Haining and Three Others v. R. E. A. C. A. Crim. App. 5-D-71; 5/7/71; Lutta J. A.

Haining and Three Others v. R. E. A. C. A. Crim. App. 5-D-71; 5/7/71; Lutta J. A.

            The applicants had been convicted on their own pleas of guilt and sentenced to varying terms of imprisonment on 30^th March 1971. They applied for leave to an appeal against sentence which was granted because the Republic had no objection. When the appeal came up for hearing it was struck out as incompetent as leave to appeal had not been granted by the Court of Appeal. The applicants then formally applied for leave to appeal against sentences and for leave to appeal out of time – arguing that the delay had been occasioned by the belief of the advocates who appeared at the trial that leave of the High Court was sufficient and that this should not prejudice the applicants’ case. The Republic on the other hand referred to s. 17 of the Appellate Jurisdiction Ordinance 1961 (cap. 451) and submitted that the applicants should have applied for leave to appeal it, they should then apply for leave to appeal against sentence.

                        Held: (1) “Section 8 of the Appellate Jurisdiction Ordinance 1961 deals with appeals in criminal cases. The power to grant leave to appeal against sentence is clearly conferred on the Court of Appeal alone under subsection 1(b) (iii) of this section. Section 17 does not confer on the High Court such power ………..” (2) Under section 10 of the Appellate Jurisdiction Ordinance 1961, the Court of Appeal Rules are made applicable in Tanzania and under rule 9 of the Eastern African Court of Appeal Rules 1954 the Court has power for “sufficient reason” to extend time for making any application. Under rule 29(2) leave to appeal in respect of a case where the sentence of death has not been passed must be made formally as provided under rule 19 and “shall be so made as nearly as practicable at the time of filing the notice of appeal.” An application under rule 19 is by motion and is first made to a single judge of this Court or to a judge of the High Court who, virtuti officii, is an ex offico member of the Court.” The High Court should not have granted leave without a formal application being sides thought it proper. (2) The error by the learned advocates is a sufficient reason for granting leave to file notice of appeal out of time. (3) Leave to file notice out of time and leave to appeal against sentence granted.