Matheo Paulo and Another vs Republic (Criminal Appeal No. 398 of 2016) [2019] TZCA 716 (1 November 2019)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: MUGASHA, J.A., LILA, J.A And NDIKA, J.A.) CRIMINAL APPEAL NO. 398 & 400 OF 2016

1. MATHEO PAULO
2. MAIGE MABALA @ HUSSEIN ..................................................APPELLANTS VERSUS THE R-EPUBLIC .. -. ..........•....................................•........•.......... RESPONDENT {Appeal from the decision of the High Court of Tanzania at Tabora) {Mallaba, J.) dated the 11 th day of October, 2016 in Criminal Application No. 145 of 2016 · JUDGMENT OF THE COURT 30 th October & ...... , 2019 LILA, l.A.: The appellants, Matheo Paulo and Maige Mabala @ Hussein, (1 st and 2 nd appellants respectively were aggrieved by dismissal of their application for extension of time by the High Court (Mallaba, J.). In that application they were seeking for enlargement of time within which to appeal to the · High Court against conviction and sentence meted on them by the Resident Magistrates Court of Tabora at Tabora in which they were convicted and 1

sentenced to serve thirty (30) years imprisonment. They have preferred the present appeal to the Court. Having been aggrieved by the High Court decision, they preferred the present appeal each bringing to the fore four grounds of appeal comprised of both points of law and facts. The two memoranda of appeal raise the following common points of grievance which can be paraphrased thus:-

1. That the learned Judge erred in law for holding that filing of a notice of appeal is a prerequisite condition for the grant of extension of time sought.
2. That the delay was not inordinate.
3. That there was an illegality in the judgment sought to be impugned which warranted the grant of extension of time as there was no conviction entered and there was misapprehension of the nature and quality of evidence.
4. The decomposition of the judgment was done after dismissal of the application for extension of time. A brief background of the facts from which this matter arose is short and straight forward. It goes thus: The appellants were arraigned before the Resident Magistrates Court of Tabora charged with the offence· of armed robbery contrary to section 287A of the Penal Code Cap. 16 R. E. 2

). 2002. They were convicted and each sentenced to serve thirty (30) years imprisonment. Aggrieved, they wished to appeal against that decision but they found themselves late to lodge both the notices and petitions of appeal to the High Court. Consequently, by way of a chamber summonses supported by their respective affidavits which were identical in both form, . contents and substance, they filed separate applications, in the High Court applying for extension of time to lodge both the notices of appeal and petitions of appeal. Satisfied that no good cause was shown, the learned Judge (Mallaba, J.), dismissed the application. At the hearing of the appeal before us the appellants appeared in person and were without legal representation whereas the respondent Republic had the services of Mr. Miraji Kajiru, learned State Attorney. After they had adopted their respective memoranda of appeal, the appellants let the learned State Attorney argue the appeal first before they could rejoin in case they find necessary. In no uncertain terms, Mr. Kajiru supported the High Court decision · to refuse to grant extension of time to the appellants~ Arguing on the grounds of appeal generally, he said that there was no reason for the delay 3

that was advanced by the appellants in both the chamber summons and .·· the supporting affidavit. Arguing further, he said lodging the notice of appeal did not require the appellants to be served with the proceedings and judgment of the trial Court. For that reason he said the Judge was proper to refuse them extension of time because no good cause was shown. He accordingly urged the Court to dismiss the appeal. When we asked to address us on the existence of the recomposed judgment after the former one on which the appellants were fou11d guilty and sentenced as above, he was of the view that the Judge was not aware of it when he determined the application otherwise he would have not dismissed the application but granted it so that the illegality could be addressed by the High Court. As a way forward, he urged the Court to ·. grant the appellant time within which to lodge the notices of appeal and thereafter lodge the petitions of appeal. On their part, both appellants agreed with the learned State· Attorney and urged the Court to accord them with an opportunity for their appeal be heard and determined by the High Court. 4

