ANJELA

I IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPLICATION NO. 6876 OF 2024 (C/F Criminal Appeal No. 38118 of 2023 High Court of Tanzania In the Sub-Registry of Manyara) ANJELA JOHN......................................................................... APPLICANT VERSUS YONA AMMI........................................................................RESPONDENT RULING 18th June & 28th August, 2024 KAMUZORA, J. The applicant has preferred the instant application under Rule 18 (1) and (2) of the Judicature and Application of Laws (Criminal Appeals and Revisions in Proceedings Originating from Primary Court) Rules, GN No. 390 of 2021 (hereinafter referred as the Rules) seeking for an order setting aside the dismissal order dated 14/2/2024 and order restoration of PC Criminal Appeal No. 38118 of 2023. The application is supported by an affidavit sworn Page 1 of 7 by the applicant herself but contested by the respondent who filed a counter affidavit. A brief factual background underlying the instant matter as could be gathered from the record is that, the respondent was arraigned before Dareda primary court charged with cattle theft contrary to section 268(1) of the Penal Code [Cap 16 RE 2022]. It was alleged that on 20/8/2023 at Sabilo village in Babati district, the respondent stole seven goats valued atTZS 840,000/= the applicant's property. After hearing the matter, the trial court was satisfied that the case against the respondent was proved beyond reasonable doubt hence, it convicted and sentenced the respondent to serve five (5) years imprisonment. It is on record that the respondent was aggrieved with the trial court's decision and appealed against it before Babati district court. After hearing the parties, the appellate court found the appeal with merits thus, it quashed and set aside the conviction and sentence imposed by the trial court against the respondent. The applicant was irked by the first appellate court's decision, she therefore filed before this court Criminal Appeal No. 38118 of 2023 to Page 2 of 7 challenge the decision of the first appellate court. It is on record that the matter was set for hearing on 14/2/2024 but the applicant did not appear and her appeal was dismissed for want of prosecution. The applicant has therefore filed the instant application seeking restoration of her dismissed appeal. The applicant appeared in person while the respondent was represented by Mr. Kuwengwa Ndonjekwa, learned advocate. The application was disposed of by way of written submissions and parties complied to the submissions schedule. In her submission in support of the application, the applicant argued that she was sick on the date the appeal was dismissed. That, she went to Dareda hospital for checkup and treatment. She therefore urged this court to grant the relief sought. In reply Mr. Ndonjekwa argued that the applicant's claim that she was sick are not true since she did not attach medial certificate in her affidavit rather the same has been attached on the submission. He argued that since the said documents have been attached on the applicant's submission the same is an afterthought as submission cannot be used to introduce evidence. Page 3 of 7 i To buttress his argument, the learned advocate referred the case of Tanzania Union of Industrial and Commercial Workers (TUICO) at Mbeya Cement Company v Mbeya Cement Company Ltd & another [2005] TLR 41. He urged this court to expunge the medical documents attached on the applicant's submission. On further submission, the learned advocate argued that at paragraph 5 of the applicant's affidavit, she claimed to have sent a person to notify the court of her illness but it is not supported by evidence like the affidavit of the person sent by the applicant to notify the court on her absence was annexed to the application. He therefore urged the court to dismiss the application. In a brief rejoinder the applicant argued that she attached the medical document in her reply to the counter affidavit. She reiterated her stance that her non-appearance on the date the appeal was dismissed was due to sickness. Having gone through the application, the records and parties' rival submissions, the sole issue for determination is whether the application has merits. In terms of rule 18 (1) and (2) of the Rules, this court can restore an Page 4 of 7 appeal dismissed for want of prosecution upon good cause being shown. Rule 18 (2) of the Rules reads; (2) The court may, upon being satisfied that the appellant was prevented by good cause from appearing either personally or by an agent when the appeal was called for hearing, re-admit the appeal. [Emphasis added]. Guided by the above provision, in order for an application for restoration of an appeal dismissed for want of prosecution like the present one to succeed, the applicant must show that he/she was prevented by sufficient cause from appearing when the appeal was called for hearing. In the matter at hand, the reason advanced by the applicant is that, on the date the appeal was dismissed she was sick. To establish her claims, the applicant has attached on her affidavit, the hospital receipt evidencing that she attended at Dareda hospital. Equally there is a letter from the said hospital annexed to the application and to the submission showing that the applicant attended treatment at Dareda Hospital. In his reply submission, the respondent urged the court to expunge the documents annexed on the applicant's submissions. I am of the considered view that, it was improper for the applicant to annex the letter which formed evidence to her submission. In view of the decision in the case of Tanzania Union of Industrial and Commercial Workers (TUICO) at Mbeya Cement Company v Mbeya Cement Company Ltd & another (supra) cited by the respondent's advocate, only judicial decisions and extracts of books can be attached on the submission and not evidence like the letter referred above. Hence, the letter annexed to the submission will not be considered. However, having gone through the applicant's affidavit, I discovered that together with the receipts, she also annexed the original letter from Dareda hospital, the copy of which, was annexed to the submission. The contents of the letter show that on 14/2/2024, the applicant was being attended at Dareda Hospital for asthmatic attack and it was on that same day the appeal was scheduled for hearing. She also deponed in her affidavit that she sent someone to notify the court of her sickness but he found the case already dismissed. Taking into account the medical evidence presented, this court finds that the applicant's absence was actuated by sufficient cause. This, Page 6 of 7 suffice it to say that the applicant has shown good cause regarding her absence when the appeal was called for hearing. In the circumstance, I grant the application and order that (PC) Criminal Appeal No. 38118 of 2023 be restored. DATED at BABATI this 28th Day of August, 2024. UZORA JUDGE Page 7 of 7