Sayi s/o Gamaya Mwanapili vs Republic (Criminal Application No. 17/11 of 2017) [2018] TZCA 966 (27 August 2018)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA CRIMINAL APPLICATION NO. 17 /11 OF 2017 SAVI S/0 GAMAYA MWANAPILI ...................................... APPLICANT VERSUS THE REPUBLIC .......................................................... ....... RES PON DENT (An Application for leave to lodge the Application for Review out of time upon Extension of time of the Court of Appeal of Tanzania at Tabora) (Msoffe, l.A, Kimaro, l.A, and Mandia, J.A.) 24 th & 29 th August.2018 LILA, J.A. dated 28 th day of June, 2011 in Criminal Appeal No. 86 of 2010 RULING This is an application for extension of time within which the applicant may file an application for review against the judgment of the Court (Msoffe, JA, Kimaro, JA and Mandia, JA) dated 28 th day of June, 2011 in Criminal Appeal No. 86 of 2010. The application is brought under rule 10 of the Court of Appeal Rules, 2009 (the Rules) and is supported by an affidavit sworn by the applicant, Sayi Gamaya Mwanapili. 1 The two grounds advanced by the applicant in the notice of_OJQ.ti,.o_o_ are as follows; "1. That, the panel of Justice over looked(sic) on their decision as the Judgment has no any provision of law of which charged and convicted (sic), thus rendered on (sic) the error on the face of the record which causes miscarriage of Justice. 2. That, the panel of Justice (sic) pleased thus to grant the application and have a to granted (sic) the application and have a review in the whole Judgment to remove the miscarriage of Justice. " In resisting the application, the respondent Republic filed an affidavit in reply sworn by Mr. Rwegira Deusdedit, learned State Attorney. As the background of the case would have it, the applicant, together with Mboje Mawe, Chenyenye Maganyale and Sayi Mavizi were convicted of murder by the High Court (Mjemmas J. as he then was) and were, each, sentenced to suffer death by hanging. They were accused of having 2 murdered one Lyaku Willy, an albino. Aggrieved, they preferred an appeal to the Court which was turned down on 28/6/2011. Still dissatisfied, only the applicant wishes the Court to review its decision. But he is late in lodging the application for review, hence the present application. This application is predicated under Rule 10 of the Rules. That Rule provides: 11 The Court may, upon good cause shown extend the time limited by these Rules or by any decision of the High Court or tribunal for the doing of any act authorized or required by these Rules, whether before or after the expiration of that time and whether before or after the doing of the act: and any reference in these Rules to any such time shall be construed as a reference to that time so extended. TEmphasis supplied] The term good cause is a relative one and is dependent upon the prevailing circumstances of each case. There are no hard and fast rules as to what can constitute good cause. The Court's power to grant applications of this nature is discretionary. However, through various decisions the Court has set some of the factors 3 to be considered by the Court in the course of exercising its discretion. For instance, in the case of Henry Muyaga v. Tanzania Telecommunication Company Ltd, Civil Application No. 8 of 2011 (unreported) which was cited in Henry Leonard Maeda and Another v. Ms. John Anael Mongi, Civil Application No. 31 of 2013 at page 19, it was stated thus:- "/n considering an application under the rule, the courts may take into consideration, such factors as, the length of delay, the reason for the delay and the degree of prejudice that the respondent may suffer if the application is granted." In the present application the question is, has the applicant given ·sufficient cause for the delay to warrant this Court to exercise its discretion to extend the time to file an application for review? Admittedly, the grounds indicated in the notice of motion are not suggestive of any reason for the delay. However, a careful examination of the affidavit in support of the motion reveals that the main reasons for the 4 delay can be deduced from paragraphs 3, 4 and 5 of the affidavit. For ease of reference, I quote them as hereunder: "3. That dissatisfied, then prepared an application for REVIEW early after the dismissed of the appeal and was lodged in the court 4. That the Deputy Registry visited herein Uyui Central Prison, in 2016 year and expressed my request to the application for REVIEW before the Deputy Registrar and after seeing the copies of the application for REVIEW it revealed that my application was done under wrong procedure not according to Rule 66(1) of the CAT Rules 2009 and advised to prepare the new which is in good Jurant. Now I do. 5. That since the