ALBERT ELISHA MAPUGA VS PARATU

IN THE HIGH COURT OF TANZANIA

DODOMA SUB REGISTRY

AT DODOMA CRIMINAL APPEAL NO 18605 OF 2024 (Arising from Judgment in Criminal Appeal No. 7616/2024, of District Court of Kongwa, dated 30th May 2024, Originating from Judgment and sentence of the Primary Court of Kongwa in Criminal Case No. 100/2023 delivered on 20th February 2024)

BETWEEN ALBERT ELISHA MAPUGA……………………………………….…………. APPELLANT

VERSUS MSHANDOO PARUTU…………………………………………...………...RESPONDENT

JUDGMENT Date of last order: 18/09/2024 Date of the Judgment: 13/11/2024 LONGOPA, J.: The appellant stood charged, convicted and sentence for disobedience of lawful orders contrary to Section 124 of the Penal Code, Cap 16 R.E. 2022 by Kongwa Urban Primary Court. It was alleged that appellant herein disobeyed the order to maintain the status quo over land that was in dispute between the appellant and respondent whereby the District Land and Housing Tribunal restrained that no party should use the piece of farm land until and unless the matter is fully resolved through 1|Page determination. However, the appellant refused to comply with such order. Thus, the institution of criminal case for disobedience of lawful order. The appellant was dissatisfied by the decision of the Kongwa Urban Primary Court thus preferred an appeal to the District Court which confirmed conviction but corrected the sentence on 30th May 2024. That being the case, the appellant dissatisfied with the whole decisions from Kongwa District court in Criminal Appeal No. 7616 of 2024 preferred a further appeal on 5th July 2024 on the following grounds, namely: 1. The appellate court error in law by expunged the written submission written in English and denial the right of being heard from appellate.

2. That the appellate court error in law and fact by failure to re-assess and re-evaluate the entire evidence of each witness. On 18th September 2024 when the matter was set for hearing, the parties applied for disposal of matter through written submissions which 2|Page was consented by the Court. The parties complied to the scheduling orders and filed all their respective submissions timely. The appellant in his written submission argued that in respect of 1st ground of appeal that there an error for the first appellate to expunge the written submissions written in English language and thereby denying the appellant’s right to be heard. It was stated that the position of the law in the case of Pili Ernest versus Moshi Musani, Civil Appeal No. 39 of 2019, Court of Appeal of Tanzania at Mwanza, the Court observed at page 5 of the judgment as follows: - “The right to a party to be heard before action is taken against such party has been stated and emphasized by the courts in numerous decisions. That right is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach of natural justice.” It is reiterated further that the Court of Appeal held at page 7 of the judgment that: “We are satisfied that the parties were denied the right

to 3|Page be heard on the crucial question that the first learned appellate magistrate had raised and we are further satisfied that the denial was in violation of the fundamental constitutional right to be heard and the parties were prejudiced. This renders the judgment of the District Court a nullity.” Further, the appellant stated that this court be pleased to determine the issue as to whether the first appellate Court afforded the parties the right to be heard on the issue raised suo motto before pronouncing judgment. It was the appellant’s humble submission that the first appellate Court did not afford the parties before itself the opportunity to address it on the issue of use of English language and effect thereof. The first appellate Court held at pages 2 and 3 of its judgment, inter alia, that: “Jalada lilipokuja kwa ajili ya mahakama kuandika hukumu, nimeona mawasilisho ya wadaawa yote yameandikwa kiingereza hakuna nakala za Kiswahili. Hii ni sawa na kusema shauri hili linasikilizwa kwa kiingereza. Baada ya mabadiliko ya sheria kuhusu lugha ya mahakama yaani kifungu cha 84A na 53(2) vya Sheria ya Tafsiri ya Sheria 4|Page [Sura ya 1 ya Sheria za Tanzania], na Kanuni inayoongoza matumizi ya lugha ya Kiingereza Mahakamani iitwayo INTERPRETATION OF LAWS (USE OF ENGLISH LANGUAGE IN COURTS)(CIRCUMSTANCES AND CONDITIONS) RULES 2022, au kwa urahisi inaweza kuitwa ni TANGAZO

