William Sunday vs Republic (Criminal Appeal No. 9 of 2015) [2015] TZCA 524 (19 August 2015)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MASSATI. J.A.. ORIYO. J.A. And MUSSA. J.A.^ CRIMINAL APPEAL NO. 9 OF 2015 WILLIAM SUNDAY........................................................................... APPELLANT VERSUS THE REPUBLIC .............................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Mrema, J J dated the 16th day of August, 2005 in Criminal Application No. 76 of 2003 JUDGMENT OF THE COURT 17th & 19th August, 2015 MASSATI, J.A.: The appellant was convicted of the offence of rape by the District Court of Rungwe, at Tukuyu. It was alleged there that, on the 24th day of December, 2001 at 18.00 hrs, at Nkalisi village in Rungwe District, Mbeya Region, he had sexual intercourse with one BAHATI D/o KALOFYA, who was 13 years of age. He pleaded not guilty which attracted a full trial, ending in his conviction as aforesaid, and thereby sentenced to 30 years imprisonment.

His attempts to appeal were thwarted by the statute of limitation, which forced him to apply for extension of time to file an appeal under section 361(a) of the Criminal Appeal Act (Cap 20 R.E. 2002) (the CPA). That application was heard and rejected by Mrema, J. (retd.) in a ruling dated 16th August 2005. He attempted to appeal to this Court. In a ruling dated 18th November, 2010, this Court struck out the appeal because it was predicated upon a defective notice of appeal. He has now come again to this Court to assail the ruling of Mrema, J. The appellant who is unrepresented has filed a four - ground memorandum of appeal but the main plank of the appeal is that, Mrema, J. considered matters irrelevant to an application for extension of time, and in that way, denied him of his right to be heard on the substantive grounds of his appeal, upon which the ruling rested. His prayer is that we step into the shoes of the High Court and exercise our powers under Rule 47 of the Court of Appeal Rules, 2009, and grant the extension ourselves. Mr. Basilius Namkambe, learned State Attorney, who appeared for the respondent/Republic, did not oppose the appeal. In his short but focused submission, Mr. Namkambe said that, although the application before the

High Court was that for extension of time, the decision of the Court was based on the merits of the intended appeal, which was a serious misdirection. The High Court ought, but did not consider the reasons for the delay in filing the appeal. So, he urged us to allow the appeal. The appellant's application was instituted by a chamber summons supported by an affidavit. The main reason for the delay is set out in paragraph 3 of the affidavit, to wit: - "3. That, after such conviction being passed by the D/Court o f Rungwe on arriving at notified to the Prison Officer in charge that I intended to appeal to the High Court o f (T) against both conviction and sentence therefore the Prison Officer in charge of Tukuyu Prison told me that he would prepare such notice o f intention to appeal on behalf o f me, for my knowledge I knew that he was already prepared and forwarded it to the High Court o f (T) at Mbeya but he couldn't do so. I discovered such thing this year (2003) here at Ruanda Prison that the authority of Tukuyu District Prison cannot prepare such notice of intention to appeal on behalfof me and lodged to the H/Court of (T) at Mbeya within ten days allowed by law. For this reason I started to prepare and to lodge

such notice o f intention to appeal to the High Court out o f time. I pray to the honourable H/Court o f (T) at Mbeya my application be allowed." There was no counter affidavit filed by the respondent to oppose the contents of this paragraph. In his ruling, the learned judge acknowledged that reason for the delay but decided to concur with the State Attorney who appeared for the respondent that: "If the intended appeal on merit) has not any slightest chance of success then it is useless on my part to delve into the grounds of the application, as that process ultimately would be a futile exercise." Then, the learned judge went on to analyse and evaluate the evidence on record, at the end of which he concluded that: - "In the light o f the material facts summarized above, it is without further do (sic) that the case for the prosecution was proved beyond adventure. There is no material ground from the facts and circumstances of the case which could convince this Court to decide 4

against the weight of evidence on record, or against the decision of the trial court. To say the least, these conclusions were uncalled for. It was not the right time to draw such conclusions, because, the High Court there, was not sitting on appeal. It was moved under section 361(b) of the CPA, to consider whether or not there was "good cause" to admit the appeal out of time. The position of the law is that although "chances of success" on appeal was once considered a good cause under this provision (See MWANGU v KANYILISI (1970) HCD 240; the modern trend is to shift away from that, because it has been held that at this stage the High Court would not have been seized with the appeal so as to be able to assess the chances of success. Thus in KASSANA SHABANI AND RAJABU HUSSEIN v R, Criminal Appeal No. 476 of 2007, and MATOKEO JANUARY v R, Criminal Appeal No. 134 of 2008 (both unreported) we had occasion to remark as follows: - "Once an appellant under s. 361 of the (CPA) Act has satisfactorily accounted for the delay in giving notice o f intention to appeal or filing the petition o f appeal, extension o f time ought to be granted as a matter of right... 5

Whether or not the appeal deserves a hearing at all must wait to be determined at the time of admissions under section 364 (1) of the Act, which vests the High Court with powers o f summary rejection. At that stage the High Court shall be seized with jurisdiction to determine the appeal before it." (See also DAVID LANGSON v R, Criminal Appeal No. 44 of 2013 DAUDI ABDALLAH v R, Criminal Appeal No. 175 of 2004 (both unreported). This means that by dismissing the appellant's application for extension of time by using the weaknesses in the supposed merits of his intended appeal, the learned judge in this case went beyond the scope of his jurisdiction, because the appeal was not yet before him. For this reasons, the ruling of Mrema, J. is null and void for want of jurisdiction. It is accordingly quashed. We have considered what the appellant has asked us to do, in case we allow the appeal. He had asked us to extend time under Rule 47 of the Court of Appeal Rules, 2009. We are afraid, we cannot invoke that rule here, because to our understanding that rule can only be invoked to extend time to appeal to this Court, not to the High Court, as in the present case. In the circumstances we have to invoke our revisional jurisdiction under section

4(2) of the Appellate Jurisdiction Act, and step into the shoes of the High Court and allow the applicant's uncontested application for extension of time to appeal against the judgment of the trial District Court. The appellant is to give his notice of intention to appeal within (10) ten days from the date of the delivery of this judgment, and thereafter lodge his petition of appeal within forty five days from the date of the delivery of this judgment. The appeal is to that extent allowed. DATED at MBEYA this 18th day of August, 2015. S. A. MASSATI JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL K. M. MUSSA JUSTICE OF APPEAL I certify that this is a true copy of the original. P. W. BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL