20140227 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA

AT TABORA (CORAM: MSOFFE, J.A., KIMARO, J.A., And MJASIRI, l.A.) CRIMINAL APPEAL NO. 139 OF 2009 PAUL S/0 MAVAI .................................................................. APPELLANT

VERSUS THE REPUBLIC ......................................................................RESPONDENT {Appeal from the Ruling of the High Court of Tanzania at Tabora) ' {Mujulizi, J.) dated 30th day of March, 2009 in Miscellaneous Criminal Application No. 1 of 2003 .•.•••..................

JUDGMENT OF THE COURT 26th & 28th February, 2014. MSOFFE, l.A. The District Court of Maswa convicted the appellant of armed robbery and sentenced him to the statutory thirty years terr11 of imprisonment. Aggrieved, he appealed to the High Court of Tanzania at Tabora where his appeal was summarily rejected. Realizing that he was late in appealing within time to this Court against the summary rejection Order he filed an application before the High Court seeking enlargemen:t of time to file a I notice of appeal. Needless to say, the application to that effect was taken or grounded under the provisions of section 11 of the Appellate Jurisdiction Act (CAP 141 R.E.2002) (the Act) which may, be read together with Rule 47 of the Tanzania Court of Appeal Rules, ?009 (the Rules). Anyhow, the High Court (Mujulizi, J.) in a Ruling dated 30/3/2009 declined the request hence this appeal. Before us the appellant appeared in person, unrepresented, I whereas the respondent Republic had the services of Ms. Juliana Maka, learned State Attorney. At first, Ms. Juliana Maka had sought, to object to the appeal. On reflection however, she changed her mind and argued in support of the appeal. For reasons that will emerge hereunder she was justified in supporting the appeal. Before we address the merits or otherwise of the appeal we wish to point out that Mujulizi, J. canvassed a number of aspects which

had no I relevance to the application before him. We say so because, in citing the case of Shanti Hindoga and Others (1973) E.A. 2007 that in an application of the nature that was before him the main I consideration is whether or not an applicant has shown sufficient reason to explain the delay in appealing within time, shows that the learned judge was well aware of the main factor that has to be taken into account in an application 2 1 of the said nature. Yet, he went on to ~aise and consid er other matters • j, i I i which were not the issues of the moment. Indeed, to say the least, in the II i process he raised and discussed certain ~atters which w~re not within his jurisdiction to address. Two examples, aJ under, will hel~ to demonstrate, . I I illustrate and elaborate this point. I One, in answer to the appellant's ~ssertion that he! could not appeal /' ; within time due to lack of stationeries in the prison orrice, the learned .' 1I , judge cited Rules 61 (1), 65, 66, 67 and 68 (1) of the · Rules. We think in 1 I I . the justice of this matter it was not neG:essary to cite these Rules in the application before him where, as state~ earlier, the ~ain consideration ought to have been whether or not suffiJient I reason had. i been disclosed to grant the said application. I Two, in refusing the applicatio'n the learned 'judge cited the

I I I ' I provisions of section 6 (7) (a) of the Act/, to the effect thc;)t an appeal could · ,I! 1 only lie on a matter of law (not includindi severity of sent~nce) but not on a 11 i matter of fact. To this end, he went on to conclude thus;- "Consequently, therefore since te order is not kppea/able I I 1: r I i it would be for nothing to gran~ the applicant e}(tension of 3 .

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I II , I, 11 I time to file a notice of appeal when he has no right of appeal." With respect, the learned judge erred. Whether or not the appellant had a right of appeal was not the issue of the moment before him. Worse still, we think it was not quite in order for him to cite section 6(7) (a) given the nature of the application before him. Admittedly, under paragraph (b) I • thereto the High Court has power to certify a point of law for consideration and decision by this Court. However, under paragraph (a) thereto it is not explicit that only the High Court has power to grant leave to appeal. In practice, in a fit case this Court too has power to grant leave under paragraph (a). At any rate, all this is academic because the application before Mujulizi, J. had nothing to do with leave under paragraph(a) or a certificate under paragraph (b ). Back to the application. The main reasons given by the appellant in his application for enlargement of time are best captured, under paragraphs 3, 4 and 5 of his affidavit in support of the application to the High Court. He deponed that the order for summary rejection was given on 5/7/2001 in his absence and was communicated to him on 26/6/2002 when there was 4 _ an acute shortage of stationeries in the prison. He was not contradicted by anyone in his averments to the above effect. On th~ contrary, on 23/2/2009 Ms. Kitali, learned State

Attorney appearing on behalf of the respondent Republic, told Mujulizi J. in support of the appellant's assertion, thus:- ' My lord, after going through the affidavit I am ,satisfied that they are a reasonable explanation for the delay. I therefore have no objection to the grant of the prayer. In the absence of evidence to the contrary we thin.k that it was not open to the learned judge to refuse the appellant's application in the manner he did. If anything, in our considered view, the appellant exhibited sufficient reason to explain the delay in appealing within time. We appreciate that in trying to exp!_ain away the issue of stationeries the learned judge had this to say:- ...So in this case a correct rendering of the events, for instance as to when the applicant first obtained the 5 . ! ,, . .. necessary stationery was and is critical to an application of this nature. As it is, both the applicant, and the prison authority avoided committing themselves on paper by failing to give specific dates. (Emphasis added.) With respect, we think that this statement was, and indeed still is, speculative and not supported by the record. In the absence of evidence that both the appellant and the prison authority "avoided committing themselves on paper by failing to give specific dates, "we think the judge's reasoning on this point was not only speculative as already alluded to but in

effect it amounted to condemning them unheard because he had no basis or good and sufficient material before him upon which he could back up or substantiate this serious assertion that they "av.oided committing themselves." For the foregoing reasons, this appeal has merit. We accordingly allow it. We grant the appellant a period of thirty days fr~m the date of this 6 I I . .• I Ruling to file a notice of appeal against i the Order of ~wita, J. dated j 5/7/2001. : ! I DATED at TABORA this 2ih day of February, 2014. ' I ! . ' J. H. MSOFFE

JUSTICE OF APPEAL I j I N. P. KIMARO

JUSTICE OF APPEAL j I S. MJASIRI

JUSTICE OF APPEAL I I I certify that this is a true copy of the original. I ' I ! ~ P:v(·BAr~PIKYA . SENIOR DEPUTY REGISTRAR

COURT OF APPEAL j

I I I ! 7 ! I I I, I