LA SERIKALI Na. 66/2022, hususan Kanuni ya 4(1)(b) ya Kanuni tajwa hapo juu, mdaawa anayetaka kiingereza kitumike katika mwenendo wa Shauri anapaswa kutoa sababu ya kuifanya Mwenendo wa Shauri husika uwe kwa lugha ya Kiingereza. Jambo hili halikufanyika, wala mahakama haikutoa maelekezo hayo, kama Kanuni ya 4(2)(a) ya Kanuni hizo inavyotaka…. Kwa sababu hiyo mawasilisho hayo ya pande mbili yaliyowasilishwa kwa Kiingereza, yanawekwa kando, hayawezi kuwa sehemu ya mwenendo wa shauri hili linalosikilizwa kwa Kiswahili.” It was argued that the extract is clear that the first appellate court raised the issue as to use of language suo motto without affording the 5|Page parties therein right to be heard. The first ground suffices to dispose this appeal. The appellant went on to argued that pleadings and submissions are different both in meaning and operation. This is the position of the law in the case of Luhumbo Investment Limited versus National Bank of Commerce Limited and 2 Others, in Civil Appeal No. 503 of 2010, Court of Appeal of Tanzania, at Shinyanga. In the cited case, it was stated at page 9 of the Judgment that: “It is trite law that parties are bound by their own pleadings. At any standard, written submissions and its annexures do not form part of the pleadings and the same are not intended to submit new facts or evidence but only to elaborate on the facts and/or evidence

already indicated in pleadings.” The appellant cited definition of the term pleading as illustrated in the case of Red Dot Distributors Limited versus Hakam Investment Limited, in Miscellaneous Commercial Cause No. 28 of 2021, High Court of the United Republic of Tanzania, Commercial Division, at Dar Es Salaam where an affidavit or a counter affidavit, a petition or an answer to a 6|Page petition, a plaint or a written statement of defence, a counter claim or a reply to, were stated as what the law regards as pleadings. It was argued that the first appellate Court erroneously included the written submission within the ambit of the definition of pleading and thereby occasioning miscarriage of justice to the appellant’s detriment. On the second ground of appeal that it was reiterated that there was failure to re-evaluate and re-assess the entire evidence of each witness and failing to come to its own findings and conclusion on the contested facts in issue hence arriving at a wrong decision at the detriment of the appellant and thereby misapprehending the substance of evidence on record. The case of Martha Michael Wejja versus Hon. Attorney General and Others [1982] TLR 35 where it was held, inter alia, that: “in a first appeal the court is entitled to look at and evaluate the evidence afresh and come to its own conclusion, particularly where the learned trial judge adopted a

wrong approach in evaluating the evidence or omits to evaluate some of witnesses or to consider some vital piece of evidence.” 7|Page It was argued that the available record is clear that the first appellate Court abdicated from its duty as established at pages 3, 4 and 5 of the judgment of the first appellate Court that the said Court purported to have dealt with the record of trial Court generally and found at page 5 that “…mrufani pamoja na kuwa aliipata amri hiyo lakini alikaidi kuitii jambo ambalo kwa ushahidi uliopokelewa na Mahakama ya awali ni dharau kwa mahakama hiyo ya ardhi.” According to appellant, that finding was a serious misapprehension of the available record does not support such findings. The issue that remains unresolved is whether the Order in issue was served to the appellant as such appellant reiterated that there was no disobedience of the Order in issue, in absence of service of the said Order which was issued ex-parte in the appellant’s absence. It was reiterated that there is no affidavit of proof of service neither of the Summons nor the Order in issue as prescribed under Regulation 6(4)(a) of the Land Disputes Courts (The District Land and Housing Tribunals) Regulations, 2002, GN. No. 174 of 2003. Apparently, the first 8|Page appellate Court failed to appreciate the fact that the trial court misapprehended the mandatory legal requirement of proof of

