Court name
Court of Appeal of Tanzania

Melkizedeki Gabriel & Shabani Benjamin vs Republic () [1993] TZCA 33 (15 November 1993);

Law report citations
1993 TLR 269 (TZCA)
Media neutral citation
[1993] TZCA 33

Kisanga, J.A., read the following considered judgment of the Court:
G The appellants were jointly convicted by the District Court for robbery with violence contrary to s 285 and s 286 of the Penal Code, and were each sentenced to eight years imprisonment. They sought to appeal to the High Court against both conviction and sentence, but as it appeared that they H were time barred, they applied to that Court for leave to appeal out of time. Munuo J (Mrs) who consolidated and heard the applications dismissed them because no good cause was shown for enlarging the time. Dissatisfied with the refusal, the appellants applied for leave to appeal against it but Mroso J who also consolidated and heard the applications refused them on the ground that no I point of law was involved in the ruling of Munuo J (Mrs) which required consideration by this

Court. The present appeal arises from that decision. Although in their joint Notice of Appeal to this A Court the appellants indicate that they are appealing against the decision of Munuo J (Mrs), the true position is that they are appealing against the decision of Mroso J refusing them leave to appeal to this Court against the decision of Munuo J (Mrs). Accordingly, we treated the matter as such. B
However, after hearing the arguments, and as we were deliberating on our decision, we realized that if Munuo J's (Mrs) order was appealable with leave, then this Court would have concurrent powers with the High Court to grant such leave. We could find no good reason for thinking that the power to C grant such leave is or should be the exclusive domain of the High Court. In that case then the matter should not have come to this Court by way of appeal from Mroso J but by way of further application under rule 44 of the Court of Appeal Rules, and in terms of rule 55(1) of the Rules it should have come before a single Judge. However, we feel very concerned that this matter, as will D be demonstrated later, has suffered an inordinate delay from 1987 through no fault of the appellants, and to have it shuttled now to a single Judge would only serve to aggravate the problem further. We are also of the settled view that even if the matter came before any one of us singly he would, on the material before the Court, undoubtedly grant leave to appeal. In short, we strongly feel that shuttling E the matter for hearing before a single Judge during the next Sessions of the Court scheduled for May next year will cause grave injustice to the appellants, having regard to the inordinate delay they have already suffered through no fault of their own. It is for this reason that we have decided to invoke the F provisions of rule 3(1) of the Court of Appeal Rules and proceed to consider the matter as a further application for leave to appeal against the order of Munuo J (Mrs).
As intimated before, Mroso J refused to grant leave because the decision of Munuo J (Mrs) did not G involve any point of law requiring consideration by this Court. With great respect to the learned Judge, however, we can find no support for that view. Upon searching through the Appellate Jurisdiction Act and the Court of Appeal Rules, we have not been able to find a provision which says that in criminal cases a person aggrieved by an order of the High Court refusing leave to appeal to H that Court out of time can come to this Court on a point of law only. Indeed we think that in practice an application for leave to appeal out of time, by its very nature, will normally involve matters of fact, such as, the date on which the applicant became aware of the judgment or decision being ap- I

A pealed against, the date he gave notice of his intention to appeal, the date he applied for a copy of proceedings, etc, etc and if, in the prosecution of his appeal he failed to do any act within the prescribed time, the reasons for such failure. Such matters, in our view, can hardly involve points of law.
B We are therefore satisfied that the learned Judge erred in requiring the applicants to raise points of law as a condition for granting leave to appeal. The learned Judge should have looked into the circumstances of the case as a whole, including the facts as deposed to in the affidavits and the way in which the application was dealt with by the Judge who handled it, and on the basis of that decide C whether or not to grant leave, if indeed leave was necessary. We say if leave was necessary because we have not been able to find any law or rule which makes an order of the High Court, in criminal cases refusing to extend time to appeal to that Court appealable with leave even though the D general practice has been that such orders are appealable with leave. Indeed rule 42(1) of the Court of Appeal Rules clearly implies that certain applications in criminal cases lie to this Court with the leave of this Court but to the best of our knowledge such applications are not specified or set out E anywhere. Be that as it may as intimated earlier the general practice has been to treat orders of the High Court, in criminal cases such as the present one as being appealable with leave. And for reasons which will be apparent presently, we are certain that had Mroso J approached the matter as outlined above he would have granted the leave sought.
F Munuo J (Mrs) found that the applicants who were convicted on 14 May 1987 did not give the requisite notice of their intention to appeal within ten days in terms of s 361(a) of the Criminal Procedure Act. She found that the appellants gave such notice only on 1 October 1990 when they G filed their affidavits in support of their applications for extension of time. She found that to be an inordinate delay and upon finding further that no good reason had been advanced for enlarging time to file Notices of Appeal, she accordingly refused the application.
H But when the applicants came before Mroso J they stated in their respective affidavits that upon their admission in prison in respect of this offence they immediately notified prison authorities of their intention to appeal. Prison authorities duly prepared the relevant notices which the applicants were made to sign on 14 May 1987. The applicants further deposed that their intention to appeal is clearly I reflected in the prison records. No counter-affidavit was

filed by the Republic to refute these claims and therefore there could be no valid ground for rejecting A them.
Again the applicants' respective proposed petitions of appeal bear endorsements by prison authorities to the effect that copy of judgment was applied for on 19 May 1987. This tends to support B the applicants' allegation on oath that they did give notices of appeal on 14 May 1987. For it is only reasonable to think that the applicants gave Notices of Appeal first on 14 May 1987 as claimed and then applied for copies of judgment on 19 May 1987 to enable them prepare the petitions of appeal.
There was, therefore, sufficient material to indicate that the applicants did give Notices of Appeal C promptly on 14 May 1987 the very date of their conviction and that they were very much in time. The fact that the said Notices are nowhere to be found is neither here nor there. They may have been mislaid by prison authorities or by the Court Registry staff. In any case the applicants have not been D contradicted when they stated on oath that they did give the requisite Notices of Appeal in time and that this was reflected in the prison records.
The applicants' respective proposed petitions of appeal mentioned earlier further bear an endorsement by prison authorities that copy of judgment was received on 16 November 1990 and E the proposed petitions of appeal were submitted on 28 November 1990. Once again this was in compliance with the provisions of s 261(b) of the Criminal Procedure Act and the proviso thereto which require an appellant to lodge his petition of appeal within forty five days of the judgment or of the day he received a copy of it. F
On the facts and circumstances of the case as re-appraised, we are satisfied that the applicants' appeals are within time. The applicants need not have applied for leave to appeal out of time in the first instance and had Mroso J properly directed himself in the matter he would have granted the G leave sought. In the result the application is allowed. The order of Munuo J is set aside. The matter is remitted to the High Court with a direction to proceed to hear the applicant's intended appeals in respect of which the said order of (Munuo J (Mrs)) was made. H