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

Similar documents
1. YUSUFU SAME 2. HAWA DADA APPELLANTS VERSUS

In this application, the applicant has moved the Court to review its. decision in Criminal Appeals Nos. 128 and 129 of 2007.

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) JUDGMENT

In the Resident Magistrate Court of Shinyanga sitting at Shinyanga, the appellant KAUNGUZA S/O MACHEMBA was charged with four counts.

SELEMANI RAJABU MIZINO... APPLICANT VERSUS 1. SHABIR EBRAHIM BHAIJEE 2. FAYEZA SHABIR BHAIJEE... RESPONDENTS 3. HUZAIRA SHABIR BHAIJEE

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM. (CORAM: MROSO, J. A, MSOFFE, J. A. AND KAJI, J. A.) CIVIL REFERECE NO.

IN THE FAIR COMPETITION TRIBUNAL AT DAR ES SALAAM TRIBUNAL APPEAL NO. 3 OF 2013 TANZANIA ELECTRIC SUPPLY CO. LTD...APPELLANT VERSUS JUDGMENT

REGIONAL MANAGER, TANROADS KAGERA.. APPLICANT VERSUS RUAHA CONCRETE COMPANY LIMITED... RESPONDENT

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CORAM: RAMADHANI, J. A. NSEKELA, J. A. AND KAJI, J. A. CIVIL APPLICATION NO.

This is an application for review by Majid It was brought by way of a notice of motion which was filed on

ELIGI EDWARD MASSAWE AND THREE OTHERS (On behalf of 104 others)..applicants ATTORNEY GENERAL AND TWO OTHERS...RESPONDENTS

Civil Appeal No 4 of 2003 in the court of Appeal of Tanzania at Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT OAR ES SALAAM. (CORAM: KIMARO,J.A., MASSATI,J.A., And MUGASHA,J.A.) CIVIL APPLICATION NO.

IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT OAR ES SALAAM MISC.COMMERCIAL CAUSE NO.70 OF 2013 VERSUS

This is an application for extension of time within which to lodge an. application for leave to appeal against the decision of the High Court sitting

RULING OF THE COURT. The third respondent herein, Elias K. Musiba, used to be an employee

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM

Citation Parties Legal Principles Discussed

THE UNITED REPUBLIC OF TANZANIA THE TAX REVENUE APPEALS ACT CHAPTER 408 REVISED EDITION 2006

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL REFERENCE NO.12 OF 2004 DAVID MWAKIKUNGA. APPELANT VERSUS

In this application made under Rule 11 (2) (b) of the Court of. Appeal Rules, 2009, the applicant, Indian Ocean Hotels Ltd. t/a

THE DIRECTOR OF PUBLIC PROSECUTIONS APPELLANT VERSUS MT SGT FABIAN KIMARO.. RESPONDENT

IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CRIMINAL PROCEDURE. Reserved on : Date of decision :

AT DODOMA. (CORAM: MSOFFE,J.A., RUTAKANGWA,J.A. And BWANA,J.A.) CRIMINAL APPLICATION NO. 4 OF 2007 KARIM KIARA...APPLLICANT VERSUS

(CORAM: LUBUVA, J.A., MROSO, J.A., And RUTAKANGWA, J.A.)

Through : Mr. A.K.Singla, Sr.Advocate with Mr.Pankaj Gupta and Ms.Promila K.Dhar Advocates. Versus

appeal, it is desirable to state the following, albeit briefly.

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA LUBUVA, J.A., MROSO, J.A. AND RUTAKANGWA, J.A.) CRIMINAL APPLICATION NO.3 OF 2005

IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : BORDER SECURITY FORCE ACT, 1968 Date of Decision: W.P.(C) No.

W.P.(C) No.5740 of 2001 P R E S E N T HON BLE MR. JUSTICE NARENDRA NATH TIWARI

IN THE HIGH COURT OFT AN ZAN IA (COMMERCIAL DIVTSfON) AT DAR ES SALAAM

RAMADHANI, C.J., LUBUVA, J.A. And NSEKELA, J.A.) KAPINGA & COMPANY ADVOCATES... APPELLANT VERSUS NATIONAL BANK OF COMMERCE LIMITED...

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM

Ghana: Ghana Commercial Bank Ltd v Commission on Human Rights and Administrative Justice (2003) A Justice (2003) AHRLR 163 (GhSC 2003)

IN THE HIGH COURT OF TANZANIA (DARE S SALAAM MAIN REGISTRY) AT DAR ES SALAAM MISCELLANEOUS CIVIL APPLICATION NO. 36 OF

THE GAUHATI HIGH COURT AT GUWAHATI

Communication 243/2001, Women's Legal Aid Center (on behalf of Sophia Moto) v Tanzania

THE UNITED REPUBLIC OF TANZANIA. GOVERNMENT NOTICE NO 205 published on 22/7/2005. THE PUBLIC PROCUREMENT ACT, 2004 (ACT No.

IN THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA FIRST INSTANCE DIVISION. (Coram: Johnston Busingye, PJ, John Mkwawa, J, Isaac Lenaola, J.

