SHABAN OMARY KIDORIMA VS REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI DC CRIMINAL APPEAL NO. 15332 OF 2024 (Originating from Economic Case No. 11 of 2022 of Same District Court at Same) SHABAN OMARY @ KIDORIMA…………………………. APPELLANT VERSUS REPUBLIC ………………………………………….......... RESPONDENT RULING 21/10/2024 & 22/11/2024 SIMFUKWE, J. The appellant, Shaban Omary @ Kidorima, was arraigned before the District Court of Same (the trial court) on two charges: 1st count unlawful possession of government trophies, contrary to sections 86(1) and (2)(b) of the Wildlife Conservation Act, Cap 283 R.E. 2022, read together with paragraph 14 of the First Schedule to, and sections 57(1) and 60(2) of the Economic and Organized Crimes Control 1 Act [Cap 200 R.E. 2019]. 2nd Count: unlawful dealing in trophies, contrary to section 84(1) of the Wildlife Conservation Act, No. 5 of 2009, read together with paragraph 14 of the First Schedule to, and sections 57(1) and 60(2) of the Economic and Organized Crimes Control Act (supra). After a full trial, the trial court was convinced that the prosecution had proved its case beyond reasonable doubt. Consequently, the court convicted the appellant and sentenced him to pay a fine of TZS 340,710,000 on each count or, in default, to serve a term of 20 years' imprisonment for each count. The terms of imprisonment were ordered to run concurrently. Aggrieved by the trial court's decision, the appellant filed the instant appeal on six grounds of appeal. However, before the appeal could be heard on merit, the respondent's learned State Attorney raised a preliminary objection on point of law to the effect that: The appeal is incompetent before this Honorable Court as the Court has no jurisdiction to entertain the matter. 2 At the hearing of the preliminary objection, the appellant was not represented, while the respondent was represented by Ms. Ruth E. Kamola, learned State Attorney. Supporting the preliminary objection, Ms. Ruth contended that the appeal before this court is incompetent as it was filed out of time, contrary to section 361(1)(b) of the Criminal Procedure Act [Cap 20 R.E. 2022]. She explained that the appellant was convicted on 24th July 2023 and filed a notice of appeal on 27th July 2023. The appellant received copies of the judgment and proceedings on 18th December 2023 but filed his appeal six months later, on 5th June 2024, which is beyond the prescribed time of 45 days. Ms. Ruth submitted that, according to section 361(1)(b) of the Criminal Procedure Act (supra) it is a mandatory requirement for the appellant to file his appeal within time prescribed by law. Failure to do so required the appellant to file an application for extension of time to file the appeal. Instead, the appellant proceeded to file the appeal directly, contrary to the legal requirement, regardless of any reasons he may have. The learned State Attorney prayed that the appeal be struck out. 3 In reply, the appellant submitted that after being convicted, the court furnished him with copies of the judgment and proceedings on 18th December 2023. Upon receiving the said copies, he prepared a petition of appeal and handed it to the Prison Administration for filing in this court. However, the Prison Officer informed him that the Judiciary of Tanzania had recently introduced a Case Management System which experienced system errors that delayed the registration of his appeal. The appellant narrated further that the Prison Officials made efforts to ensure his appeal was registered, including consulting the Deputy Registrar of the High Court of Moshi in vain. Eventually, the system became stable, and his appeal was duly registered as Criminal Appeal No. 15332 of 2024. He stated that, despite the respondent being aware of the challenges of the judiciary system which also affected many others, still they raised the preliminary objection, claiming the appeal was time- barred. The appellant contended that it is unreasonable for him to bear the consequences of the delay since he was neither responsible nor liable for the circumstances that caused his appeal to be filed out of time. In conclusion, the appellant urged the court to disregard the preliminary objection by overruling it and proceed with the hearing of the appeal. 4 Having considered the rival submissions, the issue for determination before this court is whether the preliminary objection has merit. The law is very clear that the appeal which emanates from the subordinate courts to the High Court should be filed within forty-five days from the date of the impugned decision. This is pursuant to section 361(1)(b) of the Criminal Procedure Act (supra). In our case, it is undisputed fact that the appeal before this court was filed beyond the prescribed 45 days’ time limit. The impugned decision was delivered on 24th July, 2023, while the instant appeal was lodged on 05th June 2024, which is beyond the prescribed time of 45 days provided by the law. The appellant narrated that the reason for filing the appeal out of time was due to errors in the Judiciary's Electronic Case Management System (ECMS), which prevented him from filing the appeal within the prescribed time. The advanced reason may seem plausible and reasonable; however, this court is of the view that such the advanced reason is misplaced. As rightly submitted by Ms. Ruth, learned State Attorney for the respondent, the appellant was required to file an application for extension of time upon realizing that he was out of time. It is in such an application for extension 5 of time that the appellant could have advanced his reasons for the delay in filing the appeal. It is trite law that once a time limitation has been raised and established, it bars the court from entertaining the matter, as it ousts the jurisdiction of the court. The principle was emphasized by the Court of Appeal in the case of Juma Lupoli Charles Ngobetse (Civil Appeal No.487 of 2022) [2023] TZCA 17323 (8 June 2023) Tanzlii at page 6 that: “It should be emphasized that lodging an appeal before any court within the period of limitation prescribed by the law is imperative because the issue of limitation goes to the root of the jurisdiction of the court.” Thus, since it is undisputed fact that the instant appeal was filed beyond the prescribed time, the jurisdiction of this court to entertain the appeal ceased regardless of good reasons which have been advanced by the appellant. In the case of John Cornel v A. Grevo (T) Limited, Civil Case No 70 of 1998, (HC) at Dar es salaam (unreported) the court held that: 6 “... the law of limitation is on actions knows no sympathy or equity. It is a merciless sword that cuts across and deep into all those who get caught by its web." From the foregoing, it is evident that this appeal is incompetent before this Court. Consequently, the preliminary objection is upheld, and the appeal is hereby struck out. It is so ordered. Dated and delivered at Moshi this 22nd day of November 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 22/11/2024 7