John Ngonda vs Republic (Criminal Application No. 13 of 2024) [2025] TZCA 1187 (14 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CRIMINAL APPLICATION NO 13 OF 2024 JOHN NGONDA ................ . .............. . ....................................APPLICANT VERSUS. THE REPUBLIC............................................................... RESPONDENT (Application for Extension of time within which to lodge the application for a Review from the Judgment of the Court of Appeal of Tanzania, at Arusha) fNdika, Levira & Makunou. JJA.'l dated the 15th day of February, 2023 in Criminal Appeal No. 45 of 2020. RULING 7th & 14th November, 2025 MURUKE. J.A.: John Ngodo, the applicant, was convicted by the District Court of Kiteto at Kibaya of raping his eight year old stepdaughter. He was sentenced to a term of thirty years imprisonment. His first appeal against the conviction and sentence not only it was dismissed, but also the sentence of thirty years was enhanced to life imprisonment. Applicant second appeal before the Court was dismissed for lack of merits on 15th February 2023. i The applicant seem not to be satisfied, he has filled present application for extension of time, within which to file review, against the decision of the Court dated 15th February 2023 in Criminal Appeal No. 45 of 2020. The application is brought by way of a Notice of Motion under Rules 10, of the Tanzania Court of Appeal Rules, 2009 (the Rules) and supported by an affidavit deposed by the applicant. Upon reading the Notice of Motion applicant has raised followings grounds, One; that the delay in lodging the review challenging the judgment of the Court dated the 14th day of February 2023 was outside the applicant's ability. Two; that the decision was based on manifest errors apparent and obvious on the face of the record resulting in a miscarriage of justice. Three; that the applicant was wrongly deprivered of right to be heard hence the applicant intend to rely on Rule 66(1) (a)(b) of the Tanzania Court of Appeal Rules, 2009 as amended. The respondent neither lodged an affidavit in reply nor written submission opposing the application. The position of the law is well settled and clear that, where the respondent does not lodge an affidavit in reply despite being served, it is taken he does not dispute the contents of the applicant's affidavit. See for instance, Ultimate Security (T) Limited v. Chande Ally Lubugile and Others, [2023] TZCA 17332 TANZLII, Finn Von Wurden Petersen v. Arusha District Council [2020] TZCA 167 Tanzlii, and Yokobeti Sanga v. Yohana Sanga [2013] TZCA 2176 TANZLII in which the Court held that: ”... it is settled that where the respondent does not Lodge an affidavit in reply despite being served, it is taken that he does not dispute the contents o f the applicant's affidavit .............. Thereforethe respondent who appears at the hearing without having lodged an affidavit in reply is precluded from matters o f fact, but can challenge the application on matters o f law." At the hearing of the application, the applicant appeared in person virtually from Arusha Prison without any representation, whereas the respondent/Republic was represented by Ms Neema Mbwana, learned State Attorney, who also appeared virtually from Arusha High Court. Upon court explaining the contents of Notice of Motion, and affidavit in support thereof to the applicant and being invited to submit on his application, the applicant adopted the Notice of Motion and affidavit in support thereof. The applicant then, beseeched the Court to consider his averments in his affidavit in support of the 3 application and see that he has adduced sufficient cause to justify the delay and allow his application for interest of justice In reply, the learned State Attorney, in the first place declared his stance that he is not supporting the application, while submitting that in an extension of time application the applicant has to show good cause. In the case at hand, applicant has not adduced sufficient cause on the following reasons: one, according to paragraph 5 of the applicant affidavit judgment sought to be reviewed was delivered on 14th February, 2023 in the applicant presence. He was given a copy of the decision on 24th February, 2023 just ten days from the date of decision within 60 days required to file revision by the law. TTius there is no justification for delay. Two; applicant has not counted for days of the delays from when give copy on 24 February 2023 to when he filed this application on 21 December, 2023. Three, reason stated at paragraph 5 of his affidavit that he was not aware of the time to file review, is not sufficient cause as ignorance of law is not a defence. In totality, the learned State Attorney urged me to dismiss the application for lack of merits. In rejoinder, the applicant insisted that being in prison he was not aware of the time within which to file the review in time. In the end, the applicant requested the Court to grant his application for him to file his intended review. Having heard both sides, the issue for my determination is whether the applicant has adduced sufficient cause to warrant the Court to exercise its discretion to extend time. Pursuant to Rule 10 of the Rules, for an application of extension of time to be granted, the applicant is required to show good cause for the delay. The said Rule provides that: "The Court upon good cause shown , extend the time limited by these Ruies or by any decision o f the High Court or tribunal, for the doing o f any act authorized or required by these Ruies, whether before or after the doing o f the act; and any reference in these Ruies to any such time shall be construed as reference to that time as so extended" It is also important to underscore here that, under the above cited provisions, what the applicant is required to do is to show good cause for delay to move the Court to exercise discretion and grant the application. In exercising its discretion, of whether or not to grant extension of time the Court is required to consider the following factors which may not be exhaustive, but at the moment they include, that: 5 (a) Accounting all period o f delay; (b) Delay should not be inordinate; (c) The applicant must show diligence and not a party negligence or sloppiness o f the action that he intends to take; (d) I f the Court sees that, there are other sufficient reasons, such as existence o f point o f law o f sufficient importance such as the illegality o f the decision sought to be challenged. (see Lyamuya construction Company limited Vs Young Women Christian Organization) It is also settled position of the law that on application for extension of time, like the one at hand, will only be granted if an applicant has shown good cause by accounting for each day of the delay, (see: Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007 and Sebastian Ndaula v. Grace Rwamafa (legal personal representative of Joshua Rwamafa) Civil Application No 4 of 2014 (both unreported). Another ground on which application of this nature will be granted is on illegality in the impugned decision - see: The Principal Secretary Ministry of Defence Services v. DP. Valambhia [1992] T.L.R 185, Abubakar AM Himid v Edward Nyelusye, Civil 6 Application No. 51 of 2007 (unreported), Kaluga and Company Advocates v. National Bank of Commerce [2006] T.L.R. 235, for instance, the Court had the view that where a point of law at issue is the illegality of the impugned decision, that is of sufficient importance, it constitute good cause for extending time. According to applicant's affidavit the reason for delay is at paragraph 5, for clarity same is hereby reproduced below:- " That,'f sfter the judgment was delivered o 14 day o f Februaryb,2023 in my precence in Court, a copy o f it was given to me on the 24 day o f February 2023, through the admission office o f the prison ; but I failed to make an application for review on time , because I was not aware on when the application supposed to be submitted on time, and thus why I was discovered that my application was out o f time." The above paragraph explain reasons of the delay. In my opinion and in the eyes of the law the reasons are not sufficient on the following reasons: First, applicant did not give any explanation on what step he took after the date of the decision 14th February, 2023 until supplied with a copy of the judgment of Court on 24 February, 2023. It was expected applicant to have even written a letter to remind the registrar to be supplied with a copy of the judgment. The copy of the letter could have been attached in the affidavit in support of the Notice of Motion. To the contrary, there is nothing in the affidavit to suggest the same. Second, the applicant, has completely failed to account from when supplied with the copy of the judgment on 24 February, 2023 to the date of filling this application on 21 December 2023 a period of almost 9 months. Third, there is no dispute that applicant is a prisoner as he has said he received the copy of the decision through prison admission office, on 24 February, 2023 just 10 days after the judgment, however there is no any affidavit of admission officer to prove the averments. Fourth it is worth insisting that application for review before the Court, is guided by Rule 66 (1) (a) to (e) of the Court of Appeal Rules, 