Alex Lemali vs Republic (Criminal Appeal No. 212 of 2012) [2014] TZCA 2276 (14 March 2014)

! IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: BWANA, IA; MANDIA, IA; And ORIYO, J.A.) CRIMINAL APPEAL NO. 212 OF 2012 ALEX LEIIALI U.U...U.......U.I.U.....U...................APPELL.ANT VERSUS THE REPUBLIC •••.......................................... RESPONDENT (Appeal from the decision of theHigh Court of Tanzaniaat Arusha) (MassengLJ.) Dated 23cday of )uly, 2012 In Criminal ADDeaI No. 75 of 2011 RULING OFTHE COURT 13th &191h March, 2014 BWANA, J.A. The appellant, Alex Lemali, was charged with and convicted of the offence of Armed Robbery contrary to section 287 (A) of the Penal Code. He was sentenced to the mandatory minimum sentence of thirty (30) years imprisonment. The conviction and sentence were upheld by the first appellate court, the High Court of Tanzania at Arusha. Still aggrieved, he preferred this second appeal. 1

i' According to the court record, the High Court judgment was delivered on 23rd July 2012 but then the appellant lodged his notice of appeal on 5th October, 2012, a period of over two months. That late lodging of the appeal prompted the respondent Republic to file a notice of preliminary objection couched in the following words- "The appeal is in competent for non compliance with the mandatoty provision of Rule 68(1) of the Court of Appeal Rules, 2009." When the matter came up for hearing, Mr. Zacharia Elisaria, submitted that according to Rule 68(1) of the Court of Appeal Rules, 2009 (the Rules), the appellant ought to have lodged his notice of appeal within thirty (30) days of the date of that decision. The appellant was therefore, late to institute his appeal and no leave for extension of time had been sought and obtained. The appellant, who was unrepresented, however, controverted those views by Mr. Elisaria. According to him, the judgment of the High Court was delivered on 2nd October 2012 (and not 23rd July, 2012). Following 2

4 ' , c the delivery of the judgment he took the necessary steps and had his notice of appeal filed in Court on 4th October 2012, that is, two days later, he asserted. According to the appellant, it is the judge of the High Court who mistakenly, backdated the date she delivered her judgment. The contested issue here is whether the appellant lodged his notice of appeal later than the thirty days prescribed period or it is the judge who inserted in a wrong date. We have carefully considered the issue by perusing the court record and analyzing all the issues involved. The appellant's appeal before the High Court came up for mention for the first time on 1 oth October 2011 where it was adjourned to 16th January 2012.On that date the appellant was absent so the hearing was fixed for 19th March 2012. However, the said hearing did not get started until 26th June 2012. After that date, the judge fixed 23' July 2012 for judgment. Came July 23rd, judgment was delivered. Thereafter, the said judge did not have access to the case file. The above sequence of events clearly point to the irresistible proof that the High Court judgment was indeed delivered on 23d July, 2012 and not 2 nd October 2012 as claimed by the appellant. The appellant has not 3

4 S given any proof in support of his claim that the said judgment was delivered on 2nd October 2012 and that the judge may have erred in writing the correct dates. We are not persuaded by the appellant's version of the story as there is no proof to support it. We therefore hold that having lodged his notice of appeal on 5th October 2012, the appellant contravened the provisions of Rule 68(1) of the Rules. Accordingly we uphold the preliminary objection and strike out the impugned notice of appeal lodged by the appellant on 5th October, 2012. We order so. DATED at ARUSHA this 14th day of March, 2014. S.J. BWANA JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL K.K. ORIYO iik JUSTICE OF APPEAL I certify that a tru copy of t\original. 'I / M.A. IMALNE DEPUTY REGI 4