REPUBLIC v YONA KAPONDA AND 9 OTHERS 1985 TLR 84 (CA)

REPUBLIC v YONA KAPONDA AND 9 OTHERS 1985 TLR 84 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Makame JA

April 27, 1985

MISCELLANEOUS ECONOMIC CRIMINAL APPLICATION 2 OF 1985 F

Flynote

Criminal Practice and Procedure - Appeals - Appeal out of time - Application for

appeal out of time - Applicant's affidavit showing no reasons - Whether proper -

Tanzania Court of Appeal Rules, 1979. G

Criminal Practice and Procedure - Appeal out of time - Issue of fundamental

importance to be argued on the intended appeal - Whether appeal should be admitted

for hearing - Economic and Organized Crime Control Act, 1984. H

-Headnote

The respondents in this application were to answer charges of offence under the

Economic and Organized Crime Control Act, 1984. They applied to the High Court

for bail and their applications were granted. At least 30 I days after the date of the

ruling of the High Court, the Republic filed notices of appeal and then filed affidavits

in support of "Applications

1985 TLR p85

MAKAME JA

for Leave to Appeal out of Time". But the affidavits contained no reasons to explain

the delay in filing the A notices of appeal.

Held: (i) Notices of appeal ought to be filed within 14 days of the High Court ruling:

Rule 61 of the Tanzania Court of Appeal Rules, 1979; as the notices here were

brought out of time, they ought to have been preceded by B appropriate applications

to appeal out of time, supported by affidavits setting out good reasons for the delays;

an affidavit which contains no reasons, as the affidavits in this application, is

improper;

(ii) in deciding whether or not to allow an application to appeal out of time,

the court has to consider C whether or not there is "sufficient reasons" not only for

the delay, but also "sufficient reasons" for extending the time during which to

entertain the appeal.

Judgment

Makame, J.A.: In this Ruling I shall deal with two applications together. They are

Misc. D Economic Criminal Application No.1/85 involving the respondent Ally Haji

Ahamed, and Application No.2/85, with Yona Kaponda and nine other persons as the

respondents. In both applications the Republic is the applicant and the background

facts are essentially the same. In both applications Mr. Saffari, Senior State Attorney,

appeared for the Applicant Republic, while Mr. Bateyunga, learned advocate,

represented the E respondents.

The eleven respondents in these two applications were alleged to have committed

offence against the Economic and Organized Crime Control Act, 1984. F

Mtenga, J., granted them bail when they applied to him and, except in the case of Ally

Haji Ahamed, the Republic did not object to the applications.

The Ruling in Ahamed's case was made on 19th December, 1984, and on 26th

January, 1985 Mr. Teemba, Senior State Attorney, purported to file a Notice of

Appeal. On the same day, he swore an affidavit in support G of and "Application for

Leave to Appeal Out of Time".

There were eight rulings involving the other ten applicants and these were delivered

on various dates, between 19th and 31st December, 1984. On 30th January, 1985 Mr.

Teemba purported to file a Notice of Appeal and on the following day he swore an

affidavit in support of an 'Application for Leave to Appeal out of Time". H

In terms of Rule 61 of the Tanzania Court of Appeal Rules, 1979, the Republic ought

to have filed a Notice of Appeal within fourteen days of each ruling by Mtenga, J.,

granting bail. The Republic did not do so, and before I they can be allowed to file

the Notices out of time they ought to make appropriate application setting out good

reasons for the delays.

1985 TLR p86

MAKAME JA

Mr. Teemba did not set out any reasons, let alone good ones. His 'Application' in

Ahamed's case is set out fully A to facilitate illustration.

"Application for Leave to Appeal Out of Time.

A f f i d a v i t B

I, AGGREY ARTHUR MRINGI TEEMBA, Senior State Attorney,

P.O. Box 970, Mbeya, do solemnly swear and state of follow: C

1. That on the 19th day of December, 1984 the Honourable Mr. Justice

Mtenga, sitting in the High Court, as an Economic Crimes Court, allowed an

Application for bail under section 35(1) of the Economic and Organised Crime

Control Act, 1984. D

2. That as he sat alone without the two lay members as provided for in

law the Court was not properly and lawfully constituted.

3. That this issue raises a point of law of great public importance. E

WHEREFORE, the Appellant prays that he be allowed to fill his appeal

notwithstanding the lapse of time. Dated at Mbeya this 26th day of JANUARY, 1985.

With respect, such an empty application is not only not serious, it sounds

discourteous to the court. F

Mr. Saffari conceded that Mr. Teemba assigned no reasons for the delay, and he

himself was not able to advance any. He merely said that the delay was only a short

one and not unreasonable. Quite obviously, G whether or not a delay is

unreasonable is only one of the factors to be taken into account; but the delay has to

be explained first. Mr. Bateyunga has objected to the applications and he pointed out

the omission I have referred to.

In deciding whether or not to extend time I have to consider whether or not there is

'sufficient reasons'. As I H understand it, 'Sufficient reasons' here does not refer

only, and is not confined, to the delay. Rather, it is 'sufficient reason' for extending

time, and for this I have to take into account also the decision intended to be appealed

against, the surrounding circumstances, and the weight and implications of the issue

or issues involved. I The respondents here were released on bail, after applying for

the same, presumably after being given the mandatory advice in accordance with

Section 29 (4) of Act 13 of 1984. They were advised

1985 TLR p87

MAKAME JA

to petition the High Court, which is probably not the same as an Economic Crimes

Court. The particular 'High A Court' referred to under Sections 3 and 4 is meant to

hear and determine cases, and Mtenga, J. felt that that did not include questions of

bail. An application for bail after a person is charged is to the Court, which I suppose

refers to the Economic Crimes Court, in which a High Court judge must sit with two

lay members. B Under section 16, decisions are by majority, which implies the

presence of the lay members, but arguably that does not dispose of Mtenga, J.'s

problem: According to Mtenga, J.'s argument, bail would be excluded because "All

questions" under section it refers only to all those questions to be decided by the

Court, and bail is not one of them. C

There are thus obviously conflicting views. The reality however, is that there are

these eleven people, and probably a lot more, who are out on bail and who the

Republic contends ought not to have been released on bail. D These people ought to

know whether or not they are legally out. Those in remand custody, and these

would, I think, be several, ought to know for sure where they should go to seek bail,

if they want to. If it is correct that lay members must be involved, and if Mr.

Bateyunga is right that to-date no lay members have been appointed, it must mean

that the system is impotent - no bail can be granted at the moment; so the authorities

under Section 5 E of the Act should be moved into action. All this would depend on

resolving the issue to be raised in the intended appeal.

In view of all the foregoing, what is involved here is certainly a matter of great public

importance, and it is proper that the Court of Appeal should decide this grave matter.

The situation is a novel one and the novelty might have F contributed to Mr.

Teemba's delay. Notwithstanding the Republic's failure to advance reasons, I find

sufficient reason for extending time within which the Republic may file Notices in

these two applications. Appropriate Notices to appeal must be filed by Friday 10th

May, 1985 and then the matter should be followed up accordingly. The application is

accordingly allowed. G

Application allowed

1985 TLR p88

A