IN THE COURT OF APPEAL OF
AT
DAR ES SALAAM
(CORAM:
MUNUO, J.A, KAJI,J.A, And KIMARO, J.A.)
CRIMINAL APPEAL NO. 205 OF 2004
HASSANI ISLAM @
ZULU……………………….APPELLANT
VERSUS
THE
REPUBLIC………………………………….RESPONDENT
(Appeal
from the Ruling of the High
Court of Tanzania at Mtwara)
(Kaganda,
J.)
dated
24th day of July, 2004
in
Miscellaneous Criminal
Appeal No. 17 of 2003
………………
JUDGMENT OF THE COURT
4
& 17 March, 2008
KIMARO, J.A.
In the District Court of Newala
at Newala District, the appellant was charged and convicted of the offence of rape contrary to sections 130 and 131 of the
Penal Code as amended by section 5(1)(e)
and 6(1)of the Sexual Offences (Special Provisions) Act, No. 4 of 1998. He was sentenced to thirty years imprisonment. The judgment was delivered on 7th
November, 2002.
Aggrieved by the conviction and sentence, the
appellant indicated his intention to appeal to the High Court in time to the
Prison’s officer In charge of the prison where he was sent to serve the sentence. The Prison’s Officer in charge, it would
appear, acted improperly in lodging the notice of appeal. In a
subsequent application to the High Court seeking for an extension of time to
appeal, the High Court dismissed the application.
The grounds for dismissing the application
were that the court record showed that the judgment was delivered in the
presence of the appellant but he did not inform the court of his intention to
appeal. In the opinion of the learned
High Court judge, a letter which was written to the Court by the Prison Officer
on 14th November, 2002 after the appellant was interviewed and
indicated his intention to appeal could not serve as a substitute for a notice
of appeal. Moreover, the learned High
Court Judge observed the appeal had no likelihood of success.
The
appellant was aggrieved and he lodged this appeal. As the appeal was called on for the hearing,
he opted not to add anything to the grounds of appeal he filed. Unfortunately, his grounds of appeal do not
relate to the ruling of the High Court which refused him leave to appeal. Instead, they relate to the conviction and the
sentence passed by the District Court.
Mr. Michael Luena, the learned State Attorney
who represented the Republic respondent earlier on asked the Court to strike
out the appeal under rule 61(1) of the Court of Appeal Rules, 1979 as there
were no grounds of appeal. However, upon reflection, he agreed with us that the
Court has discretion to proceed with the hearing of the appeal under rule 65(5)
of the Rules without having grounds of appeal.
The
learned State Attorney supported the appeal.
Referring to paragraphs 3 and 4 of the affidavit of the appellant which
supported the application before the High Court, Mr.Luena said they contained
sufficient reasons for granting the application. As the appellant was in prison, the learned
State Attorney contended, under section 363 of the Criminal Procedure Act, it
was the Prison’s officer in charge of the prison where the appellant was
serving his sentence who had the obligation to assist the appellant in ensuring
that his notice of appeal was lodged in time.
He said the appellant could not be blamed for the delay because it was
the prison officer who failed to perform his duty and not the appellant. Commenting on the letter which the learned
judge said it could not be a substitute for a notice of appeal, the learned
State Attorney argued that under the Criminal Procedure Act, Cap. 20 R.E. 2002,
a format for a notice of appeal is not given.
What the learned judge ought to have considered was the contents of the
letter said Mr. Luena.
The
learned State Attorney submitted further that the learned judge crossed the
boundaries of the application when she held that the appeal had no chances of
success as the appeal was not yet before the court. He prayed that the appeal be allowed.
