Rex v Mbetwa (Criminal Appeal No. 191 of 1948) [1948] EACA 44 (1 January 1948)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL, C. J. (Kenya), EDWARDS, C. J. (Uganda), and MARK-WILSON, AG. C. J. (Tanganyika)

REX, Respondent (Original Prosecutor) $\nu$ .

BROWN s/o MBETWA, Appellant (Original Accused) Criminal Appeal No. 191 of 1948

(Appeal from decision of H. M. High Court of Tanganyika)

- Criminal Procedure and Practice—Second Appeal—Application for leave to appeal out of time—Delay caused by ignorance of law—Appeal from summary dismissal under section 317 (1) Tanganyika Criminal Procedure Code—No matter of law arising—No right of appeal. - Held (25-10-48).—That the appellant's reason that his delay in filing an appeal was due to his ignorance of the law governing appeals was not a sufficient reason for exercising discretion in his favour; to do so would open the door wide to the reception of appeals<br>months out of time, and clearly give rise to abuse.

Application dismissed.

Appe!!ant absent, unrepresented.

Sir James Henry, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).—This is a second appeal from a conviction in the District Court of Morogoro, Tanganyika, in which the appellant craves leave to appeal out of time. His appeal to the High Court of Tanganyika was dismissed summarily on 28th April, 1948, under the provisions of section 317 of the Tanganyika Criminal Procedure Code, the learned Judge who dealt with the matter having certified that after perusing the record he was satisfied that the appeal was without substance. A copy of this order was forwarded to the gaol in which the appellant was confined. It was not until 1st July that the appellant filed an appeal to this Court. In an affidavit dated 31st July the appellant has sworn that the reason for the delay was caused by his ignorance of the law governing appeals. We cannot regard this as a sufficient reason for exercising discretion in the appellant's favour. To do so would open the door wide to the reception of appeals months out of time and would clearly give rise to abuse. Furthermore in the present case it is manifest that the appellant has no right of appeal to this Court since no matter of law arises. The basis of his appeal to the High Court was that he had been convicted by the Magistrate against the weight of evidence and the learned Judge who perused the record together with the memorandum of appeal had therefore the discretionary right to reject the appeal summarily under the provisions of the section of the Criminal Procedure Code above quoted, and no fresh matter is raised by the appellant in his memorandum of appeal to this Court which could lead us to suppose that the learned Judge exercised that discretion wrongly. His application for leave to appeal out of time is refused.

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