In the High Court of Tanzania at Mwanza the appellant and two. others were charged with murder c/s 196 of the Penal Code. It was

EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL

GOVERNMENT NOTICE NO published on. THE APPELLATE JURISDICTION ACT (CAP.141) RULES. (fv1ade under section 12) THE TANZANI COURT OF APPEAL RULES, 2009

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL SESSION CASE NO. 36 OF 2003 REPUBLIC VERSUS PROCEEDINGS

In this omnibus application there are two basic prayers. Extension of time to file an application for leave to appeal AND leave

IN THE HIGH COURT OF TANZANIA AT OAR ES SALAAM RULING

[SUBSECTIONS (a) AND (b) ARE UNCHANGED]

This is an application for revision in terms of the provisions of

THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA (CORAM:MARY STELLA ARACH-AMOKO,DPJ)

IN THE HIGH COURT OF JUSTICE

SUBSIDIARY LEGISLATION

Ar_JlAB K~ ~bij.bb.m

Department of Labor Relations TABLE OF CONTENTS. Connecticut State Labor Relations Act. Article I. Description of Organization and Definitions

IN THE HIGH COURT OF JHARKHAND AT RANCHI. W.P. (L) No of 2008

IN THE COURT OF APPEAL OF BELIZE, A.D. 2006

IN THE HIGH COURT OF DELHI AT NEW DELHI. Crl. Rev. P. No.286/2009

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISCELLANIOUS CIVIL APPLICATION NO. 43 OF 2017 MANSOR AND

John Swaka v The Director of Public Prosecutions & 2 others [2013] eklr

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM

(CORAM: NSEKELA, J.A., KILEO, J.A. And BWANA, J.A.) CIVIL APPEAL NO. 26 OF 2008

HIGH COURT (BISHO) JUDGMENT. This is an appeal against the refusal of the regional magistrate, who

THE SUMATRA (COMPLAINTS AND REVIEW PROCEDURE) RULES, 2008

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPEAL NO. 408 OF 2018 (Arising out of S.L.P.(Crl.)No.

JUDGMENT OF THE COURT. The appellants were charged in the High Court of Tanzania, at

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

IN THE RETIREMENT BENEFITS APPEALS TRIBUNAL AT NAIROBI. CIVIL APPEAL No. 1 of CPF Financial Services Limited Appellants -VERSUS

IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE, MTHATHA CASE NO: 563/2008

% L.A. APPEAL NO. 738 OF Date of Decision: 13 th October, # UNION OF INDIA...Appellant! Through: Mr. Sanjay Poddar, Advocate

2yh August, Supplement No THE BASIC RIGHTS AND DUTIES ENFORCEMENT (CAP.

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION. CIVIL APPEAL NO Of 2011 SRI MAHABIR PROSAD CHOUDHARY...APPELLANT(S) VERSUS

THE PROCUREMENT AND SUPPLIES PROFESSIONALS AND TECHNICIANS BOARD ACT, 2019 (CAP 179) REGULATIONS ARRANGEMENT OF REGULATIONS

THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA, AT KAMPALA

IN THE HIGH COURT OF DELHI AT NEW DELHI. SUBJECT : Negotiable Instruments Act. Judgement reserved on: January 07, 2009

IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SUIT FOR RECOVERY Date of decision: 17th July, 2013 RFA 383/2012. Versus

IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : INDIAN PENAL CODE CRL.M.C. No. 233/2014 Date of decision: 14th February, 2014.

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Ru, 2018 NSSC 155. Dai Ru. Her Majesty the Queen

1 ST ADILI BANCORP LIMITED.APPELLANT VERSUS ISSA HUSSEIN SAMMA...RESPONDENT

Special Appeal No. 390 of 2018

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION. CIVIL APPEAL Nos OF 2017 (ARISING OUT OF SLP (CIVIL) Nos.

WEST AFRICAN EXAMINATIONS COUNCIL & ORS V. MRS. NKOYO EDET IKANG & ORS CITATION: (2011) LPELR-5098(CA)

IN THE HIGH COURT OF JUSTICE BETWEEN RUBY THOMPSON-BODDIE LENORE HARRIS AND THE CABINET OF TRINIDAD AND TOBAGO

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPEAL NO OF 2017 (Arising out of SLP(Crl.) No.

IN THE COURT OF APPEAL OF TANZANIA AT TABORA. (CORAM: MSOFFE, J.A., KIMARO, J.A., And MJASIRI, J.A.) CRIMINAL APPEAL NO.

This is an application for extension of time in which to.applyfor. leave to appeal out of time. The matter relates to High Court Civil

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE

(Original/TAN/CMA/28/2008)

IN THE HIGH COURT OF JUSTICE (Sub-Registry-Tobago) BETWEEN AND. Ms. D. Christopher-Noel; Mr. R. Singh and Ms. G. Jackman instructed by Ms. F.

The appellants, through the services of the Women's Legal Aid. Centre (WLAC) lodged the present appeal to challenge the dismissal of

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2020 OF 2013 LT. COL. VIJAYNATH JHA APPELLANT(S) VERSUS

CRIMINAL PROCEDURE CODE

Charles De Barbier and another v Roland Leduc HCVAP 2008/010

STAY OF EXECUTION-whether the application has been overtakenusually,

IN THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA-1 ST INSTANCE DIVISION

UGANDA

In the District court of Moshi, the appellant Omary Majid was. charged with and convicted of Armed Robbery contrary to sections

THE REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA WESTERN CAPE DIVISION, CAPE TOWN

Citation Parties Legal Principles Discussed. Valambhia, Civil Application No.18 of 1993 (Unreported). J.A, NSEKELA, - that it has inherent J.

Through: Mr. Deepak Khosla, Petitioner in person.

IN THE HIGH COURT OF JHARKHAND AT RANCHI

N. Harihara Krishnan vs J. Thomas on 30 August, 2017 REPORTABLE. CRIMINAL APPEAL NO OF 2017 (Arising out of SLP(Crl.) No.

Rules made by the High Court under Article 227 of the. Constitution of India Relating to Appeals under Section

Transcription:

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 2002. He unsuccessfully appealed to the High Court. His further appeal to this Court was dismissed on s" March 2014. 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

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

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

whether the Applicant had applied for it after the Court had delivered it on s" March 2014. 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

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 Ndingu @ 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

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 Nicholaus @ 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 2014. Given these Circumstances,I 6

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

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 2017. 8