The application in the High Court was
filed under section 361 of the Criminal Procedure Act [CAP 20 R.E.2002]. Sub-
section 2 of the said section deals with extension of time. The provision reads
as follows:
361(2) “The High Court may, for good
cause
admit an appeal notwithstanding
that the period of limitation prescribed in
this
section has elapsed.” (Emphasis added)
Under
the above section the underlying factors for consideration in an application
for extension of time is good cause
for the delay. What the High Court had
to consider in determining the application was whether the affidavit filed by
the appellant to support his application gave good cause for the delay. The section does not elaborate on what
constitutes good cause but normally,
it is the circumstances which led to the delay which the court has to look into
and satisfy itself whether or not they constitute good cause. The Court in addressing the same issue, but
in relation to rule 8 of the Court of Appeal Rules, 1979 which also talks of
sufficient cause being shown for extension of time said in
Paul Martin Vs Bertha Anderson CAT Ar. Civil Application No. 7 of 2005 (Arusha Registry) (Unreported)
“The next issue for
consideration
is whether the circumstances
leading to the delay constitute
sufficient
reason…”
Similarly,
in Abdallah Salanga and 63 Others Vs
T.H.A. CAT Civil Application No.4 of 2001(Unreported) Mrosso, J.A. when
dealing with an application for extension of time stated:
“Rule 8 of the Court of Appeal Rules
requires
that an application for
extension of time give
sufficient reason. This Court in a number
of cases has accepted certain
reasons
as amounting to sufficient
reasons. But
no particular reason or reasons
have been
set out as standard sufficient reasons.
It all depends on the particular circumstances
of each application…sufficient reasons means
which convincingly explain away the delay to institute
the appeal…”
The issue before us is whether the appellant
gave good cause for the delay. The
learned State Attorney submitted correctly that the appellant deposed at
paragraph 3 of his affidavit that he indicated his intention to appeal
immediately he entered the prison on 7th November, 2002 when he was
interviewed by the Prisons Officer. As already indicated, this was the date
when the judgment was delivered. The ruling of the High Court talks of a letter
written to it on 14th November, 2002 seven days after the judgment
but it was rejected on the ground that it could not serve as a substitute for a
notice of appeal. Unfortunately the
contents of the letter are not given in the ruling and the letter was not even
made available to us for our perusal and assessment of its impact on the
application.
But all the same, the application which was
before the High Court was for an extension of time and the learned judge ought
to have focused on the factors which ought to be considered in such an
application. In our view, and with respect to the learned judge, it was misdirection
on her part to determine the application on the basis of the letter because the
appellant had recognized that there was no notice of appeal and that is why he
was before the court with that application for extension of time. The mere fact that he did not inform the
Court of his intention to appeal when the judgment was delivered did not take
away his right of appeal. He still had
time. Moreover, he was convicted and the likelihood
of becoming confused could not be ruled out.
Mr. Luena, observed, correctly in our view,
that section 361(1)(a) of the Criminal Procedure Act which deals with notices
of appeal does not give any format for a
notice of appeal and the learned judge
did not even say how a notice of appeal is expected to be. As regards the learned judge’s comments that
extension of time was also refused because the appeal was not likely to succeed,
we would take it to be a misconception on the part of the High Court. The right to appeal is not only a statutory
right but also a constitutional one under Article 13(6) (a) of the Constitution
of the United Republic of Tanzania. It
cannot be lightly denied, particularly under circumstances like in this case
where the appellant was sentenced to thirty years imprisonment and he was
diligent to express his intention to appeal to the Prison’s Officer immediately
he entered the prison. What else could
he have done? His application had merit. See William
Malaba Butabutemi Vs The Republic CAT Criminal Application no.5 of 2005
(Mwanza) (Unreported)
In our considered opinion the reason
which the appellant gave, that he indicated his intention to appeal to the
Prisons Officer when he entered the prison, was a good cause. The reason was also true. We say so because the Prisons Officer did
take action by writing a letter to the court on 14th November
2002. This was just seven days after the
judgment. Under section 361(1) (a) of
the Criminal Procedure Act, the limitation period for filing a notice of appeal
is ten days.
We take note of the fact that the
appellant was in prison. So long as he indicated his intension to appeal to the
Prisons Officer in time, any delay or an improper step taken by the Prisons
Officer could not have shifted the blame to the appellant because he did the
most he could do as a prisoner. We
appreciate that he was not in a position to make a close supervision of the
Prison’s Officer to ensure that said Officer acted rightly.
Under the circumstances we allow the
appeal, quash and set aside the ruling of the High Court which refused the
appellant extension of time. The
appellant is granted extension of fourteen days from the date of the delivery
of this judgment within which to file his memorandum of appeal. It is accordingly ordered.
DATED
at DAR ES SALAAM this 13th day
of March, 2008.
E.N.MUNUO
JUSTICE
OF APPEAL
S.N.KAJI
JUSTICE
OF APPEAL
N.P.KIMARO
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(S. M. RUMANYIKA)
DEPUTY
REGISTRAR
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