Deogratius Beno vs Republic (Criminal Application No. 36 of 2012) [2013] TZCA 2398 (17 December 2013)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM . CRIMINAL APPLICATION NO. 36 OF 2012 DEOGR_TILJS BENO ..................................................................... APPLICANT VERSUS THE REPUBI..IC ........................................................................... RESPONDENT (Application for Extension of time within which to file Review out of time From the decision of Court of Appeal of Tanzania at Dar es salaam) [I I!I ii! [sWW iiii Dated the Ast day of April, 2009 in Criminal Appeal No. 166 of 2005 RULING 6th & 19th Dec, 2013 ORIYO,1A.: Sometimes in April, 2009, this Court dismissed the applicant's appeal in Criminal Appeal No. 166 of 2005. The appeal which had its origins in PC Criminal Appeal No 111 of 2000 in the High Court, sitting at Dar es Salaam, was challenging a decision of the Kinondoni District Court which had convicted the applicant of rape of a six year old girl, contrary to section 130(2)(e) and 131(1) of the Penal Code.

Apparently, the applicant was dissatisfied with the Court's decision. Aware that he had no further right of appeal, he opted to seek further remedy by way of review, in November 2012. However, he realized that under Rule 66(3) of the Court Rules, 2009 (the Rules), an application for review has to be lodged within 60 days of the Court's decision. He lodged this application for extension of time to apply for Review, under Rule 10 of the Rules. The application was by way of Notice of Motion supported by an affidavit of the applicant. And in compliance with Rule 48 (1) of the Rules that a notice of motion shall state the ground for the relief sought, the applicants grounds for the relief sought are stated in paragraphs 1 to 3 thereof in that:- "The applicant was unaware about Review terms and procedure since he was not informed by the ob/iiated PARTIES. The applicant intends to raise one of the grounds stiu/ated in Rule 66(1) of the court of appeal Rules 2009 in the event that time sought is extended. 2

3. The burden of delay to duly file Review should not hold against the applicant as he entirely depended on Prison authority as per s.363 of the CPA Cap.20 of R.E2002." The respondent Republic resisted the application by way of an affidavit in reply sworn on its behalf, by Mr. Benson Mangowi, learned State Attorney. The respondent prayed for the dismissal of the application as the applicant has failed to disclose good reasons to explain away the delay of four years after the court's decision complained of. At the hearing of the application, the applicant appeared in person to prosecute the application. The respondent republic was represented by Ms Cecilia Mkonongo, learned State Attorney. For the benefit of the applicant, yiho is a layman, I allowed the learned State Attorney to submit first. In her brief submissions, Ms Mkonongo reiterated the grounds of objection in the respondent's affidavit in reply. She stated that the applicant's alleged ignorance of the review remedy, does not constitute good cause to extend the time. On the applicant's intended reliance on one of the grounds in rule 66(1) of the 3

Rules, the learned State Attorney challenged it for not being clear and specific as to which of the five subrules under rule 66(1) are relevant. Regarding the applicant's reference to section 363 of the Criminal Procedure Act, Cap 20, Ms Mkonongo's rebuttal was that it was not applicable because there was no evidence that the applicant was at anytime delayed by Prison authorities while in pursuit of his intention to come back to Court for the review. The learned State Attorney urged me to dismiss the application for lack of merit. On his part, the applicant urged me to grant the extension of time sought to institute an application for review on the basis of the grounds stated in the notice of motion and the supporting affidavit. He insisted that sight should not be lost on the fact that he is a prisoner with no freedom to do as he wishes. In an application for extension of time to file an application for review, the applicant must satisfy the criteria set out under rule 10 of the Rules which states:- "The Court may upon good cause shown, extend the time limited by these Ru/es or by any decision of the Hi'h 4

Court or tribunal, for. the doing of any act authorized or required by these Ru/es, whether before or after the expiration of that time and whether before or after the doing of the act; and any reference in these Ru/es, to any such time shall be construed as a reference to that time as so extended' (Emphasis mine). It is obvious from the wording of rule 10 that the extension of time sought is predicated upon good cause being shown by the applicant. In determining whether to grant or not to grant such extension of time, the following factors have to be taken into account, inter alia:- The length of delay; The reason for the delay; C) Whether there is an arguable case, for example, whether there is a point of law or the illegality or other wise of the decision complained of; d) Whether, if granted it will prejudice the opposite party; 5

• See, Joel Silomba yR1 Criminal Application No. 5 of 2012; Tanzania Revenue Authority vs Tango Transport Co Ltd, Consolidated Application No. 4 of 2009. Thomas Mgiro yR1 Criminal Application No 2 of 2011, (all unreported). Upon careful study of the grounds stated in the notice of motion, I fail to see any reason in those grounds which can be said to constitute good cause for the applicant's delay of four years. The applicant has failed to account for the inordinate delay to apply for a review within the prescribed period. The Court's powers to review its decisions is derived from Rule 66(1) of the Rules which provides:- "66 -(1) The Court may review its judgment or order, 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

a party was wrongly deprived of an opportunity to be heard; or the court's decision is a nullity; or the court had no jurisdiction to entertain the case; or the judgment was procured illegally, or by fraud or perjury" It is settled law that an application for review ought to be confined to the five grounds only, in terms of Rule 66(1) (a) to (e). The applicant appears to have intentionally avoided to make a disclosure in the notice of motion and the supporting affidavit as to which particular ground or grounds of review, (a) to (e), are relevant to the intended review. Merely stating that in the intended review, he intended to rely:- "upon some of the grounds stipulated in Rule 66 (1) of the Court of Appeal Rules, 2009 without specifically stating whether it is ground (a) or (b) or (c) of (d) or (e), or a combination of some of them, does not assist him in support of his case or in persuading the Court that he has advanced good cause for the extension of time sought. 7

• In the event, I agree with the learned State Attorney that the applicant has failed to disclose good cause for the Court to grant an order extending the time for lodging an application for review of the Court's judgment delivered in April, 2009 in Criminal Appeal No. 166 of 2005. Accordingly the application is dismissed. DATED at DAR ES SALAAM this 17th day of December, 2013. / &.- K.K. ORIYO / JUSTICE OF APPEAL '- -------- ,/ that this a true copy of the Original. Izu —DEPUTY REGISTRAR COURT OF APPEAL 8