delayment was due to my innocence, I prepare the application which was not proper. Now I humbly pray the opportunity to prepare the proper one which will be in good Jurant. I humbly pray." 5 At the hearing of the application, the applicant appeared in person and had no legal representation. The respondent Republic had the services of Mr. Rwegira Deusdedit, learned State Attorney. As it were, the applicant opted to reply after the learned State attorney had submitted on the application. Mr. Rwegira strongly opposed the application saying that the applicant's contentions are not substantiated particularly on the allegation that he had earlier on lodged in Court an application for review within time which he had to withdraw following an advise by the Deputy Registrar who visited the prison that it was predicated under a wrong Rule instead of Rule 66(1) of the Rules. He said if there was any such application then a copy of it together with an order of the court withdrawing it ought to have been annexed to the affidavit. Else, Mr. Rwegira argued, the applicant would have mentioned the case number to prove that it reached the Court and was dully registered. In the absence of such proof, the applicant's contentions remain untrue, he submitted. He urged the Court to dismiss the application. In his reply, the applicant gave a long background of the matter and the steps he alleged that he took to have the Court review its decision. He 6 said immediately after the Court's decision he prepared and, within time, lodged in Court an application for revision. He argued that when the Deputy Registrar visited the prison he was told that he was supposed to file an application for review not revision. That after the advice he prepared an application for review which he signed and was lodged in Court. After that, he said, a long time passed Without being called for hearing of his application. That he wrote to the Deputy Registrar who, in the company of a Registrar from the Court of the Court, then visited the prison and told him that there was no such application pending in Court. He said then he was told that in his application he had cited Rule 65 instead of Rule 66(1) of the Rules. In conclusion he lamented that he, being a prisoner, is under restraint hence unable to move the prison bring his documents to Court within time. He urged the Court to grant his application. I have given a serious consideration to the rival arguments by both sides. I am unable to agree with the applicant that he has advanced good cause for the delay in filing an application for review. It does not occur to me that such a long explanation of what befell on him would be acceptable without any supporting documents as was rightly argued by the learned State Attorney. He alleged that he lodged within time an application for 7 revision but was unable to tell the case number or even produce or annex to his affidavit a copy of it. What is worse is that he also did not annex to his affidavit the Court's· order of withdrawal following the advice by the deputy Registrar that he wrongly applied for revision instead of review. In all, am inclined to agree with the learned State attorney that the applicant took no any step after the decision of the Court. Considering the facts available, it cannot, with certainty, be determined whether or not the applicant really prepared and filed in court the application for revision he alleges to have been compelled to withdraw following the Deputy Registrar's advice. No copy of such application and/or the Court's order to that effect was availed to the Court. Neither can it be said that he prepared and lodged in Court the other application that he alleges went missing in the Court's Registry. In the circumstances, it is not easy for the Court to determine when such steps were taken. The fact, therefore, remains that since the Court turned down his appeal on 28/6/2011 the applicant took no steps to institute an application for review till 22/6/2016 when he filed the present application seeking for extension of time to do so. It took him very close to five years to lodge the present application. The applicant's argument that he being a prisoner and under restraint hence could not 8 push the prison authority to act would hold water only where it is shown that he prepared and signed the documents and handed them to the prison authority for onward transmission to the Court but the later presented them to the Court late. This is not case here. So, apart from the applicant's failure to give sufficient reasons explaining away the delay, the present application was not filed promptly. For the foregoing reasons, this application has no merit. It is hereby accordingly dismissed. DATED at TABORA this 27 th day of August, 2018. S. A. Lila JUSTICE OF APPEAL 9