IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA CRIMINAL APPLICATION NO.6 OF 2014 PHILMON ZUBERI APPLICANT VERSUS

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1 IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA CRIMINAL APPLICATION NO.6 OF 2014 PHILMON ZUBERI APPLICANT VERSUS THE REPUBLIC RESPONDENT (Application for extension of time within which to file Application for Review from the Judgment of the Court of Appeal of Tanzania at Bukoba) CKileo, Luanda, Mussa, JJ.A) dated the 5 th day of March, 2014 in Criminal Appeal No. 335 of 2013 RULING 23 rd & 28 th day of February 2017 NDIKA, l.a.: The Applicant was charged with and convicted before the District Court of Chato at Chato in Criminal Case No. 42 of 2011 of the offence of rape contrary to sections 130 (1) and (2) (a) and 131 (1) of the Penal Code, Cap. 16 RE He unsuccessfully appealed to the High Court. His further appeal to this Court was dismissed on s" March Desirous of applying for a review of the aforesaid decision of this Court, while mindful that the sixty days limitation period for lodging such an 1

2 application as stated by Rule 66 (3) of the Tanzania Court of Appeal Rules, 2009 ("the Rules'') had already expired, the Applicant now moves this Court under Rule 10 of the Rules for extension of time to lodge the said application. The application is made upon a notice of motion lodged on 26 th September 2014 and is supported by the Applicant's own affidavit as well as depositions made in a supplementary affidavit sworn by Assistant Superintendent of Prisons, Z. Tibwakawa, on behalf of the Officer in Charge, Butimba Prison, Mwanza. The material part of the supporting affidavit stating the grounds for the requested extension of time is as follows: "1. Thet; I am the applicant to (sic) the instant application and equally one of the appel/ant (sic) in the original dismissed criminal appeal at Bukobe. 2. Thet; in dismissing my appeal on the gh day of March 2014 the Court of Appeal central (sic) its decision upon the claims of PW1 (complainant) as cogent and reliable to implicate the appellant on (sic) the offence of rape. 3. Thet, the applicant was (sic) received the copy of judgment on gh day of June 2014 and having gone through the judgment of the 2

3 Court of Appeal I have scanned some core misconception of the nature and quality of evidence thereby leading to such a judgment in which I seek to be revised in the interest of justice as ensured in the notice of motion. rr The supplementary affidavit of ASP Z. Tibwakawa is very brief. Nonetheless, it supports the Applicant's averments explicitly. The Applicant's solicitation is strongly resisted by the Republic. In this regard, the Respondent filed an affidavit in reply deposed by Ms. Chema Maswi, learned State Attorney. When this matter came up for hearing on 23 rd February 2017, the Applicant appeared in person. Ms. Maswi represented the respondent Republic. In his very brief address to the Court, the Applicant blamed the Prison authorities for the delay in lodging the intended application for review. Without any further elaboration, he prayed that his application be granted. Replying, Ms. Maswi faulted the application on the ground that while the supporting affidavit stated that the Applicant was supplied with a copy of the impugned judgment of this Court on 5 th June 2014, it was silent on 3

4 whether the Applicant had applied for it after the Court had delivered it on s" March She made reference to this Court's decision in Salum Nhumbuli v The Republic, Criminal Application No. 8 of 2014 (unreported) where it was held, at page 4 of the typed ruling, that: "In the present application... the applicant did not show either in his notice of motion or in his affidavit that he ever applied for the copy of the judgment. As such he cannot be heard to complain that the Court did not promptly supply him with a copy of the same because it was in first place not moved to supply him with the said copy of the judgment. " Rejoining, the Applicant maintained that it was true that the delay to lodge the review application was caused by the Prison authorities. Before dealing with the substance of this application in light of the rival submissions, I find it apposite to restate that although the Court's power for extension of time under Rule 10 of the Rules is both broad and discretionary, it can only be exercised if good cause is shown. While it may not be possible to lay down an invariable definition of good cause so as to guide the exercise of the Court's discretion in this regard, the Court must consider the merits or otherwise of the excuse cited by the applicant for 4

5 failing to meet the limitation period prescribed for taking the required step or action (see, e.g., this Court's unreported decisions in Eliya Anderson v Republic, Criminal Application No.2 of 2013; William Ngoso v Republic, Criminal Appeal NO.3 of 2014; Oar Es Salaam City Council v Jayantilal P. Rajani, Civil Application No. 27 of 1987; and Tanga Cement Company Limited v Jumanne O. Masangwa and Amos A. Mwalwanda, Civil Application No.6 of 2001). In addition, specifically for an application like this one for extension of time to apply for review, an applicant is required to establish that he has chances of succeeding in one of the grounds for review stipulated under Rule 66 (1) (a) to (e) of the Rules. In this regard, the Court in Salum Nhumbuli v The Republic (supra) referred to its earlier decision in Eliya Anderson v Republic (supra) where it was held that: '~n application for extension of time to apply for review should not be entertained unless the applicant has not only shown good cause for the detsv; but has also established by affidavit evidence, at the stage of extension of time, either implicitly or explicit/~ that if extension is qrerited, the review application would be predicated on 5

6 one or more of the grounds mentioned in paragraphs (a) or (b) or (c) or (d) of (e) of Rule 66 (1)." The above position was taken in Nyakua Orondo v The Republic, Criminal Application No.2 of 2014 and Deogratias Jeshi & Another v The Republic, Criminal Application No. 1 of 2014, both unreported decisions of the Court. When all the circumstances of the delay are taken into consideration in this matter, it is clear that Ms. Maswi's criticism, that the Applicant failed to show either in his notice of motion or the supporting affidavit that he had applied for a copy of the impugned judgment after the Court had delivered it on s" March 2014, is fully justified. Since he did not apply for a copy of the said decision, he cannot be allowed to complain that the Court did not supply him promptly with a copy of that decision. Besides, his claim that the Prison authorities were to blame for the delay is obviously hollow for two reasons: first, it was not made in the supporting affidavit; and secondly, it is a general accusation without any elaboration whether the delay by the said authorities occurred before or after he was supplied with the copy of the judgment on 5 th June Given these Circumstances,I 6

7 am disposed to find that the Applicant has failed to establish good cause for the delay. At this point, I should remark that I am mindful that the Applicant averred in Paragraph 3 of the supporting affidavit that after he received a copy of the impugned judgment, he read it and took the view that it was vitiated by a: "misconception of the nature and quality of evidence thereby leading to such a judgment in which I seek to be revised in the interest of justice as ensured in the notice of motion. " Although the Applicant did not address the Court on what he meant by the above averment, it is my view that by that averment he sought to indicate the legal basis of the intended review under Rule 66 (1) of the Rules. Having examined the above averment whose thrust appears to be a complaint that the Court misapprehended or misconceived the evidence on the record, I am firm in my mind that it does not fit within any of the five grounds enumerated in the above. For that complaint is far from a manifest error on the face of the record; or a complaint that the Applicant was deprived of the opportunity to be heard; or a claim that the decision is a nullity; or that the Court had no jurisdiction in the matter; or that the 7

8 Judgment was procured illegally or by fraud. The proposed application for review is most likely a disguised way to move the Court to sit on appeal over its own final judgment. For the reasons that I have given above, I dismiss this application in its enti rety. DATED at BUKOBA this 2ih day of February