IN
THE COURT OF APPEAL OF TANZANIA AT
MBEYA
(CORAM:
MROSO,
J.A., NSEKELA, J.A., And MSOFFE, J.A.)
CRIMINAL
APPEAL NO. 130 OF 2003
BETWEEN
AIDAN
CHALE APPELLANT
AND
THE
REPUBLIC RESPONDENT
(Appeal
from the Ruling of the High Court of Tanzania at Songea)
(Manento,
J.)
dated
12th
day of June, 2002 in
Criminal
Appeal No. 60 of 2000
JUDGMENT
MROSO,
J.A.:
This
is an appeal against a ruling of the High Court at Songea, Manento,
J, dated 12th
June, 2002. That ruling related to an objection by the appellant
against an appeal by the respondent Director of Public Prosecutions
to the High Court, who had been dissatisfied by a decision of the
District Court of Songea which was delivered on the 31st
December, 1999. The present appellant's objection was that the appeal
to the High Court by the Director of Public Prosecutions was
time-barred and ought to have been dismissed. In its ruling the High
Court agreed that the Director of Public Prosecutions (DPP) was late
to file his appeal in the High Court. Even so, the High Court, of its
own motion, sought and found "good cause" within the
meaning of section 379 (b) (ii) of the Criminal Procedure Act, 1985
to justify the admission of the DPP's appeal notwithstanding that the
period of limitation prescribed by section 379 (b) of the Criminal
Procedure Act, 1985 had elapsed. It was that decision which prompted
the appellant to come to this Court, arguing that the High Court
erred in law in extending the time to appeal suo
motu.
At
the hearing of the appeal Mr. Mbogoro, learned advocate, who appeared
for the appellant in the High Court, also represented him in this
Court. Similarly, Mr. Manyanda, learned State Attorney, also
represented the respondent DPP both in the High Court and in this
Court.
In
the High Court the following facts were undisputed. It was common
ground that the decision of the District Court was delivered on
31/12/1999. The Director of Public Prosecutions who was dissatisfied
with the decision of the District Court filed a notice of intention
to appeal to the High Court within 30 days of the date of the
decision of the District Court as required under section 379 (a) of
the Criminal Procedure Act, 1985. Copies of judgment and proceedings
for appeal purposes were ready for collection and were in fact
collected by one Assistant Inspector of Police Lugome on 10th
May,
2000. The petition of appeal was filed on 14th
September, 2000.
Section
379 (b) of the Criminal Procedure Act, 1985 requires the DPP to lodge
his petition of appeal within 45 days from the date of the acquittal,
finding, sentence or order against which the appeal is intended.
However, in reckoning the 45 days within which to lodge an appeal,
the time requisite for obtaining a copy of the judgment and
proceedings will be excluded. So, on the facts, the period between
31/12/1999 and 10th
May, 2000 would be excluded. It would follow, therefore, that 45 days
would be reckoned from 10th
May,
2000, meaning that the DPP was expected to have filed his appeal by
24th
of June, 2000.
Mr.
Manyanda, however, argued before the High Court that although
Assistant Inspector Lugome collected the document from the District
Court on 10th
May, 2000,
they
were not taken to the Chambers of the Attorney General for the
preparation of the petition of appeal until on 13th
September, 2000.
According
to
Mr.
Manyanda, the 45 days would be reckoned from that date and when the
petition of appeal was lodged on 14th
September, 2000,
it
was in time.
The
High Court quite rightly rejected that argument and found that there
had been negligence on the part of the office of the DPP. Since the
DPP's contention was that its appeal to the High Court had been
lodged within the period of limitation he did not advance any reasons
for delay and did not seek extension of time within which to
lodge
his appeal. It was in those circumstances that the High Court took it
upon itself to look for and find reasons for admitting the appeal,
even though the period of limitation had elapsed, by purporting to
act under s. 379 (b) (ii) of the Criminal Procedure Act, 1985.
