Mulokozi Anatory vs Republic (Criminal Application No. 47/04 of 2017) [2018] TZCA 960 (2 August 2018)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CRIMINAL APPLICATION NO. 47 /04 OF 2017 MULOKOZI · ANATO~;~;t~.!.:'177!)11 ••••• ~·~ ••••••••••• · •• ~ ••••••••••••••••••••••••• -.-· •••• ■~ ••••••• APPLICANT· - VERSUS THE REPUBLIC •••••.•••••••••••••••••••••••••••••••••.•.••.•••••••••••••..••••.••••••.••• RESPON.DENT (Application for Extension of Time which to lodge application for review from the decision of the Court of Appeal of Tanzania at Dar es Salaam) 26 th July & 9 th August, 2018 MKUYE, l.A.: (Kimaro, Luanda, Juma, JJ.A.) dated the 23 rd day of February, 2015 in Criminal Appeal No. 124 of 2014 RULING The applicant Mulokozi Anatory was convicted by the High tCourt of Tanzania at Bukoba (Mjemmas, J.) of murder. He was sentenced to suffer death by hanging. His appeal to this Court (Kimaro, Luanda and Juma, JJ.A.) was dismissed. Realizing that,the period requisite to fife an application for review has lapsed, he has filed the present application. In his application made under Rule 10 of the Tanzania Court of Appeal Rules, 2009, (the Rules) the applicant seeks for extension of time in which to file an application for review. It is supported by an affidavit deponed by 1 the applicant. The grounds for the application as set out in the Notice of Motion are that:- J} Thaton 23/2/2015 the applicant appeared before the Court of Appeal sub registry at Bukoba in which the judgment on appeal was delivered and the appeal dismissed. 2) That after wards the applicant sought to review the said judgment to wit he drew application and submitted the manuscript to the prison Authorities Bukoba Prison on 23/3/2015 purposely for typing and transmission process to the Court. 3} That after considerable lapse of time in limbo the applicant complained to the Hon. Judge in charge of the High Court of Tanzania at Bukoba over the continued state of no response upon the enquiries and application in general only to be informed of the non- availability of the application in question and the Court of Appeals sub- Registry at Bukoba/ hence this application. 2 in Mwanza. He averred further that upon making a follow up of his case which involved writing a letter to the Deputy Registrar with Ref. No. 76/TEMP/MZ/I/IX/115 of 10/8/2015, he did not receive any response. In short, the applicant is attributing the delay to his transfer from Bukoba Prison to Butimba Central Prison in. Mwanza; and the Court of Appeal Registry's failure to respond on the status of his application he had processed. In his submission in Court the applicant asked the Court to consider the reasons in his affidavitand added that in case the application is granted he would canvass on any ofthe grounds provided for under Rule 66(1) (a) to (e) of the Rules. In reply, Mr. Rugaju, resisted the application. He submitted that although the applicant said he prepared and submitted the application for review to the Prisons Authority for typing and transmission to the Court, no copies of such application was attached to the application. He added that in spite of his averment that while Butimba Prison he made a reminder of his application vide a letter, there was no attachment evidencing such a follow up or the efforts he made.· In that regard, he argued that the Court cannot rely on unsubstantiated claims. He referred to me the case· of Charles 4 Barnabas Vs Republic, Criminal Appeal No.· 13 of 2009 to support his argument. As regards m2.:Uiae,d;Jrounds of the - intended review, Mr. Rugaju · contended that the applicant has not shown clearly the ground under Rule 66(1) (a) to (e) of the Rules which he intends to reply on. As such, he said, by saying he will rely on any of the grounds under Rule 66(1) of the Rules, the Court cannot be in a position to know exactly what is intended to be challenged. For those reasons, he prayed to the Court to dismiss the application. In an application of this nature, there are two central issues for consideration by the Court which are one, whether or not the applicant has shown good cause for extension of time; and two, whether the applicant has shown under which ground in Rule 66(1) (a) to (e) is going to rely on. This position was emphasized in the Court in the case of Hamza Ramadhani. @Burμtu @Suka & · Another. Vs Republic, -Criminal Application No. 2 of 2013 (unreported) where it was stated that: "Rule 1Ogoverning extension of time upon good cause being shown must for purposes of extension of time to apply for revie~ relate to the grounds for review set down under rule 66(1), ✓ 5 r \ As regards the first issue, the governing law is Rule 10 of the Rules which provides: ·"The Court ma½ 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 as so extended [Emphasis added]. From the above quoted provision, what is important is for the applicant to show a good cause(s}to warrant the Court to exercise its discretion and grant the extension of time; It is, however, noteworthy that itis not possible to describe what constitutes a good cause or sufficient cause under the said Rule 10 of the Rules (or Rule 8 as it stood under the old Rules). (See Veronica Fu bile Vs The :National Insurance Corporation & 2 Others, Civil Application No. 168 of.20O8; Josephine A. Kalalu Vs Isaack Michael 6 more of the grounds set out in Rule 66(1)(a) to {e) of the Rules. For that matter, it is not expected to base on one's personal dissatisfaction with the outcome of the appeal. This is so due to the public policy which requires the finality of litigation and the certainty of the laws / decisions of the Court of the last resort in the Land;'. (See Eliya Anderson Vs Republic, Criminal Application No.2 of 2013. In this case, the applicant has indicated that should the application be granted he will base on any of the grounds under Rule 66 (l)(a) to (e) of the Rules. It would appear the applicant is not even sure on the ground he intends to challenge the Court's decision due to the manner he has lumped them together. He has neither related any of the grounds in his notice of motion or affidavit in support ofthe application. This places me in a difficult position to know exactly what .is intended to be challenged. At this juncture it is worthy to note that an application for review is not automatic to anyone who is dissatisfied by the Courts' decision. Neither is it an appeal. This was the gist in the case of Eliya Andreson (supra), to which l subscribe, where the Court speaking through Rutakangwa, JA had this to say in extenso: ''It is settled law that a review of a Court Judgment is not a routine procedure but a procedure 9 an affidavit from the Courts official regarding the non-availability of the said application. That, the applicant did not do. In the case of ~arles Barnabas (supra) the Court refused to extend time to file a review when the applicant attributed his delay to the Prisons Authority without substantiation. The Court stated as follows:- "Under the above paragraph the applicant is also blaming the prison authority for the delay in filing an· application for review within time. The a/legation is unsubstantiated in that.there is nothing from the prison authorities to confirm it." [Emphasis added] I subscribed to it. Even in this case, since applicant's allegations are not substantiated by the respective authorities they cannot constitute a good cause for the delay. As regards to the second issue, I must reiterate that an application for extension of time to apply, for review cannot be entertained unless the applicant has not only shown,good cause for delay, but also has established by his affidavit that the. review application would be predicted on one or 8 Mallya, Civil Reference No;, 1 of 2010 (both unreported). Under those circumstances, the Court has in most cases exercised its discretionary powers judiciously·tn construing such good causes in accordance With the prevailing circumstances in each case. (See Bertha Bwire Vs Alex Maganga, Civil Reference No. 7 of 2016 (unreported). After having dispassionately considered the arguments of both sides, I subscribe to what was submitted by Mr. Rugaju that the applicant has failed to .do so. I will explain; The,applicant1s claims that he had prepared the application and handed it to the Prison Authority for typing and transmission to the Court; that the Deputy Registrar did not respond to his inquiry·on the status of his application; and .his being transferred from Bukoba Prison to Butimba Central Prison cannot be relied upon without. any documentary proof from officials of the Prisons Authority or the Court. In raising such allegations the applicant was expected to have backed them with affidavits from Prisons Authority showing that he really prepared $UCh an application; .. he was transferred from Bukoba Prison to Butimba Central Prison; and that his efforts to make a follow up on such issue proved futile. Moreover, he was expected to have attached a copy of a letter with Reference No. 76/TEMP/MZ/I/IX/115 of 10/8/2015 addressed to the Deputy Registrar and 7 of its own kind {sui generis). That is why the review jurisdiction is exercised "ve,y sparingly and with great circumspection// {Blueline v. E.A.D.B. {supra). That is why also it has been consistently held that "while an appeal may be attempted on the pretext of any erro~ not eve,y error will justify a review// {Chandrakant Patel v. R. {supra). It is for this ve,y fundamental reason/ that Rule 66(1) unequivocally provides that ''no application for review shall be entertained except on the ''basis of the five grounds mentioned therein. By the same parity of reasoning/ I believe it would not be a monstrous justice to hold that an application for extension of time to apply for review should not be .. entertained unless the applicant has not only shown· . good cause for the delay, but has also established by affidavital evidence/ at that stage/ either . implicitly or explicitly, that the review 10 application would be predicated on one or more of the grounds mentioned in Rule 66(1)., and not on· mere personal dissatisfaction with the outcome of the appeal which appears patently to be the case in this application. If we want to remain truly faithful to the much cherished public policy which calls for finality to litigation and certainty of the law as declared by the court of last resort, then we cannot divorce the application of the strict provisions of Rule 66(1) from proceedings of this type.,, Even in this case, sincethe applicant has just generalized the grounds under sub rule (1) of Rule 66 of the Rules and has not shown them in his affidavital evidence eitherdmplicitly or explicitly, I find that he has failed to establish them. By his failure to show grounds of review, the application is bound to fail. In the fine, since the.applicant has failed to show a good cause for the delay and the exact ground of review under Rule 66 (1) (a) to (e) of the 11 · Rules, I find the application to have no merit. It is, therefore, accordingly dismissed. .. DATED at DAeES·SALAAM this 02 nd day of August, 2018. R.K.MKUYE JUSTICE OF APPEAL I certify that this is a true copy AH. MSUMI DEPUTY REGISTAR COURT OF APPEAL 12