SHIJA RULING for Tanzlii

IN THE HIGH COURT OF TANZANIA GEITA SUB-REGISTRY

AT GEITA MISCELLANEOUS CRIMINAL APPLICATION NO. 31028 OF 2024 (Original Criminal Case No. 8901 of 2024 from Geita District Court at Geita) SHIJA LUCAS---------------------------------------------------------------APPELANT

VERSUS THE REPUBLIC -------------------------------------------------------RESPONDENT

RULING Date of last Order: 14/11/2024 Date of Ruling: 28/11/2024 K. D. MHINA, J. By way of Chamber summons made under section 361 (2) of the Criminal Procedure Act, Cap 20 R: E 2022 (the CPA), the applicant, SHIJA LUCAS, is moving this Court for an order extending the time within which he can file an appeal out of time against the decision of the District Court of Geita at Geita dated 20 August 2024 in Criminal Case No. 8901 of 2024. The Chamber summons is supported by an affidavit duly affirmed by the applicant. 1|Page On the other hand, having been served with the application, the respondent filed its affidavit in reply duly sworn by Deodatha Dotto on behalf of the Republic. A brief background and sequence of events leading to the current application is as follows. In the District Court of Geita at Geita, the applicant was charged, prosecuted and convicted of incest by males contrary to section 158 of the Penal Code [Cap 16 RE 2022]. Upon his conviction, he was sentenced to serve 30 years imprisonment. Discontented with the decision of the trial District Court, the applicant wished to file an appeal against that decision; he found himself out of the prescribed time to initiate the appeal process; hence, this application. At the hearing of this application, the applicant appeared in person, unrepresented. He adopted what he averred in his affidavit without more. In his

affidavit, the applicant pleaded ignorance of law as indicated in paragraphs 1, 2 and 3, which I wish to quote; 1. That, after being convicted and sentenced, I was not given either being educated on the right to appeal from either the District Court of Geita or the Prison officers or Administration of Geita Prison when I was put in Prison custody despite being aggrieved with the 2|Page judgment of the trial Court of Geita District court hence I did not file my Petition of appeal at specific date and time according to the law.

2. That, after being educated about the right to appeal, I do hereby make this application to file my appeal and the petition of the appeal is out of time.

3. That, because I am the layman, I wasn’t in the capacity of writing grounds of appeal until when I got assistance from the Prison officer, who is a lawyer”. On the other hand, the respondent was represented by Ms. Deodatha Dotto, learned State Attorney. In her submission, Ms. Dotto resisted the application by submitting that ignorance of the law is not among the grounds for extending time. To substantiate her submission, she cited the decision of the Court of Appeal in Hamimu Hamisi Totoro @ vs Zungu Pablo & Others vs Republic (Criminal Appeal No. 121 of 2018) [2020] TZCA 38 (28 February 2020) (Tanzlii) on pages 5 and 6, where it was held that ignorance of the law is not a defence and it is not a sufficient cause in extending time. Therefore, she stated that the applicant failed to raise any sufficient cause to warrant an extension of time, as elaborated in the case of Joel 3|Page Silomba vs Republic (Criminal Application 5 of 2012) [2013] TZCA 332 (14 June 2013) (Tanzlii). Thus, she prayed for the application to be dismissed. Having considered the chamber summons and its supporting affidavit, the affidavit in reply, and the oral submission made by the learned state attorney, the issue that has to be resolved is of utmost importance: whether the applicant has shown a good cause for this Court to exercise its discretion in granting an extension of time to file an appeal, in

accordance with the established legal principles. As to what may constitute a good cause, the law provides some of the factors that may be taken into account when considering whether or not the applicant has shown good cause. The factors were stated by the Court of Appeal in a number of cases, such as the case of Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 (3 October 2011) (Tanzlii). They are: 1. " That the applicant must account for all the period of delay; 2. The delay should not be inordinate; 3. The applicant must show diligence and not apathy, negligence or sloppiness of the action that he intends to take; 4|Page 4. If the Court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance, such as the illegality of the decision sought to be challenged”. The provisions of the law in relation to the filing of a notice of appeal and petition of appeal for a party who is aggrieved by the decision of the subordinate court other than when the subordinate court is exercising its extended powers are provided by sections 359 (1) and 361 (1) of the CPA. Those provisions read as follows; “ 359 (1) Save as hereinafter provided, any person aggrieved by any finding, sentence or order made or passed by a subordinate court other than a

subordinate court exercising its extended powers by virtue of an order made under section 173 of this Act may appeal to the High Court and the subordinate court shall at the time when such finding, sentence or order is made or passed, inform that person of the period of time within which, if he wishes to appeal, he is required to give notice of his intention to appeal and to lodge his petition of appeal”. [Emphasis provided] And section 361(1) states that; 5|Page “Subject to subsection (2), an appeal from any finding, sentence or order referred to in section 359 shall not be entertained unless the appellant- (a) has given notice of his intention to appeal within ten days from the date of the finding, sentence or order or, in the case of a sentence of corporal punishment only, within three days of the date of such sentence; and (b) has lodged his petition of appeal within forty-five days from the date of the finding, sentence or order”. [Emphasis provided] The above procedures were supposed to be complied with by the applicant after being aggrieved by the trial court's decision, which was delivered on 20 August 2024. He was supposed to file his notice of intention to appeal within ten (10) days from the decision date and a petition of appeal forty-five (45) days from the decision date. However, the applicant did not do so and now approached this court, pleading ignorance of the

law as the only grounds for seeking an extension of time. On this, as rightly submitted by Ms. Dotto, ignorance of the law is not among the grounds for extending time as it is not sufficient, as per the case of Hamim Hamis Totolo @ Zungu Pablo (Supra). 6|Page The above is from the legal principle that ignorance of law excuses not (ignorantia juris non excusat), which implies that a person cannot claim to be unaware of a law and escape liability for violating it merely by being unaware of its content. The Court of Appeal in Said Ally Ismail vs Director of Public Prosecutions (Criminal Application No. 20 of 2015) [2017] TZCA 251 (12 July 2017) (Tanzlii) held that; “In my considered view, ignorance of the law has never been accepted as a sufficient reason or good cause for an extension of time”. Also, in Yusuph Masalu @ Jiduvi & Others vs Republic (Criminal Application 112 of 2019) [2021] TZCA 222 (2 June 2021), the Court of Appeal held that; “Notwithstanding that lapse, as shown above, the applicants are, in effect, pleading ignorance of law as the cause of their delay. It is a trite position that ignorance of the law does not constitute good cause”. I cited the above cases to elaborate on the plea of ignorance pleaded by the applicant, which is no excuse and cannot amount to sufficient or good cause for extending time to take a certain step. 7|Page In the current application,

the applicant has failed to account for two months and eleven days (from the date of the trial court’s decision on 20 August 2024 until the filing of this application on 31 October 2024), which, in my view, cannot just be ignored because of the defence of ignorance of the law. In the upshot, I find that the applicant has failed to disclose good cause for the Court to exercise its jurisdiction to enlarge time. Accordingly, I dismiss this application in its entirety. K. D. MHINA

JUDGE 28/11/2024 8|Page Court: Right to appeal explained. K. D. MHINA

JUDGE 28/11/2024 9|Page