Jirani Maarufu vs Republic (Criminal Application No. 8 of 2013) [2014] TZCA 2259 (28 November 2014)

'\ .. • ·1 ., ' . IN THE COURT OF APPEAL OF TANZANIA ATMTWARA CRIMINAL APPLICATION NO. 8 OF 2013 JIRAN I MAARUFU •••••.•••••••••••••••.••••••••.••••••••.••••.•••••.•.•••••••••.•••....••. APPLICANT VERSUS THE REPUBLIC •••••••••.••••••••••••••••••••••••••••.••••••••••••••••••••••••••.••••••• RESPONDENT (Application for extension of time to file application for Review of the decision of the Court) {Othmani, C.J., Mbarouk, Bwana, JJA.) 26 th & 28 th November, 2014 ORIYO, J.A.: dated the 25 th day of lune, 2012 in Criminal Appeal No. 193 of 2011 RULING On the 25 th day of June, 2012, the Court dismissed in its entirety, the second appeal by Jirani Maarufu, the applicant herein. It is for that reason that the applicant is now seeking an extension of time to apply for Review under Rules 10 and 48 (1) and (4) of the Court of Appeal the Rules, 2009. The application is by way of a Notice of Motion and is supported by the affidavit of the applicant. The grounds for seeking an extension of time as discerned from the Notice of Motion and the accompanying affidavit are as follows:-

1. The application is his right as a prisoner. 1

2. This Court failed to inform him of the law that time to lodge a review is limited to sixty days only.

3. The delay to lodge it was caused by a breakdown of a typing machine and a computer at the prison where he is held. At the hearing, the applicant who appeared unfended asked for the respondent Republic to make its submissions first while reserving his right to reply thereon thereafter. Mr. Paul Kimweri, learned State Attorney who represented the Republic, resisted the application from the outset. Making reference to the grounds forming the basis of the application, the learned State Attorney submitted that save for the third ground, the remaining two grounds do not constitute "good cause" for the extension of time sought, in terms of rule 10 of the Court Rules. On a prompting from the Court, the learned State Attorney further submitted that the application does not meet the legal requirements. He stated that an application for a Review is limited to the grounds set out in Rule 66 (1) (a)- (e) of the Court Rules but the applicant did not state the basis of his grievances against the impugned decision of the Court. 2

In response, the applicant did not have much to say. He conceded to the shortcomings as pointed out by the learned State Attorney and emphasized on his limitations as a prisoner faced with lack of freedom, facilities, etc. He concluded with a prayer that his application be allowed. In terms of Rule 66 (3) of the Court Rules, the applicant ought to have lodged the application for review within sixty (60) days from 25/6/2012 when his appeal was dismissed. He did not do so. Has the applicant shown "good cause" for the delay of over 2 years, prescribed in Rule 10 of the Court Rules? In the case of Kalunga and Company Advocates vs National Bank of Commerce Limited [2006] TLR 235, the Court held:- "{i) Under Rule 8 of the Court of Appeal Rules 1979, the Court has a wide discretion to extend time where the time has already expired, but where there is inaction or delay on the part of the applicant, there ought to be some kind of explanation or material upon which the Court may exercise the discretion given. " (Emphasis supplied). 3

Suffice it to state here that the application in Kalunga's case was made under Rule 8 of the 1979 Court of Appeal Rules which is similar to Rule 10 of the current Rules. Unfortunately the applicant did not specify in the Notice of Motion or in the supporting affidavit that he intended to rely on any of the grounds laid down in Rule 66 (1) (a) to (e) of the Rules. It should be noted that a Review of a decision of this Court is not an automatic right but it is only available in the exceptional circumstances stipulated under rule 66 (1) as shown hereunder:- "66. (1) The Court may review its judgment or orde0

but no application for review shall be entertained except on the following grounds.· (a) the decision was based on a manifest error on the face of the record resulting in the miscarriage of justice; or (b) a party was wrongly deprived of an opportunity to be heard,· (c) the court's decision is a nullity; or 4

( d) the court had no jurisdiction to entertain the case/ or ( e) the judgment was procured illegal!½ or by fraud or perjury." (Emphasis provided). Apparently the applicant, like most people in the society who are not conversant with the law, often equate a review to another opportunity in the appellate process, which is not. This Court, in similar circumstances, in the case of Efficient International Freight Limited and Another vs Office Du The Du Bunudi, ,Civil Application No. 23 of 2005, (unreported), had opportunity to state as follows:- "... a review is not a stage or a step in the appeal process or structure. We say so because/ yet again/ of late it is apparent that some parties appear to think that once aggrieved by the outcome of an appeal there is always an automatic right of a review. As 5

,; already alluded to, a review is only available in the circumstances shown above. A review is not available as an automatic remedy to an aggrieved appellant." (Emphasis added). In Charles Barnabas vs Republic, Criminal Application No. 13 of 2009, (unreported) this Court restated the law that in an application for extension of time to apply for review, an applicant must indicate which of the grounds of review under Rule 66 (1) he intends to rely upon in the event the Court grants an extension of time. Some years later, in the case of Eliya Anderson vs Republic, Criminal Application No. 2 of 2013, (unreported), the Court, in its wisdom stated that an application for extension of time should not be entertained unless the applicant has shown good cause for the delay and has also established by affidavital evidence that if an extension is granted, the application for review would be based on one or more of the grounds stated under paragraphs (a) to (e) of subrule (1) of Rule 66. Emphasis supplied.) In view of what I have stated above, I find that the applicant has not advanced sufficient cause to explain away the unduly long delay to apply for 6

the extension of time to apply for a review, in terms of Rule 10 of the Court Rules. Consequently, the application is dismissed. DATED at MTWARA this 28 th day of November, 2014. K. K. ORIYO JUSTICE OF APPEAL I certify that this is a true copy of the original. a.: ~~ .:BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 7