The record bears that the instant appeal emanates from the ruling of ·• . . :: the High Court dated 11/7/2016 in a consolidated Misc. Cr. Application No .. 145 and 144 of 2016 which were instituted y the appellants. In order to appreciate the essence of the refusal, we find it compelling to reproduce in detail the contents of both the chamber summons and· a supporting affidavit which were lodged in the High Court:- "CHAMBER SUMMONS (Made Under Section 361 (2) of The Criminal Procedure Cap. 20. R. E 2002) Let all parties concerned appear before Hon. Judge in · chambers on efh day of July 2016 at B:30 o'clock. in the morning or• soon thereafter when the applicants application shallbe heard in order's that:-

1. That, this Honourable High Court be pleased to grant an extension to which to lodge petition of appeal plus with Notice of intention to Appeal out. of the mandatory period. 2 .. That, any other legal remedy that the court may deem fit Just to grant and equitable be provable. This Chamber Summons is supported by an affidavit of the applicant sworn on APPELLANT the ·other argument to be add at the hearing in supporting thereof. 5

Given under my hand and the seal of the Court this 3dh day of June 2016. ··~~··········································· DEPUTY REGISTRAR HIGH COURT {T} AT TABORA" '~FFIDAVIT 1 ✓ MA/GE S/0 MABALA @ HUSSEIN a Tanzania, male, adult 31 years old of Islamic faith. Do hereby takes oath and categorically state as following inter-alia:-

1. That, I am applicant to this instant application and the intended appellant in the above mentioned criminal case. Hence conversant with what I am dully adducing here below.
2. That, I am dissatisfied with the decision of the trial District Court of Tabora at Tabora for conviction and sentence of thirty (30) years in goal imposed on me in the offence of Armed Robbery contrary to section 287 . ''.A" of the penal code Cap. 16 R. E 2002. Having regard to the case weight and the law applicable,
3. That, the reasons attributed to my appeal delayment was due to the District Court for failure to supply my copy of Judgment within time hence caused this delay. 6

.\ 4. That, I humbly pray that this application be granted and allow me to lodge petition of appeal out of time since the cause of delay was out of my control my Lord " Two things are apparent from the quoted chamber summons and the supporting affidavit. Firstly; that the appellants were applying for · extension of time to lodge notices and petitions of appeal out of time. Secondly; that the reason for the delay was failure by the trial court to .. avail them with copies of judgment within time. When the application was called on for hearing before the High Court ·· on 04/07/2016, both appellants were in attendance but with no legal representation while the respondent Republic was represented by Miss Gladness Senya, learned State Attorney. In exercising their right to elaborate their grounds for the application, · both appellants intimated to the court that they had nothing to add to what · they averred in their chamber summons and the supporting affidavit. Miss.· Senya, on her part, did not resist the application. She expressed her sympathy with the appellants and was not hesitant to state thatthe delay in filing both notice and petition of appeal wascaused by the delay in being · served with copy of judgment hence they are not to blame. Then ·the 7

learned Judge adjourned the case a date the ruling would be rendered. Came the 11/7/2016, the ruling was delivered which dismissed the . applicant's application. The appellant was aggrieved hence the present appeal. The High court dismissed the appellants' application for extension of time. In doing so the learned Judge stated:- "According to the two affidavits, which are quite similar, the applicants were convicted and sentenced to thirty {30} years imprisonment for the offence of armed robbery c/s 287 A of the Penal Code. The affidavits are silent as to the date on which they were convicted and sentenced. They are also silent as to whether. the two applicants filed their respective notices of appeal and if so, when. They are now applying for extension of time within which to file Notice of Appeal and also extension of time within which to lodge their Petition of Appeal. The only reason given by both appellants for the delay in filing the appeal is because ofthe delay by the District Court of Tabora to supply the copy of Judgment. In order for this Court to come to a conclusion that indeed the applicants applied for copies of judgment and probably proceedings, the applicants ought to specifically indicate that they gave their notice of intention to appeal within 8

time. As such, it would have been expected that the applicants should have indicated the date on which the judgment of the District Court was delivered and also the date on which they gave their notice of intention to appeal. In the present application, the applicants have not indicated those important dates. Further, the applicants are applying for extension of time to file their respective notices of Appeal. This means that they did not lodge any notice of appeal within the time of 10 days as required by section 361 (1) {a) of the Criminal · Procedure Act {Cap. 20 R. E. 2002). No reason whatsoever has · been given for any way dependent on getting copy of the judgment, the applicants cannot be said to have taken all the steps in their Court cannot be said to have delayed providing the necessary copy of judgment. In all, no sufficient grounds has been given for the applicant's delay in appealing. In the circumstances, the applicant's application is dismissed." (Emphasis added) 9

