MELKIZEDEKI GABRIEL AND SHABANI BENJAMIN v REPUBLIC 1993 TLR 269 (CA)

 

MELKIZEDEKI GABRIEL AND SHABANI BENJAMIN v REPUBLIC 1993 TLR 269 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Ramadhani JJA and Lubuva JJA

CRIMINAL APPEAL NO. 117 OF 1993 G

15 November, 1993

(From the conviction of the High Court at Arusha, Munuo, J.) H

Flynote

Criminal Practice and Procedure - Appeals - Appeal against Order of the High Court -

Whether by an order of the High Court refusing leave to appeal to that Court is

appealable to the Court of Appeal on a point of law only. I

1993 TLR p270

A Criminal Practice and Procedure - Appeals - Leave of the High Court to appeal

against orders - Whether orders of the High Court appealable only with leave.

-Headnote

The appellants were jointly convicted of robbery with violence by the District Court.

Their application B to the High Court for leave to challenge both the conviction and

sentence out of time was dismissed by Munuo, J., for failure to show good cause. The

appellants were dissatisfied with that refusal and applied for leave to appeal against it.

Mroso, J., rejected their application on the ground that they raised no point of law

requiring consideration by the Court of Appeal.

C Held: (i) There is no provision in the Appellate Jurisdiction Act 1979 and the

Court of Appeal Rules which provides that in criminal cases a person aggrieved by an

order of the High Court refusing leave to appeal out of time can go to the Court of

Appeal on a point of law only;

(ii) An application for leave to appeal out of time will normally involve

matters of fact;

D (iii) The learned Judge erred in requiring the applicants to raise points of

law as a condition for granting leave to appeal; he should have looked into the

circumstances of the case as a whole;

(iv) There is no law or rule which makes an order of the High Court in

criminal cases refusing to extend time to appeal to that court appellable with leave

even though the general practice E has been that such orders are appealable with

leave.

Case Information

Application allowed. Matter is remitted to the High Court to proceed to hear the

applicants' intended appeal.

F No case referred to.

[zJDz]Judgment

Kisanga, J.A., read the following considered judgment of the Court:

G The appellants were jointly convicted by the District Court for robbery with

violence contrary to s 285 and s 286 of the Penal Code, and were each sentenced to

eight years imprisonment. They sought to appeal to the High Court against both

conviction and sentence, but as it appeared that they H were time barred, they

applied to that Court for leave to appeal out of time. Munuo J (Mrs) who consolidated

and heard the applications dismissed them because no good cause was shown for

enlarging the time. Dissatisfied with the refusal, the appellants applied for leave to

appeal against it but Mroso J who also consolidated and heard the applications refused

them on the ground that no I point of law was involved in the ruling of Munuo J

(Mrs) which required consideration by this

1993 TLR p271

KISANGA JA

Court. The present appeal arises from that decision. Although in their joint Notice of

Appeal to this A Court the appellants indicate that they are appealing against the

decision of Munuo J (Mrs), the true position is that they are appealing against the

decision of Mroso J refusing them leave to appeal to this Court against the decision of

Munuo J (Mrs). Accordingly, we treated the matter as such. B

However, after hearing the arguments, and as we were deliberating on our decision,

we realized that if Munuo J's (Mrs) order was appealable with leave, then this Court

would have concurrent powers with the High Court to grant such leave. We could

find no good reason for thinking that the power to C grant such leave is or should be

the exclusive domain of the High Court. In that case then the matter should not have

come to this Court by way of appeal from Mroso J but by way of further application

under rule 44 of the Court of Appeal Rules, and in terms of rule 55(1) of the Rules it

should have come before a single Judge. However, we feel very concerned that this

matter, as will D be demonstrated later, has suffered an inordinate delay from 1987

through no fault of the appellants, and to have it shuttled now to a single Judge would

only serve to aggravate the problem further. We are also of the settled view that even

if the matter came before any one of us singly he would, on the material before the

Court, undoubtedly grant leave to appeal. In short, we strongly feel that shuttling E

the matter for hearing before a single Judge during the next Sessions of the Court

scheduled for May next year will cause grave injustice to the appellants, having

regard to the inordinate delay they have already suffered through no fault of their

own. It is for this reason that we have decided to invoke the F provisions of rule 3(1)

of the Court of Appeal Rules and proceed to consider the matter as a further

application for leave to appeal against the order of Munuo J (Mrs).

As intimated before, Mroso J refused to grant leave because the decision of Munuo J

(Mrs) did not G involve any point of law requiring consideration by this Court. With

great respect to the learned Judge, however, we can find no support for that view.