service by swearing of the affidavit in the prescribed form indicating the manner in which the service has been effected to the appellant. The principle in the case of Maswi Drilling Company Limited versus Chato District Council and Another, Civil Case No. 37 of 2002, Mwanza District Registry, was cited at t page 11, where it stated that: “the plaintiff was expected to show that service was done to the defendants and by which mode. That facts were supposed to be backed up with the records showing proof of service in order to prove the pleaded facts rather than mere words stated in the submissions as the same does not prove if the service was done.” It was argued that first appellate Court failure was attributed misapprehension resulting failure to determine the grounds of appeal separately and without giving reasons for such failure. The appellant cited the case Firmon Mlowe versus the Republic, Criminal Appeal No. 504 of 2020, Court of Appeal of Tanzania, at Iringa. 9|Page It was appellant argument that there is no dispute that the most decisive issue is that of jurisdiction of the trial Court as raised in fifth ground of appeal before the first appellate Court. It was submitted that the first appellate Court misapprehended the position of law in the case of Tanzania Revenue Authority versus Tango Transport Company Limited, Civil Appeal N. 84 of 2009, Court of Appeal where it

was stated, inter alia, that: “The law is well settled and Mr. Bundala is perfectly correct that a question of jurisdiction can be belatedly raised and canvased even on appeal by the parties or the court suo motto, as it goes to the root of the trial.” It was the appellant’s prayer that appeal be allowed; and the decision, the judgment, conviction and sentence of the first appellate court and trial Court be quashed and set aside. The respondent turn took up the matter and argued at the outset that the appellant was challenging the decision of District Court of Kongwa in Criminal Appeal No. 7616/2024 from original decision of the District Primary Court of Kongwa at Kongwa in Criminal Case No. 100/2023. 10 | P a g e The respondent invited this court to take judicial notice of its records at the e-Case Management System to appreciate to the filing date of the appeal. It was argued that the appeal was filed on the 5th of July, 2024 about five days late after the expiry of thirty (30) days within which he was required under law to file the same. The appeal was preferred beyond time. It was argued that this appeal was lodge against the decision of the District Court of Kongwa in the exercise of its appellate jurisdiction under sections 20 and 21 of the Magistrates Courts Act [Cap 11 R. 2019]. It is not an appeal against the decision of the District Court in the exercise of

its original jurisdiction. Thus, appeal is governed by the provisions of section 25(1)(a) and (b) of the Magistrates Courts Act. This provision was not complied with. It was argued that it would appear that appellant had in mind a given period of forty-five (45) days provided under section 379(1)(b) of the Criminal Procedures Act [Cap 20 R.E 2022] that only relates to original jurisdiction of District Court. The case of Luhumbo Investment Limited v. National Bank of Commerce Limited and 3 Others, Civil Appeal 11 | P a g e No. 503 of 2020, Court of Appeal, Shinyanga (Unreported) at pp. 15 and 16, was cited to illustrate holding that: “However, unfortunate it may be for the Plaintiff, the law of limitation is on actions, knows no sympathy or equity. It is a merciless sword that cuts across and deep into all those who get caught in its web”. At this juncture, this Court was invited to dismiss the appeal for being preferred hopelessly out of time. In respect of the first ground, it was submitted that such ground of appeal was misconceived, as there was no denial of right to be heard to the parties. That is the reason that the first appellate court proceeded to determine the appeal on the basis of the evidence adduced by the parties the trial court. It was argued that at the time of composing its judgment the said appellate District Court, suo motto, engaged to determine the

propriety of the written submissions prepared by the parties herein in Swahili language without affording them the opportunity to address it on the matter. It was reiterated that appellate District Court did consider the grounds of appeal raised by the appellant and proceeded to determine the same on the basis 12 | P a g e of the evidence given by the parties during trial at the District Primary Court of Kongwa at Kongwa. It was argued that though the first appellate court was duty bound to afford the parties the opportunity to address it on the matter language of the submission, the respondent was of the view that the Court considered all the grounds raised by appellant and proceeded to determine the appeal and assessed the evidence given during trial to come to its decision thus the appellant cannot claim to have prejudiced of his right to be heard on the substance of his appeal. The respondent cited the case of Luhumbo Investment Limited v. National Bank of Commerce Limited and 3 Others (supra) at p.9, to reiterate that: “At any standard, written submissions and its annexures do not form part of the pleadings and the same are not intended to submit new facts or evidence but only to elaborate on the facts and/or evidence already indicated in the pleading”. In respect of the second ground, it was submitted that the decision of first appellate court at pp. 4 and 5 noted that

