IN THE COURT OF APPEAL OF
AT
DAR ES SALAAM
(CORAM:
MUNUO, J.A., KAJI, J.A., and KIMARO, J.A.)
CRIMINAL APPEAL NO. 223 OF 2006
IBRAHIM MAKATA………………..………………………APPELLANT
VERSUS
THE REPUBLIC…………….……………………………RESPONDENT
(Appeal from the decision of the High Court
Of Tanzania
at Dar es Salaam
(Mlay, J.)
dated 16th August, 2005
in
Misc.
Criminal Application No. 70 of 2004
...........
JUDGMENT
OF THE COURT
14 March & 10 April,
2008
KIMARO, J.A.
The appellant was among six other
accused persons who were charged in Criminal Case No. 29 of 2001 with the
offence of armed robbery contrary to sections 285 and 286 of the Penal Code at
the District Court of Morogoro. All the
accused persons, except one Charles Masinga @ Laban who was charged as the
first accused and died before the judgment was delivered, were convicted. Save for the appellant who did not appeal to
the High Court in time, the rest of the appellants appealed against the
conviction and sentence and won the appeal.
The
appellant, after his co- accused were acquitted by High Court, started the
process of filing an appeal to the High Court by filing an application for
extension of time to appeal. His application was dismissed. Being aggrieved by the decision of the High
Court, the appellant is before the Court challenging the dismissal of his
application.
The
appellant has filed five grounds of appeal but it is only the first ground
which stands alone. In this ground the appellant’s complaint is against the
failure of the learned High Court Judge to comply with the provisions of
article 13(b) of the Constitution of the United Republic of Tanzania, 1977 that
gives a constitutional right of appeal to any person aggrieved by the decision
of the subordinate court. The rest of
the grounds can be considered jointly as the complaint is basically on the
failure of the learned High Court Judge to take into consideration the fact
that the appellant was a prisoner and hence it was not possible for him to make
an effective follow up of the process of filing the appeal.
In
the affidavit which supported his application, the appellant deposed that he
promptly filed his notice of appeal but since he was imprisoned at Ukonga
Prison at Dar es Salaam University
of Dar es Salaam
The
learned High Court Judge did not find the appellant’s reasons sufficient. He said the appellant’s wife did not file any
affidavit to support him and the appeal was unlikely to succeed. His considered
opinion was that the appellant’s application was prompted by the acquittal of
Joseph Solomon @ Natai.
In
this appeal the appellant who appeared in person opted to rely on his grounds of
appeal without additions.
Ms.
Makala the learned State Attorney who appeared for the respondent Republic
supported the appeal. She said the
learned High Court Judge erred in not granting extension of time because the conviction
of the appellant was on a grave offence.
This in itself, argued the learned State Attorney, was a sufficient
reason for granting extension of time. Relying
on the case of William Shimba Vs Republic CAT Criminal Appeal No. 10
of 1998 the learned State Attorney argued that it was wrong for the learned
judge to require the appellant’s affidavit to be supported by that of his wife
because the judge had to ensure that justice was done since the appellant gave
his notice of appeal on time. It was his imprisonment which hampered him from
making an effective follow up of the process of filing the appeal in time. Contrary to the learned judge’s finding that the
appeal had no chances of success, Ms Makala said the perusal of the record showed
that the appellant had good chances of success as his conviction was founded on
his own confession and that of the uncorroborated confession of a co-accused
which can not in law, sustain a
conviction. The learned State Attorney
also cited the case of Nasibu Rajabu
Versus Republic CAT Criminal
Appeal No. 10 0f 2003 (Mwanza ) ( Unreported) to support her submission. She
prayed that the appeal be allowed.
On
our part, we respectfully agree with the
submission of the learned State Attorney
that the learned High Court Judge erred in not granting the appellant extension
of time to file the appeal. He was in prison and he relied on his wife to make
a follow up with his advocate. If the
appeal was not filed in time because of matters beyond the control of the
appellant, we do not think that it was fair to blame him. His imprisonment restricted his movement.
In deed, the fact that the rest of the accused
persons who were jointly charged with him were acquitted on appeal was,
logically, a sufficient reason for granting him an extension of time. It is in this respect that we fail to agree
with the finding of the learned judge that the appellant’s appeal had no
chances of success. Ms Makala submitted, correctly in our view, that since the
appellant was convicted of a grave offence which carried a severe penalty of
thirty years imprisonment and the rest of his co-accused were acquitted, he had
to be given an extension of time to file his appeal.
For
the foregoing reason we allow the appeal, quash and set aside the ruling of
Mlay.J. which refused the appellant extension of time to appeal. The
appellant is given a period of two weeks from the date of the delivery of this
ruling within which to file his appeal in the High Court. It is accordingly ordered.
DATED
at DAR ES SALAAM this 8th day of April, 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
COURT
OF APPEAL
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