Upon searching through the Appellate Jurisdiction Act and the Court of Appeal

Rules, we have not been able to find a provision which says that in criminal cases a

person aggrieved by an order of the High Court refusing leave to appeal to H that

Court out of time can come to this Court on a point of law only. Indeed we think that

in practice an application for leave to appeal out of time, by its very nature, will

normally involve matters of fact, such as, the date on which the applicant became

aware of the judgment or decision being ap- I

1993 TLR p272

KISANGA JA

A pealed against, the date he gave notice of his intention to appeal, the date he

applied for a copy of proceedings, etc, etc and if, in the prosecution of his appeal he

failed to do any act within the prescribed time, the reasons for such failure. Such

matters, in our view, can hardly involve points of law.

B We are therefore satisfied that the learned Judge erred in requiring the applicants

to raise points of law as a condition for granting leave to appeal. The learned Judge

should have looked into the circumstances of the case as a whole, including the facts

as deposed to in the affidavits and the way in which the application was dealt with by

the Judge who handled it, and on the basis of that decide C whether or not to grant

leave, if indeed leave was necessary. We say if leave was necessary because we have

not been able to find any law or rule which makes an order of the High Court, in

criminal cases refusing to extend time to appeal to that Court appealable with leave

even though the D general practice has been that such orders are appealable with

leave. Indeed rule 42(1) of the Court of Appeal Rules clearly implies that certain

applications in criminal cases lie to this Court with the leave of this Court but to the

best of our knowledge such applications are not specified or set out E anywhere. Be

that as it may as intimated earlier the general practice has been to treat orders of the

High Court, in criminal cases such as the present one as being appealable with leave.

And for reasons which will be apparent presently, we are certain that had Mroso J

approached the matter as outlined above he would have granted the leave sought.

F Munuo J (Mrs) found that the applicants who were convicted on 14 May 1987 did

not give the requisite notice of their intention to appeal within ten days in terms of s

361(a) of the Criminal Procedure Act. She found that the appellants gave such notice

only on 1 October 1990 when they G filed their affidavits in support of their

applications for extension of time. She found that to be an inordinate delay and upon

finding further that no good reason had been advanced for enlarging time to file

Notices of Appeal, she accordingly refused the application.

H But when the applicants came before Mroso J they stated in their respective

affidavits that upon their admission in prison in respect of this offence they

immediately notified prison authorities of their intention to appeal. Prison authorities

duly prepared the relevant notices which the applicants were made to sign on 14 May

1987. The applicants further deposed that their intention to appeal is clearly I

reflected in the prison records. No counter-affidavit was

1993 TLR p273

KISANGA JA

filed by the Republic to refute these claims and therefore there could be no valid

ground for rejecting A them.

Again the applicants' respective proposed petitions of appeal bear endorsements by

prison authorities to the effect that copy of judgment was applied for on 19 May 1987.

This tends to support B the applicants' allegation on oath that they did give notices

of appeal on 14 May 1987. For it is only reasonable to think that the applicants gave

Notices of Appeal first on 14 May 1987 as claimed and then applied for copies of

judgment on 19 May 1987 to enable them prepare the petitions of appeal.

There was, therefore, sufficient material to indicate that the applicants did give

Notices of Appeal C promptly on 14 May 1987 the very date of their conviction and

that they were very much in time. The fact that the said Notices are nowhere to be

found is neither here nor there. They may have been mislaid by prison authorities or

by the Court Registry staff. In any case the applicants have not been D contradicted

when they stated on oath that they did give the requisite Notices of Appeal in time

and that this was reflected in the prison records.

The applicants' respective proposed petitions of appeal mentioned earlier further bear

an endorsement by prison authorities that copy of judgment was received on 16

November 1990 and E the proposed petitions of appeal were submitted on 28

November 1990. Once again this was in compliance with the provisions of s 261(b) of

the Criminal Procedure Act and the proviso thereto which require an appellant to

lodge his petition of appeal within forty five days of the judgment or of the day he

received a copy of it. F

On the facts and circumstances of the case as re-appraised, we are satisfied that the

applicants' appeals are within time. The applicants need not have applied for leave to

appeal out of time in the first instance and had Mroso J properly directed himself in

the matter he would have granted the G leave sought. In the result the application is

allowed. The order of Munuo J is set aside. The matter is remitted to the High Court

with a direction to proceed to hear the applicant's intended appeals in respect of

which the said order of (Munuo J (Mrs)) was made. H

1993 TLR p274