Duda Dungali vs Republic (Criminal Application No. 4 of 2013) [2014] TZCA 2142 (9 May 2014)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA CRIMINAL APPLICATION NO. 4 OF 2013 DUDA DUNGALI ................................................... APPLICANT VERSUS THE REPUBLIC ................................................. RESPONDENT (Application for extension of time within which to file an application for review of the decision of the Court of Appeal of Tanzania at Mbeya) (Lubuva, Munuo, Msoffe, JJJA.) dated the 5th day of May, 2005 in Criminal Appeal No. 237 of 2004 RULING 5th & 9th May, 2014 BWANA. J.A.: On 5th May, 2005, the Court of Appeal of Tanzania dismissed an appeal by the applicant, set aside a sentence of twenty five (25) years imprisonment and substituted thereof a sentence of thirty years imprisonment. Thereafter, it appears the applicant took no further steps until on 28 December, 2012 when he lodged a notice of motion under Rule 10 of the Court of Appeal Rules, 2009, applying for extension of time within which to file an application for review out of time. According to paragraph 3 of the Affidavit in support, he was prevented from filing

the application within time allowed by law because the Court's Registry failed to supply him with copy of judgment of the Court until 20th November, 2012, a period of over seven years later. When the matter came up for hearing, Mr. Achiles Paul, learned State Attorney, raised a preliminary objection based on three major issues namely:- • That the application is defective for non citation of the law. According to Mr. Paul\ citation o f Rule 10 o f the Court of Appeal Rules, 2009 (the Rules) is not sufficient. He should have cited Rule 48 (1) as well. • That the application offends Rule 48(1) and (2) o f the Rules by not citing the names o f the Justices o f Appeal whose decision he wants it reviewed (citing the case of Hilda Ando/He @ Panjan v. Republic Criminal Appeal No. 203 o f2009 (unreported). • The application is untenable in law for the court lacks jurisdiction to entertain it (citing the case o f Charles Barnabas v. Republic, Criminal Appeal No. 13 o f 2009 (unreported).

The applicant had nothing useful to add in addition to what he had stated in his affidavit in support of the Notice of Motion. I have considered the issues raised. Firstly, I note that there is no proof by the applicant that he ever applied for copies of judgment and within a prescribed period as he alleged. This Court delivered its decision in May, 2005. A period of over seven years elapsed before filing the present application. That period is rather long for him not to have taken action in the form of a reminder to the relevant prison and or court authorities. Likewise I subscribe to the views stated by this Court in the case of Hilda Andulile (supra). An omission to state in his Notice of Motion, the names of the Justice of Appeal who heard his earlier appeal cannot be said to be a minor defect. It is not. Further, the applicant has not indicated anywhere that he intends to canvas any of the grounds stated in Rule 66(1) of the Rules, in pursuing his application for review. 3

Any blame for delay attributed to the Court Registry, remains unsubstantiated as there is neither from the applicant nor the prison authorities proof that indeed the applicant applied for the said copies within the period prescribed by law, so that the Court can determine whether to grant extension of time or not (See: Amiri Athuman v. Republic, Criminal Application No. 6 of 2011, unreported). All the above considered, I am of the settled view that this application is devoid of merit. It should and is hereby dismissed in its entirety. DATED at MBEYA this 5thday of May, 2014. I certify that this is a true copy of the original. FJ. Kabwe DEPUTY REGISTRAR COURT OF APPEAL