the offence to which the appellant stood charged is founded under section 124 of the Penal Code 13 | P a g e [Cap 16 R.E 2022] and as this Court once said in Hemed Kajunjumele v. Republic [1984] TLR 208, what the respondent needed to prove in substantiating the commission of the offence was whether there was an order by a Court that is backed up by a specific legislation, restraining the appellant, his agents, and whether the said order has been disobeyed. It was argued that that the proceedings in Misc. Land Application No. 4 of 2023 had their origin in Land Application No. 16 of 2023 and in both cases the both appellant and respondent were parties. It meant that more certain, that appellant was not only aware of the existence of both cases but also, of the order rendered in Misc. Land Application No. 4 of 2023 restraining him his agents and workers from developing, cultivating, building or selling the suit land pending hearing of Land Application No. 16 of 2023. It was appropriate for the appellant to be convicted of the offence since what transpired at the trial Court was a question of disobeying the order rendered in Misc. Land Application No. 4 of 2023, the trial Court cannot be faulted for failure to ascertain if the District Land and Housing Tribunal complied with the provisions of Regulation 6(4)(a) of the Land 14 | P a g e Disputes Courts (the District Land and Housing

Tribunals) Regulations, 2003. Such matter could best be argued at and determined by the District Land and Housing Tribunal itself. It was argued that the Primary Court was not seized with a land dispute jurisdiction but it was called upon to determine breach of a penal law demanding obedience of a lawful order. Thus, the decisions of both Primary Court and fist appellate court were appropriate as there was breach of lawful order recognised by the law. The respondent concluded that issues of jurisdiction can be raised at any stage of the proceedings. It was submitted that in respondent’s considered opinion that this appeal is overtaken by events as appellant had admitted to have already served the sentence meted out against him thus the appeal be dismissed. In rejoinder, the appellant noted that respondent’s counsel raised preliminary point of law that the appeal is time barred. However, the appellant argued that that the same is not a pure point of law as the position of the law in the case of Mukisa Biscuit Manufacturing Ltd [1969] 15 | P a g e EA 696 where it was held that objections should be raised on a pure point of law, and cannot be raised if any fact has to be ascertained. The appellant stated that the Petition of Appeal was ready on 21st day of June, 2024 but the appellant faced technical challenges thus sought assistance from the Court’s ICT officer. The appellant

cited the case of Josiah Zephania Warioba vs Bouygues Energies and Services, Miscellaneous Application No. 28 of 2021, High Court of Tanzania, Labour Division, at Arusha where it was held that according to the Electronic Filing Rule 10 of the G.N. No. 148 Judicature and Application of Laws Act (Electronic Filing), Rules, 2018, a document is deemed to have been filed when it is submitted and admitted. A party cannot be condemned due to technical error caused by the judicial staff, be it due to laxity or negligence on the party of the Court’s staff or technical error in the filing system.” It was argued that the appeal was filed timely. It was reiterated that the position of the law was held in the case of Director of Public Prosecutions versus Said Saleh Ali, Criminal Appeal No. 476 of 2017 TZCA, at page 18 where it noted “…it is worthy 16 | P a g e note that arguing application/appeal by way of written submission is synonymous with presenting oral submissions before the Court. Thus, if a party fails to file his/her submission on a scheduled date it is equated as if he/she failed to appear on hearing date with a consequence of dismissing the matter before the Court.” Thus, appellant argued that expunging of the written submission is tantamount to expunging the oral submissions before the first appellate Court. The appellant reiterated all the contents of submission in chief to

point out that both grounds have merits. Having considered the detailed rival submissions of the parties, it is lucid that parties have raised and argued about preliminary point of objection relating to time limitation. It was argued that the appeal was filed well beyond time thus hopeless before this Court. I am of the view that this is very fundamental aspect that cannot be left an unattended as it goes to the root on appropriateness of the appeal. It is settled law in this jurisdiction that preliminary objection must be raised in relation to points of law and not something that would require evidence. Normally, the preliminary objection is determined prior to the 17 | P a g e parties being heard on merits. The reason is simple and straight forward as the preliminary objections relate to the law of limitation, jurisdiction and presence of arbitral clause in an agreement requiring parties to undergo arbitration proceedings prior to resorting to court’s intervention as the same might terminate the proceedings once for all without compelling parties to argue the merits of the case. Illustratively, the case of COTWU (T) OTTU Union and Another vs Hon. Iddi Simba, Minister of Industries and Trade and 7 Others (Civil Application 40 of 2000) [2000] TZCA 14 (30 June 2000) (TANZLII), at page 3, the Court of Appeal stated that: In Mukisa Biscuit Manufacturing Co. Ltd. v. West End