In
trying to find justification to extend, suo
motu,
the
period for lodging the appeal by the DPP the High Court said -
''(U)nder
section 379 (b) (ii) of the Criminal Procedure Act, 1985, the High
Court may, for good cause admit an appeal notwithstanding that the
periods of limitation prescribed in this section have elapsed. I am
afraid that the learned State Attorney did not make any submissions
as to whether, in the alternative, without prejudice to his earlier
submission, were good cause to admit the appeal out of time. On
reading the petition of appeal, I see two grounds which I consider
good cause. That is the non failure (sic) by the subordinate court
to make an order in regard to Shs. 160,000/= produced as exhibit. To
whom should the money be given or it should stay in court's (sic)
indefinitely. Its owner must be known. Secondly, there was an issue
of the sentence imposed, if the court was entitled to impose the
sentence it imposed, or it was to impose any other sentence provided
by the law. Those two reasons are really good cause to admit the
appeal out of time in order that those legal issues are cleared by
this court."
Mr.
Mbogoro has argued strongly before us that the learned High Court
judge erred in so construing the meaning of the phrase good cause"
as it appears in section 379 (b) (ii) of the Criminal Procedure Act,
1985. He contends that the phrase "good cause" as it
appears in the section implies that the court has been presented by
the intending appellant with reasons for their failure to lodge the
appeal within the prescribed time and after hearing what the
prospective respondent has to say about the reasons advanced by the
intending appellant, finds that good, convincing excuse has been
disclosed. Such good, convincing excuse is what is envisaged in
section 379 (b) (ii) to be "good cause" for admitting the
appeal out of time. Mr. Mbogoro continued to argue that since the
respondent DPP had wrongly contended that his appeal was in time
and, therefore, gave no excuse for the delay in lodging the appeal,
it was not the business of the court to invent an application to it
for extension of time and provide to itself reasons which it judged
amounted to "good cause," and admit the appeal which was
time barred.
Mr.
Manyanda, on the other hand, defended the judge's approach and
argued that the phrase "good cause" had a broader meaning
than that which was suggested by Mr. Mbogoro. He argued that "good
cause" within the context also includes the need for an appeal
to be heard because, for example, the interests of justice require
that an appeal be admitted so as to correct certain legal anomalies.
In such a situation an appellate court may take it upon itself to
admit an appeal by the DPP where it was time-barred, even in the
absence of an application for enlargement of time. He said that the
question raised by the High Court regarding the disposal of the cash
exhibit of Shs. 160,000/= was one of the DPP's grounds of appeal
and, therefore, it was proper for the High Court to consider it as
good reason (good cause) for admitting the appeal out of time even
though there was no application for enlargement of time. He prayed
that the Court dismiss the appeal.
Neither
counsel was able to cite to us any case in which the phrase "good
cause" was judicially considered. Our own research, however,
brought us to a case outside the jurisdiction in which the phrase
was considered as having a similar meaning to the words -"good
and sufficient cause."
In
R.
v. Central Criminal Court, ex
parte Abu
Warden
[1997]
1 All ER 159 an applicant was committed in custody for trial at the
Central Criminal Court before a High Court Judge, together with
three co-defendants, charged with conspiracy to cause explosions.
After
an initial postponement, the trial date was eventually fixed for 1st
October, 1996, the judge originally designated to try the case
having withdrawn and the new judge assigned in his place being
unable to start the trial then. Thereafter, the Recorder extended
the custody time limit to a new trial date giving the following
reasons:-that no other suitable judge would be available before
then; that protection of the public might be at risk and that it was
desirable that all the defendants should be tried together. The
applicant applied for judicial review of the recorder's decision,
contending that none of the reasons relied on by the recorder
amounted to "good and sufficient cause" within the meaning
in section 22 (3) of the Prosecution of Offences (Custody Time
Limits) Regulations, 1987, regulation 5.
Regulation
5, so far as material, provided: "... the maximum period of
custody between the preferment of the bill and the accused's
arraignment shall be 112 days ... ." Section 22 (3), so far as
material read:- "The appropriate court may, at any time before
the expiry of a time limit imposed by the regulations, extend, or
further extend, that limit if it is satisfied - (a) that there is
good and sufficient cause for doing so ... ."
