has elapsed " From the above provision, the Hi,gh Court has discretion to extend the time either for lodging a notice of appeal or an appeal. It is obvious that the appellant being a prisoner was literally under the mercy

of the prison authorities. There was no way he could force them to have the notice of appeal prepared for him, and be transmitted to the Court within the prescribed time. The appellant said he is a foreigner with no one to assist him in making a follow up. There was no counter affidavit to dispute what the appellant averred in his affidavit. Moreover, the certificate by the Prison Officer In charge of Bukoba Prison which appears on the chamber application as well as the affidavit supported the appellant. It reads:- ''! Prison Officer In charge of Bukoba prison CERTIFY that ngendaimana is a prisoner in this prison and nothing has been altered in this affidavit. Certified at Bukoba this Jdh day of Dec 2004. 5 Signed Signature of Prison Officer in-charge Sworn before me at Bukoba this 1:fh day of January 2005. Signed Resident Magistrate Bukoba With respect to the learned High Court Judge Luanda J as he then was, our strong view is that the reasons explained by the appellant on the delay in seeking for extension of time to lodge the appeal were sufficient for granting him extension of time to lodge a notice of appeal and hear the appeal. The High Court had the power to do so under the provision of section 361(2) cited above. It will be grave injustice on the part of the Court to deny the appellant a right conferred to him by the law simply because the prison authorities failed to

do what they were supposed to do. He is not the one to blame. The learned judge went further and said that the appellant had no right of appeal under section 360 of CAP 20 because he pleaded guilty. He 6 , could only appeal against the sentence. But the appeal was not yet before him and the appellant was not given an opportunity to be heard on that matter. In the case of Ndamashule Ndoshi V R Criminal Appeal No. 120 of 2005 the Court held that the right to hearing is a fundamental one. Although the record of appeal at page 11 shows that after the conviction and sentencing, the right of appeal was explained to the appellant, it does not show that the time limit for filing the notice of appeal was equally explained to the appellant. For the reasons we have explained above, we find the appeal by the appellant having merit. We allow it and grant the appellant an extension of time to lodge the notice of appeal as well as the appeal so that he can be heard. The notice of appeal should be lodged within ten days from the date of the delivery of this judgment. It is so ordered. DATED at MWANZA this 18th day of October, 2010 A. S. L. RAMADHANI

CHIEF JUSTICE 7 N. P. KIMARO

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JUSTICE OFAPPEAL W. S. MANDIA

JUSTICE OF APPEAL I certify that this is a true copy of the original. ~ P. W. Bampikya

SENIOR DEPUTY REGISTRAR 8