Distributors Ltd. [1969] E.A. 696 where the Court considered what constitutes a preliminary objection. The Court said at p. 700 DE:- a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea 18 | P a g e of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. The nature of preliminary objection if upheld goes to the root of the case. That is the reason for same being determined prior to hearing the parties on merits. In ABSA Bank Tanzania Limited & Another vs Hjordis Fammestad (Civil Application No. 695/16 of 2022) [2024] TZCA 246 (26 March 2024), at page 4, the Court of Appeal stated that: It is settled in our jurisdiction, that when an application is encumbered with a preliminary objection, it should first be resolved before hearing the application on its merits. It is correct that section 25(1) (b) of the Magistrates Courts Act, Cap 11 R.E. 2022 provides for time to appeal for matters originating from the District Court in exercise of its appellate or revisional jurisdiction. It is only thirty (30) from the date of the decision unless the same is extended by the Court. The provision stated

as follows: 19 | P a g e (b) in any other proceedings any party, if aggrieved by the decision or order of a district court in the exercise of its appellate or revisional jurisdiction may, within thirty days after the date of the decision or order, appeal there from to the High Court; and the High Court may extend the time for filing an appeal either before or after such period of thirty days has expired. It is on record Judgment of the District Court of Kongwa in exercise of its appellate jurisdiction was made on 30th May of 2024. Counting thirty (30) days from that date would end sometimes on 30th June 2024. The filing date appearing on Electronic Case Management System indicated the filing date as 5th July 2024. This is beyond the period of 30 days that law permits for an appeal to be preferred. There was nothing on party of the appellant regarding any exemptions on the delayed days as he preferred an appeal well beyond 20 | P a g e time but never bothered to seek an extension of time prior to filing such appeal. In the case of Indo- African Estate Ltd vs District Commissioner for Lindi District & Others (Civil Appeal No. 90 of 2023) [2024] TZCA 450 (12 June 2024) (TANZLII), at page 16, the Court of Appeal stated that: It is very unfortunate, in the present appeal that the appellant was not bothered to take refuge of the provisions of the CPC referred above. It foresaw it and thus, risked the dismissal of its suit and has to withstand the consequences. This is also the ambit of the Law of Limitation Act, Cap 89 R.E.

2022. It states that: 3.-(1) Subject to the provisions of this Act, every proceeding described in the first column of the Schedule to this Act and which is instituted after the period of limitation prescribed therefore opposite thereto in the second column, shall be dismissed 21 | P a g e whether or not limitation has been set up as a defence. It is law that when a matter is time-barred, the court should not entertain the same unless time has been lawful extended by the court through an application formally made by the parties to the case. In the instant appeal, there was no application for extension of time to file an appeal out of time. I cannot subscribe to an invitation by the appellant that this preliminary point of objection is not on pure point of law rather it needs evidence to establish state of affairs. It is not true as issues relating time limitation goes to the root of the case. It is so fundamental aspect thus it can dispose the appeal. As per principle in the Mukisa Biscuits case, plea of time limitation is regarded to be one of the pure points of law that are subject of preliminary objections. It was correctly raised by the respondent in this appeal as it goes to the root of the case. 22 | P a g e It is my considered opinion that this preliminary objection is valid and it is lucid that the appeal was preferred out of time without the appellant taking any

necessary measures to address the lateness in accordance with the law. There was no extension of time granted by the court to allow the appellant to file an appeal conspicuously out of time. I shall uphold this preliminary objection raised by the respondent thus the appeal is hereby dismissed for being preferred hopelessly out of time. It is so ordered. DATED at DODOMA this 13th day of November 2024. E.E. LONGOPA

JUDGE 13/11/2024. 23 | P a g e