Objectively and carefully examined it will be clear that the reasoning and finding of the learned Judge was faulty. It is vivid that the Judge strayed into error to treat that filing of a notice of appeal, as rightly complained by the appellants in ground one of appeal, is an imperative and a condition precedent to the filing of an application for extension of time. Since the appellants (then applicants) were seeking for enlargement of time to file notices of appeal it meant that they had not filed the same, for, · had they done so that application would be a misconceived one. They were actually asking for court's permission to lodge them. With respect, that was misdirection on the part of the Judge. In that respect we agree with the appellants' complaint and we hold that it is meritorious ... For that reason the . Judge's decision cannot be left to stand. However, the foregoing finding would not by itself entitle the applicant a grant of extension of time. We shall demonstrate. As we have indicated above, the appellants are seeking an order enlarging the time within which to appeal to the High Court against the decision of the Resident Magistrates Court of Tabora in Criminal Case No.109 of 2015 delivered on 8/4/2016. As was rightly stated by the learned Judge the appellants were, in terms of section 361(1)(a) of the Criminal Procedure 10

Act Cap 20 R.E. 2002 (the CPA), required to give notice of intention. to •. ·. appeal within ten (10) days from the date of finding, sentence or order and · also, in terms of section 361(1)(b) of the CPA, to file an appeal (petition of appeal) within forty five (45} days from the date they are served with the · proceedings, judgment or order sought to be impugned. It can be inferred from those provisions, on the one hand, that it is the filing of an appeal (petition of appeal) which should be preceded by the intending appellant being served with a copy of the proceedings and judgment. That isJor an obvious reason that grounds of appeal are extracted from those _ documents. On the other hand, it imposes a duty on the intended. appellant to immediately upon being convicted and sentenced to show· his intention ·· to challenge that decision by lodging a notice of intention to appeal not·· necessarily after going through the proceedings or judgment. Preparation and filing of a notice of appeal require no any document from the court. It can also be deduced there from that, for an intending appellant who could not lodge those documents within time, he is obliged to take some necessary steps before doing so. It is trite law that any person who fails to make it within time and is · desirous to pursue his right of appeal out of time has, as the appellants 11

•- did, to apply for enlargement of time. In doing so the applicant is only concerned with showing good cause or sometimes referred to as sufficient cause why he should be given such or extension or that he should furnish the court with the reasons for the delay. That ·position was well elaborated_ by the erstwhile Court of Appeal for East Africa in the case of Shanti v Hindocha & Others [1973] E.A. 207: " the most persuasive reason that he can showi.. is that - the delay has not been contributed by dilatory conduct on his part. But there may be other reasons and these are all matters of degree. " In view of the above exposition of the law, an application for extension of time will not be meritorious unless the applicant has, either explicitly or implicitly, disclosed in the application by affidavit evidence good or sufficient cause for the delay .. With the above considerations in mind, we have found · ourselves constrained to hold that the appellants' application for extension of time before the High Court was wanting in merit for lacking good· cause of delay. As demonstrated above, it does not require one to have court proceedings or judgment to prepare and lodge a notice of appeal. Since 12

. . ... that was the only reason advanced by the appellants we are not hesitant to hold, as we hereby do, that the appellants totally failed to show good reason for the delay which would have warranted a properly directed court to exercise its discretion and grant the application. We; therefore, find no good cause to differ with the view taken by Mr. Kajiru that, based on the notice of motion and affidavit evidence that was placed before the High Court, the reason for delay advanced by the appellants was devoid of merit. Ordinarily we would have dismissed the appeal, but we refrain from doing on account of the anomaly raised by appellants soon to be apparent which may result into a differentcourse being taken. Admittedly, the appellants' complaint in ground 4 raised the attention of the Court and therefore prompted us to carefully peruse and examine the record of appeal. We, indeed realized that apart from the trial court judgment dated 8/4/2016 which culminated in the appellants' incarceration in prison for thirty (30) years, there is yet another judgment by the same magistrate termed "RE-COMPOSED JUDGMENT" dated 21/3/2018 .. As was the case with the former judgment, the appellants were in attendance when the re-composed judgment was rendered. In justifying the course he had taken, the learned trial magistrate indicated that:- 13

