20101126 TZCA Zanzibar

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR (CORAM: MUNUO, l.A., KILEO, l.A. And BWANA, J.A.) ZNZ CRIMINAL APPLICATION NO. 1 OF 2010 SALUM JENGA SIMBA •••••••••••••••••••••••••••••••••••••.•••••••••••••••••••••••••••• APPLICANT VERSUS THE DIRECTOR OF PUBLIC ..PROSECUTION, ZANZIBAR ....................................................... RESPONDENT (An Application to Restore the Dismissed Criminal Appeal NO. 114 of 2007 of the Court of Appeal of Tanzania, Held at Zanzibar) {Msoffe, J.A) dated the 7 th day of December, 2009 in I - / Criminal Appeal No. 114 of 2007 RULING OF THE COURT 18th & 26 th November, 2010 MUNUO, J.A: The applicant, Salum Jenga Simba, seeks the restoration of Criminal Appeal No. 114 of 2007 which was dismissed by the Court on the ground that it was time barred. Subsequently, the applicant applied for enlargement of time in ZNZ Criminal Application No. 01 of 2009. A single judge, Msoffe, JA struck out the application on the ground that it was misconceived. The single judge observed and we quote; "With respect, as correctly submitted by Mr. Ramadhani Alli Nassib assisted by Mr. Mgeni Jailani Jecha and Mrs. Raya Mselem, learned State Attorneys, the application is misconceived. Technically, once the appeal was dismissed there can never be a memorandum of appeal to support it even if time to lodge the memorandum were to be extended. As it is, the remedy open to the applicant was to resort to the same provision, i.e. Rule 65 (5) and seek restoration of the hitherto dismissed appeal under the sub-rule- ''if he can show sufficient cause may apply to the Court to restore it for hearing." 2 The applicant had been charged and convicted on 4th September, 2006 in Criminal Case No. 16 of 2006 in the Regional Court at Vuga, Zanzibar, before George Kazi, RM Extended Jurisdiction. Upon being convicted of being in unlawful possession of drugs c/s 15 (a) of the Drugs and Prevention of Illicit Traffic Act, No. 16 of 2003 of the Laws of Zanzibar, he was sentenced to imprisonment for 20 years or pay Tshillings 10,000,000/= fine. He could not pay the fine so he has since been serving the imprisonment term of twenty years. Aggrieved, he filed Criminal Appeal No. 114 of 2007 which was prosecuted by Mr. Mbwezeleni and Mnkonje, learned advocates. The appeal was, however, dismissed by the Court because it was filed out of time. Thereafter, the applicant sought enlargement of time in Criminal Application No. 01 of 2009 which the single judge struck out, advising the applicant to apply for restoration of Criminal Appeal No. 114 of 2007. Hence the present application. The. applicant appeared in person. He deponed to an affidavit in support of the application. At paragraphs 6 and 7 of his affidavit, the applicant stated that he delayed to file Criminal Appeal No. 114 of 2007 3 because being a prisoner he had no legal aid and the responsible prison officer was not available to process his appeal within time. The issue before us is whether there is sufficient ground for restoring the appeal. Rule 65 (5) of the Court of Appeal Rules, 1979 under which the application was filed, has ceased to operate because Rule 129 of the Tanzania .Court of Appeal Rules, 2009 repealed the Court Rules, 1979. Rule 65 is now Rule 72 of the Court Rules, 2009. Restoration of dismissed appeals is provided for under the provisions of Rule 72 (5) of the Tanzania Court of Appeal Rules, 2009 which states, inter - alia: "72. (5) if no memorandum of appeal is lodged within the prescribed time, the Court may dismiss the appeal or may direct that it be set down for hearing, but where an appeal is dismissed under this sub - rule, the appellant, if he shows sufficient 4 cause may apply to the Court to restore it for hearing." The respondent Director of Public Prosecutions was represented by Mr. Ramadhani Alli Nassib and Rashida Ahmed Suleiman, learned State Attorneys. Mr. Nassib opposed the application for want of sufficient ground to allow restoration. He referred us to the appeal sought to be restored wherein, the Court noted at page 3 of the Ruling that the appellant, now the applicant, did not file any affidavit from the prison officer to explain the delay in filing the memorandum of appeal within the statutory period of limitation upon receipt of the record of the High Court as required under the provisions of Rule 72 (i) of the Court Rules, 2009 which state: "72 (1) The appellant shall within twenty one days after service on him of the record of appeal, lodge eight copies of the memorandum of appeal, with the Registrar or with the deputy registrar at the place where the appeal is to be heard. " 5 Under the since repealed Court Rules, 1979, the appellant had to file the memorandum of appeal within sixty days which he failed to do. Thence, Criminal Appeal No. 114 of 2007 was dismissed for being time barred. The appellant alleges in his affidavit that being a prisoner he had no legal assistance for processing and lodging his appeal timeously and that the . prison officer was not available to assist him. As rightly observed by the learned State Attorney, the applicant was in Criminal Appeal No. 114 of 2007 represented by Mbwezeleni and Mnkonje, learned advocates. Under the circumstances, we find no ground, let alone sufficient ground for restoring Criminal Appeal No. 114 of 2007. We accordingly dismiss the application for it is devoid of merit. DATED at ZANZIBAR this 26th day of November, 2010 E. N.MUNUO JUSTICE OF APPEAL 6 E. A. KILEO JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL I certify that this is a rue copy of the original. M. EPU COURT OF APPE 7