Auld,
LJ. of the Queens Bench Division held that for purposes of s. 22 (3)
of the 1985 Act, "good cause" consisted of some good
reason for the sought postponement of the trial carrying with it the
need to extend the custody limit time. Since the many defendants
facing serious charges were remanded in custody for the protection
of others, Parliament could not have intended that the original
reason for custody could in itself be a good cause for extending the
custody time limit. It followed that the protection of the public
could not be good and sufficient cause for doing so. However, the
unavailability of a judge or court to try a defendant in custody
could in law amount to a "good and sufficient cause", as
could also the interest of justice that jointly charged defendants
be tried together. Accordingly as the recorder had taken into
account all the relevant circumstances, his conclusion that there
was "good and sufficient cause" to justify extending the
custody limits could not be held to be perverse.
In
the case cited the prosecution had applied to the recorder for the
further extension beyond the custody time limit and the only issue
before the recorder was whether there was "good and sufficient
cause" for extending the time limit. There was no suggestion
that the Prosecution had not acted with all due expedition. In his
ruling the recorder found there was good and sufficient cause for
granting the prosecution's application, and the High Court upheld
that decision.
As
indicated above, the recorder in the case cited was able to find the
existence of "good and sufficient cause" upon application
by the prosecution for extension of custody time limit. In the case
before us no application was made to the High Court by the DPP for
extension of the time limit to appeal. We are constrained to agree
with Mr. Mbogoro, therefore, that it was not proper for the High
Court, in the absence of any application to it, to imagine the
existence of an application, to create reasons for the application
and then agree that those reasons amounted to "good cause"
within the meaning of Section 379 (b) (ii) of the Criminal Procedure
Act, 1985 for admitting the DPP's appeal out of time.
The
next point we wish to consider is whether, assuming the High Court
could act suo
motu
by
resorting to section 379 (b) (ii), the reasons it gave amounted to
"good cause" within the meaning of the section.
Section
379 reads -
"379.
No appeal under section 370 (sic) (378?) shall be entertained unless
the Director of Public Prosecutions -
(a)
(b) shall
have lodged his petition of appeal within forty-five days from the
date of such acquittal, finding, sentence or order; save that -
(i)
(ii)
the High Court may for good cause admit an appeal notwithstanding
that the periods of limitation prescribed in this section have
elapsed."
In
R.
v. Governor of Winchester Prison, ex
p
Roddie
[1991]
2 All ER 931, at page 934 Lloyd, L.J. said "good cause"
will usually consist of some good reason why that which is sought
should be granted. It does not have to be something exceptional. "To
amount to "good cause" there must be some good reason for
what is sought." It was considered that it was undesirable to
define "good cause" and that it should be left to the good
sense of the tribunal which has to decide whether or not good cause
has been disclosed. We would accept that reason as correct in law.
Would
a ground or the grounds of the intended appeal constitute "good
cause" for admitting an appeal out of time? Mr. Manyanda argued
that it was possible, especially so if it would be in the public
interest or in the interest of justice that the appeal should be
admitted.
We
think that there is nothing inherently wrong in a court to which an
application has been made to consider all or any of those matters as
"good cause" for admitting an appeal out of time. But we
have to come back to the same point, that a court should not act suo
motu
in
favour of a party by assuming the existence of a request to it to
extend the period limited by statute for bringing an appeal to it.
To do so could lead to a subversion of the very purpose for which a
limitation period to appeal was statutorily fixed for both the
private individual and the Director of Public Prosecutions.
We
hold that the learned High Court judge erred in assuming the role of
an applicant and in finding that "good cause" existed for
admitting the appeal out of time. We allow the appeal.
DATED
at DAR ES SALAAM this 10th
day of June, 2004.
J.A.
MROSO
JUSTICE
OF APPEAL
H.R.
NSEKELA
JUSTICE
OF APPEAL
J.H.
MSOFFE
JUSTICE
OF APPEAL
I
certify that this is a true copy of the original.
(
S.AJMVAMBURA )
SENIOR
DEPUTY REGISTRAR
