William Ndingu @ Ngoso vs Republic (Criminal Application No. 3 of 2014) [2014] TZCA 2349 (18 September 2014)

IN THE COURT OF APPEAL OF TANZANIA AJMWANZA CRIMINAL APPLICATION NO. 3 OF 2014 WILLIAM NDINGU @ NGOSO ...................................... .. APPLICANT VERSUS THE REPUBLIC ......................................................... _ .. RESPONDENT (Application for extension of time to file a Notice of Appeal in the Court of Appeal of Tanzania from the judgment of the High Court of Tanzania 18 th & 19 th September, 2014 JUMA, l,A,; at Mwanza). (Mchome, l.) Dated the 18 th day of May, 2005 in Criminal Appeal No. 114 of 2002 RULING The matter before this Court is an application by way of a Notice of Motion for extension of time within which to file a Notice of Appeal. In his motion, WILLIAM NDINGU @ NGOSO (the applicant), has invoked Rules 10 and 71 (5) of Tanzania Court of Appeal Rules, 2009 (the Rules). In case the extension is granted, the applicant will lodge his Notice of Appeal to initiate an appeal against the judgment of the High Court in Criminal Appeal No. 114 of 2002 which was delivered on 18 th May, 2005 by L B. Mchome, J. The motion is supported by the applicant's own affidavit and 1

also by a Supplementary Affidavit sworn by Mr P. Mukama, the Prison Officer in Charge of Butimba Central Prison. The background to this application and its accompanying documents is discernible from supporting affidavit of the applicant. It all began when the applicant together with six others, were in the District Court of Geita (Criminal Case No. 238 of 2000), charged with the offence of armed robbery contrary to section 285 and 286 of the Penal Code, Cap. 16. Only the applicant was found guilty and convicted accordingly. He was ordered to serve fifteen years in prison. Aggrieved, the applicant filed an appeal to the High Court at Mwanza. The applicant was not present in the High Court on 18 th May, 2005 when L.B. Mchome, J. not only dismissed his appeal, but in addition enhanced his sentence to thirty years in prison. Being aggrieved by the decision of the High Court, the applicant who was by then out of time to file a Notice of Appeal, lodged an application in the High Court to seek an extension of time to file that Notice of Appeal against the Judgment of Mchome, J. He was unsuccessful because on 13 th April, 2007 Sumari, J. denied the applicant the extension of time he had prayed for. Aggrieved by being denied the extension, the applicant made a second attempt in this Court when he filed the MZA Criminal Application 2

No. 9 of 2011 to pray for an extension of time to file a Notice of Appeal. His application was struck out because the Single Justice of the Court (Massati, J.A.) found that instead of citing the applicable Rule 10 to move the Court, the applicant had instead relied on Rule 48. When this application came up for hearing today, the applicant was not represented by any learned counsel. He asked the learned State Attorney to react first to his application. The learned State Attorney, Ms Martha Mwadenya appeared for the respondent Republic. At the very outset Ms Mwadenya supported the application. She pointed out that on 18 th May, 2005 when L.B. Mchome delivered the Judgment of the High Court the applicant was not present. She further observed that the applicant was at that moment in time serving his sentence in Kigoma and he could not therefore be in a position to lodge his intention to appeal. When his chance to respond came, the applicant agreed with the position which Ms Mwadenya had taken to support his application. He urged me to grant him the extension of time. 3

From submissions of the applicant and those of the learned State Attorney, I shall begin from the perspectives of Rule 10 which the applicant cited in his motion. The cited Rule 10 states: "10. 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 as so extended'~ [Emphasis added]. After giving the deservedly thought to the concurrent position taken by the applicant and the learned State Attorney, it seems to me that the third paragraph of his affidavit, the applicant shows the good cause why he could not file his notice of appeal within the thirty days of the Judgment of the High Court as prescribed by Rule 68 of the Rules which provides: "68.-(1) Any person who desires to appeal to the Court shall give notice in writing, which shall be lodged in triplicate with the Registrar of the High Court at the place where the decision against which it is desired to appeal was 4

given, within thirty days of the date of that decision, and the notice of appeal shall institute the appeal." [Emphasis added]. The third paragraph of his affidavit referred to above, states: "That, while the High Court was delivering the Judgment, I was in Kwitanga Prison, Kigoma. Since the prison authority of Butimba prison, Mwanza was received order of decision/judgment of the High Court, it sent the radio call to where I was confined on time being. But the order was received by the prison and forwarded to me already late to the contract it doesn't been stated at when the said call was sent there for that purpose. The circumstance and reality there is supported same with a Prison Officer in- charge letter vide number 112/MZ/I/L/VII/173 of J dh January, 2006 which hereby appended and marked as annexture 1 1SMJ" and the High Court Judgment as annexture 1 1SM2~." 5

I think, despite its grammatical lapses, the cited paragraph of the affidavit lucidly conveys good cause to the effect that when Mchome, J. (as he then was) delivered the judgment of the High Court on 18 th May, 2005, the applicant was not in Mwanza. He was serving his prison term in Kwitanga Prison in Kigoma Region. It was the Butimba Prison Authorities who received a copy of the Judgment of the High Court to inform the appellant that his appeal had not only been dismissed but that his sentence had also been enhanced from fifteen (15) years to thirty (30) years. Butimba Prison leadership sent a radio-call to the prison where he was confined, but it was already late. The applicant backed up this claim by attaching to his affidavit, a letter (KUMB NO. 112/MZ/I/ LVII/173 dated 16/1/2006) which ACP C.P. RUVUGO, the Prison Officer in Charge of Butimba Central Prison informing the District Registrar of High Court at Mwanza that by 16/1/2006 when he wrote the letter the copy of the Judgment that was delivered by Mchome, J. had not reached the applicant. All these reasons were supported by the Supplementary Affidavit sworn by SP. P. Mukama of Butimba Central Prison. 6

' . I should also point out that prisoners serving time in prison invariably have no control over which place in Tanzania they serve their sentences. They similarly have no control over the dates and times they are brought to courts to hear the outcomes of their appeals. They do what the prison authorities direct them to. Failure of the applicant to be in Mwanza to receive the judgment of his appeal on 18 th May, 2005 was not of the applicant's own making. As this Court said in Alfred Mambya vs. R., Criminal Appeal No. 181 of 2010 (unreported), the appellants serving time in prison receive court orders through prison authorities. In Msafiri Emmanuel vs. R., Criminal Appeal No. 258 of 2010 this Court stated: "This Court has at least one occasion/ stated that delays occasioned by prison officers constitute good cause to an appellant serving prison term. In CRIMINAL APPEAL NO. 107 OF 200~ SOSPETER LULENGA VS. THE REPUBLIC (unreportedJ one Sospeter Lulenga who was in prison/ had fulfilled his obligation when he expressed his intention to appeal and there was nothing that he could have done to cause the prison officer to transmit the Notice of Appeal to 7

. • the High Court to lodge the appeal. We found that Sospeter Lulenga had shown good cause'~ "The default of the prison officer to forward the Notice of Appeal to the High Court is sufficient ground for extending the period of appeal. .. " Like the learned State Attorney, all this leads me to an inescapable conclusion that the applicant has shown good cause to warrant the grant of the extension sought. In the event, the applicant is hereby granted leave to lodge a Notice of Appeal within thirty (30) days of the date of this order. It is so ordered. DATED at MWANZA this 18 th day of September, 2014. I. H. JUMA JUSTICE OF APPEAL 8