2009 that provide as follows: The Court may review its Judgment or order, but no application for review shall be entertained except on the following grounds: a. The decision was based on manifest error on the face o f the record resulting in the miscarriage o fjustice. b. A party was wrongly deprived o f an opportunity to be heard; c. The court's decision is a nullity; or d. The court had no jurisdiction to entertain the case; e. The judgment was procured illegally, or by fraud or perjury. The principal that in an application for review the applicant must show the grounds/reasons for the intended review as per rule 66 (1) (a) to (e) of the Rules, was insisted in the cases of Pantaleo Teresphory v. Republic, TZCA 514; Deogratious Nicholaus @ Jeshi v. Republic, [2015] TZCA 289; Sospeter @ Mabomba v. Republic, [2023] TZCA 17808; Nicholaus Mgonja @ Makaa v. Republic, [2024] TZCA 279 and Boniface Alistedes v. Republic, [2022] TZCA 56 [all TANZLII]. In the case at hand applicant has raised issue of manifest error in the decision to be challenged on review in the notice of Motion. What constitute manifest error in the face of record was discussed by the Court in the case of Nguza Vikings® Babu Seya& another v. R., Criminal Application No 5 of 2010 (unreported) in the which the Court relied on its earlier decisions of Chandrakant Joshubhai Patel v. R. [2004] TLR 21 and Tanganyika Land Argency Limited and 7others v. Monogar Lai Aggarwal, Civil Application No 17 of 2008 (unreported) to observe that: "There is no dispute as to what constitutes a manifest error apparent on the face o f the record. It has to be such an error that is an obvious and patent mistake and not something 9 which can be established by a long-drawn process o f reasoning on points which there may conceivably be two opinions, [see Chandrakant Pate / and Tanganyika Land Agency Limited (supra). On the other hand, there is a "miscarriage o f justice" if the error leads to a grossly unfair outcome in a judicial proceeding, as when a defendant is Convicted despite a lack o f evidence on an essential element o f Crime Reverting to the case at hand complaint by the applicant is that Court did not consider his ground of appeal. With respect to the applicant, same is not apparent on the face of record on the authority of case of Nguza Vikings @ Babu Seya (supra). Fifth, more seriously, applicant has raised an issue of not knowing time within which to file review as ground for extension of time. It is settled legal principal that a person who is unaware of a law may not escape liability for violating the law merely by being unaware of its content. One cannot defend actions by claiming that he did not know they were illegal, even if he did not realize it. There are several decision of the Court just to mention few. In the case of Wambele Mtumwa Shahame vs Mohamed Hamis, Civil Reference No. 8 of 2016 [2018] TZCA 39 (unreported) the Court held that:- 10 "It is trite iaw that ignorance o f law is not an excuse and hence cannot stand as good cause for delay." The same Principal was also stated in the case of Hadija Adamu vs Godbles Tumba, Civil Application No. 14 of 2013, (unreported) where the Court held that:- "As regards the applicant's apparent ignorance o f the law and its attendant rules o f procedure, I wish to briefly observe that such ignorance has never been accepted as sufficient reason or good cause for extension o f time." Equally so, in Ngao Godwin Losero Vs Julius Mwarabu, Civil Application No. 10 of 2015 TZCA 302 when the issue of negligence on procedures arose, Court held that: " When all is said with respect to the guiding Principals, I will right away reject the explanation o f ignorance o f the legal for delay. As has been held times out o f number, ignorance o f the law has never featured as a good cause for an extension o f time .... To say the least, a diligent and prudent party who is not properly seized o f the applicable procedure will always ask to be appraised, for otherwise, ii they will have nothing to offer as an excuse for sloppiness" Failure by the applicant to account days of the delay, coupled with the position that ignorance of the law can not be regarded as sufficient cause, I proceed to dismiss the application for lack of sufficient cause. It is so ordered. DATED at DODOMA this 14th day of November, 2025. Z. G. MURUKE JUSTICE OF APPEAL Ruling delivered virtually this 14th day of November, 2025 in the presence of the Applicant in person from Arusha Prison, Ms. Neema Mbwana, learned Senior State Attorney for the Respondent/Republic from Arusha and Ms. Rehema Makakala, Court clerk, is hereby certified as a true copy of the original. 12