Mathayo Noah Saningo vs Republic (Criminal Application No. 55/02 of 2024) [2024] TZCA 1078 (8 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CRIMINAL APPLICATION NO. 55/02 OF 2024 MATHAYO NOAH SANINGO ............................................................ APPLICANT VERSUS THE REPUBLIC.......................................................................... RESPONDENT (Application for extension of time to file review from the judgment of the Court of Appeal of Tanzania) (Mwarija, Maiae And Masoud. JJA.^ dated the 15th day of December, 2022 in Criminal Appeal No. 427 of 2020 RULING 30th October & 8th November, 2024 MGOIMYA. J.A .: This is an application for extension of time to lodge review filed by the applicant, Mathayo Noah Saningo on 08th April, 2012. The application is by a notice of motion supported by an affidavit deponed by the applicant. The same is pegged under rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules). Neema Mbwana, a learned State Attorney acting for the respondent resisted the application through an affidavit in reply. Briefly, the applicant was charged and convicted of the offence of unlawful possession of Government trophy contrary to sections 86(1) and

2(b) of the Wildlife Conversation Act, No. 5 of 2009 (WCA) read together with paragraph 14 of the First Schedule to, and sections 57(1) and 60(2) of the Economic and Organised Crime Control Act, Cap. 200 (the EOCCA). He was sentenced to pay fine of TZS. 673,341,000.00 or to serve a term of twenty years in prison. Being aggrieved with the said decision, he unsuccessful appealed before the High Court, whereby the High Court Judge was satisfied that the charge against the applicant was proved to the standard required. Again, the applicant was dissatisfied with the High Court decision, hence lodged his appeal to this Court. Having heard the appeal, the Court found the applicant's appeal was devoid of merit and consequently, dismissed it. Believing that, the Court erred in dismissing his appeal, the applicant intends to challenge the judgment by way of review. However, he delayed to file the intended application within the prescribed time, hence he filed the instant application seeking the Court's order extending the time. During the hearing of the application, the applicant appeared himself, unrepresented whilst, the respondent had the services Ms. Amina Kiango, the learned Senior State Attorney. When invited to submit in support of his application, the applicant stated that, the delay to file an application was due to the facts that he was

delayed to obtain a copy of the judgment. He went on to submit that, soon after delivery of the judgement, he became ill as he was suffering from stomach and spinal code which led to his hospitalization. He stated that, he was admitted for two months from 19/12/2023 to 23/2/2024. That after being discharged, is when he was supplied with a copy of the judgment while the time to file the review was already expired. Further, Mr. Saningo submitted that, the delay to file review was due to the challenges he faced in the prison. He stated that, being a prisoner, he encountered several problems such as lack of printer and photocopy machine which made it difficult prepare the documents. More to that, the applicant stated that, the Judgment subject to review had errors apparent on the face of record. By referring to rule 66(l)(a) and (b) of the Rules, the applicant submitted that, the Court started to discuss his appeal without determining his grounds as they appear in the memorandum of appeal. Hence, he was not given a fair hearing contrary to the Constitution of the United Republic of Tanzania. Basing on what he submitted, the applicant urged me to grant the application, as the intended review will task the Court to review its decision and conduct some corrections.

On the respondent's side, Ms. Kiango having adopted an affidavit in reply, she went on to submit that, according to rule 66(3), the time limit within which to file an application for review is 60 days. She contended that, the applicant's averment in paragraph 4 of his affidavit that, he was admitted and he was late to receive a copy of judgment is not prove as he did not attach any proof that he was sick to the extent of being admitted to hospital. On the complaint that, the delay was occasioned by the problems in the prison, she contended that, the same is also not proved as there is no any affidavit from the prison official on that respect. Moreover, by referring me at paragraph 6 and 7, where the applicant deponed that, his earlier application for review was rejected by the Registrar for being out of time. Ms. Kiango contended that, without there being an affidavit from the Registrar or the prisoner who brought the said application to support the allegations, this ground is not proved hence, is not a sufficient reason. To fortify her proposition, she relied on the case of Anyelwisye Mwakapake v. Republic (Application No.l of 201) [2015] TZCA 193 (13 August 2015, TanzLII). Finally, it was Ms. Kiango's contention that, the applicant did not advance good cause for extension of time. Hence, she prayed the application be dismissed. In his rejoinder, the applicant reiterated his earlier submission and urged the application be allowed.

Having heard the parties' submissions, the nagging issue for determination is; whether there is sufficient cause to warrant the extension of time. Generally, an application for extension of time is subject to the Court's discretion exercisable on the basis of the available material before it. See - Daud s/o Haga v. Jenitha Abdon Mchafu, Civil Application No. 19 of 2006 (unreported) and Jehangir Aziz Abdulrasul v. Balozi Ibrahim Abubakar & Another (Civil Application IM o. 79 of 2016) [2016] TZCA 2035 (22 April 2016, TanzLII). As alluded to above, it is submitted by the applicant that, he delayed to receive a copy of judgment since he was sick and admitted to hospital for two months. Admittedly, illness of the applicant during the material time constitutes a good cause. See - Leonard Magesa v. M/S Olam T. Ltd (Civil Application No. 11 of 2015) [2015] TZCA 180 (5 June 2015, TanzLII) and Debora Nalumasi v. Marko Kamugisha Lwiza, Civil Application No. 45 of 2011. However, it is settled that, for illness to serve as a sufficient reason to warrant the court to exercise its discretion there must be medical reports to prove the sickness. See - Juto Ally v. Lukas Komba & Another (Civil Application No. 484 of 2019) [2020] TZCA 354 (15 July 2020, TanzLII).

In the instant application there is no any piece of evidence attached to the applicant's affidavit to prove that he was sick and admitted to hospital for two months as he alleged. Therefore, without there being any proof of sickness, I agree with Ms. Kiango's objection that, the averments are not substantiated for the same to be considered as a good cause to persuade me to grant the application. Likewise on the contention that, he earlier filed an application for review, but the same was rejected for being out of time and the averment that in prison it is difficult to get the stationaries for preparing the documents, I find these grounds are not substantiated as well. It is settled that, once the applicant shifts the blames for the delay to the prison Authority, such an excuse could not hold water unless were supplemented by an affidavit from the prison officer. That, the absence of such supplementary affidavit leaves the averment bare and unsubstantiated hence of little assistance if any. See - Mela Mango v. Republic, Criminal Appeal No. 5 of 2015 which was referred in Chenyenye Maganyale v. Republic (Criminal Application No. 28 of 2017) [2020] TZCA 337 (23 April 2020, TanzLII) and Jumapili Msyete v. Republic (Criminal Application No. 4 of 2017) [2018] TZCA 314 (13 December 2018, TanzLII).

Therefore, having found that, there was no affidavit from the Registrar and Prison Officer attached to the applicant's affidavit to prove the contention that, the earlier application for review was rejected and that there is hardship in accessing photocopy and printer in the prison, the said reasons fall short of being good cause for the delay to warrant by the extension of time. That said and done, this application is devoid of any sufficient cause to warrant the exercise of the discretion to allow it. Consequently, it is accordingly dismissed. DATED at ARUSHA this 8th of November, 2024 L. E. MGONYA JUSTICE OF APPEAL The Ruling delivered this 8th day of November, 2024 in the presence of the applicant in person and in the presence of Mr. Mahfudh Mbagwa, learned State Attorney the respondent/Republic, is hereby certified as a true copy of the original.