"Hon. Justice Utamwa, J. in passing through the proceedings of the trial court and Judgment passed thereto, discovered that the trial court passed the sentence without convicting the accused persons. " We had the opportunity of perusing the whole record which, ·· unfortunately, we have found to belie the trial magistrate. That serious implication of the Judge is not supported by the record for; we could not come across the judge's direction to that effect. With respect, we are able to see and appreciate the force of the appellants' complaint. Suffice it to say, without deciding, that it is settled law that after a trial magistrate has rendered his decision he becomes functus officio the record (see Tanzania Telecommunications Co. Ltd and Two Others v TRI· Telecommunications Tanzania Ltd, Civil Revision No. 62 of 2006). Arraignment of the appellants for the second time and before the same magistrate on the same matter (judgment) after a period close to two. years for entering the purported conviction in the absence of a judicial . order by a superior court in a purported re-composed judgment definitely prejudiced them such that they could not know their exact date·. of conviction and sentence. 14

It is for the above fundamental reason that we asked, the learned State Attorney to address us on whether had the above infraction been committed and brought to the attention of the Judge prior to his delivery of• . · the impugned ruling, he would have still not granted extension of time. Mr. Kajiru irresistibly an unequivocally pointed out that that was a ser·ious illegality which would have warranted the grant of extension .of time so as to allow the illegality be addressed by the High Court. As a remedy, he proposed that we grant extension of time to the appellants. We are alive that, in terms of Rule 47 of the Tanzania Court of Appeal Rules, 2009 (the Rules), the Court and the High Court have concurrent powers to grant extension of time but that power is limited to·· applications for enlargement of time to appeal from the High Court or the subordinate court exercising extended powers to the Court only. The Court .. is also vested with discretionary powers, in Criminal cases, to extend time even where no such application was made to the High Court. Much as we· appreciate and cherish that stance, we are convinced that this Court is endowed with inherent powers, in the rarest of cases and in exceptional . circumstances to grant extension of time so as correct a manifest wrong or · illegality for the purpose of furthering the interest of justice. In the present 15

,_ case, the appellants' application for extension of time was dismissed by the · High Court to which their resort is therefore completely shut out. More so, even if afforded that opportunity their application is unmerited for, our examination of the chamber summons revealed that no good reason was advanced by the applicant for the grant of extension. But, of significance, the illegality still obtains in the record which cannot be rectified and remedied unless the appellants are given a chance to appear before the High Court. We are mindful of the Court's observation in the case of Elia Underson v Republic, Criminal Application No. 2 of 2013 (unreported) that:- ''Among the ''other reasons" contemplated in the Shanti case (supra) is the issue of "illegality of the decision being challenged'~ This, as held in the case of Principal · Secretary, Ministry of Defence and National· Service v Devram Valambia [1992] TLR. 185, can be another persuasive reason for granting an extension of time if well demonstrated by the applicant. " With the above considerations in mind, we find this to be a fit case to extend time to the appellants within which to file both notices and petitions of appeal. That said, the appellants are given ten (10) days within which to 16

: . ; :. .·' .. : "' ... : file notices of appeal and thereafter,. in terms of section 36l(t)(b)ofthe •.·· ·.·· C:PA, they have to lodge their appeal (petition of appeal) withfn forty five . .. .. .... ··• (45) days from the date of service. to them of the trial' court prbceedirigs , •. ·.··.·.·.·•· · anci"judgment. ·.··DATED at TABORA this day of November, 2019 .. ·- · . S. E. A. MUGASHA . - .... JUSTICE OF APPEAL S. A. LILA . . JUSTICE OF APPEAL- . G. A: M. NDIKA JUSTICE OF APPEAL · 17