MISC

IN THE HIGH COURT OF TANZANIA MUSOMA SUB REGISTRY AT MUSOMA MISC. CRIMINAL APPLICATION NO. 000015605 OF 2024 REFERENCE NO. 202406072000015605 (Arising from Criminal Appeal 37557 of2023 High Court of Tanzania Musoma Sub­ Registry) DIRECTOR OF PUBLIC PROSECUTION............................................ APPLICANT VERSUS SIMON WALIA.............................................................................. RESPONDENT RULING 05th & 09th August, 2024 M. L, KOMBA, J,: This application has been preferred by way of chamber summons under section 383 (3) and 392 A (2) of Criminal Procedure Act, Cap 20 R.E. 2022 while it was supported by an affidavit of Senior State Attorney, Yese Temba who is praying for the following orders: 1. That the honourable court may be pleased to make order of re­ admission of Criminal Appeal Admission Number 000084797 of REPUBLIC VS SIMON JOHN WALIA and set aside the struck order dated 12 day ofApril 2024. When scheduled for hearing, the applicant Republic was represented by Mr. Yese Temba (SSA) while respondent stood solo without representation. Page 1 of 12 State Attorney was the first to argue his application. He was brief that they encountered challenges in application of new court filing system and failed to upload petition of appeal. He submitted further that they noted the mischief but they were out of time to file an appeal and they could have no good cause for extension of time after the struck out. While insisting on re­ admission of the appeal he informed this court that the crime involve huge amount of money and has connection with a foreigner so he finds necessity of hearing the appeal to the merit. Respondent on his part he complained that he was not served with summons neither informed that there is an appeal filed by the applicant against him while his properties retained at police in connection of the appeal. Resisting the application, he said the reasons listed in the affidavit has no weight as the applicant is not sure when exactly the appeal was struck out as they depend on information without proof. He said if the court was in operation on the scheduled date regardless of the holiday, she (appellant in that appeal) was supposed to attend instead of blaming the court and it was right for the struck out, he prayed for no re-admission. Submitting further he said, the reason that the matter involves a foreigner is not a ground for restoration of application and lamented that his Page 2 of 12 properties are under police custody since the year 2020 and even after judgment they delay in appeal and hinder him economically. He prayed the application be dismissed. While rejoining his prayer, Senior State Attorney noted that some of respondent properties were seized and retained in police under assumption that they were not legally owned by him and noted further respondent was not served with summons when appeal was filed but he submitted that all those were not reasonable grounds to deny him his prayer. He clarified that under Cap 1 Courts do not operate during holidays and it was two days holiday and on the first working day the matter was not called. He prayed his appeal be restored. My duty is to determine if the application is properly in this court. In his affidavit Senior State Attorney Temba who represented Republic deponed that the matter was schedule on the public holiday, however on the first working day which was 12th April 2024 the case was not called as there was State Attorney in court who could attend it. After a follow up on two different days he was informed by court clerk, Janeth Millinga, that the matter was struck out on 10th April. He worked on the information and Page 3 of 12 complained that it was holiday (Eid Al Fitr) and it was not possible for them (Republic) to make appearance. I agree with him that courts do not operate in public holidays. However, his submission and facts have shortfalls; First, Mr. Temba SSA relied in information from court clerk and deponed in his affidavit but he did not attach affidavit of the said Janeth although it is not disputed that she is a clerk of the High the Court. It is position of this court that when affidavit mention other person, that other person must swear affidavit too to register his position and to complement what is stated by the party. In John Chuwa vs Athony Ciza [1992] T.LR. 233, the application for leave to appeal was filed two days after time and the reason given for the delay was that the cashier was absent from the station and hence no receipt could be obtained timely although the money was paid on the date the relevant documents were submitted. The said cashier did not file an affidavit to explain away the applicant's delay. The Court relied on its previous decision in Kighoma A. M. Malima vs Abas Yusufu Mwingamno, Civil Application No. 5 of 1987 (unreported) to hold that; '...an affidavit of a person so material, as the cashier in that case, ought to have beenfiled.' Page 4 of 12 See also Sabena Technics Dar Limited vs Michael J. Luwunzu, Civil Application No. 451/18 Of 2020, Benedict Kimwaga vs Principal Secretary Ministry of Health, Civil Application No. 31 of 2000 and NBC Ltd vs Superdoll Trailer Manufacturing Company Ltd, Civil Application No. 13 of 2002 (both unreported). In the latter case, the Court was categorical stated that; ”... an affidavit which mentions another person is hearsay unless that other person swears as well.' In the case at hand, so far as Mr. Temba was informed by the court clerk that appeal was struck out and he decided to act on that information, he was supposed to attach affidavit of the said court clerk. Otherwise, it is hard to believe his version of story as deponed as it remains to be hearsay. Second, Mr. Temba (SSA) for applicant supported his application with affidavit in which he complained of the struck-out order. Unfortunately, the order was not attached. It is not disputed that the order was issued by this Court but, attaching the order was necessary as it is settled practice of this Court even the Court of Appeal that a party who initiates an application complaining of certain order must attach copies of impugned proceedings Page 5 of 12 and order he is complained of. See Mohamed Rabii Honde (as the administrator of the Estate of the late RABII ISMAIL HONDE) vs. Hamida Ismail Honde and 11 Others, Civil Application No. 461 of 2017 CAT at Iringa (unreported), Benedict Mabalanganya vs Romwald Sanga, Civil Application No. 1 of 2002 and The Board of Trustees of the National Social Security Fund (NSSF) vs Leonard Mtepa, Civil Application No. 140 of 2005. In the latter case of The Board of Trustees of the National Social Security Fund (NSSF) for instance, it was decided that; '..... he must make available to the court copy of the proceedings of the lower court or courts as well as the ruling and, it may be added, the copy of the extracted order of the High Court. An application to the Court for revision which does not have all those documents will be incomplete and incompetent. It will be struck out.' Senior State Attorney did not find importance of attaching the order. Attaching the order could help him to know what exactly was ordered. Failure to do that makes the application incomplete and incompetent. Page 6 of 12 Third, shortfall in applicant application is the reason for struck out. What was deponed by Mr. Temba (SSA) in his affidavit is different from what is in court record. At this juncture I nail-in the importance at attaching the order complained off. For the clarity of what happened in court let the proceedings speak loud; . Stage Dale : Fri Apr 12 2024 THE JUDICIARY OF TANZANIA . Stage Time : 10:00:00 IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MUSOMA . Order; • Case Siege : Hearing CRIMINAL APPEAL NO. 000037557 OF 2023 . Caso Reference: 20231120000037557 CASE REFERENCE NO. 20231120000037657 REPUBLIC________ COMPLAINANT / APPELLANT I APPLICANT I PLAINTIFF 2. Coram VERSUS . Coram Datn Fri Apr 12 2024 SIMON JOHN WALIA________________RESPONDENT I DEFENDANT • Caso Stage : Hearing PROCEEDINGS • Court Room Court Room 2 • Case Status : Decided 1. Coram • Coram : Appellant Republic Absent Respondent Present In person connected RMA Janeth ML'mga • Coram Date . Fri Apr 12 2024 . RMA • Case Stage : Hearing • Court Room : Court Room 2 2.1 Proceeding • Caso Status : Pending • Coram : Appellant connected from prison. Respondent Absent RMA Janeth Milmga. • Proceeding Dale : Fri Apr 12 2024 • Addresser Name: • RMA • Addresser Order: 1. 1 Proceeding PROCEEDING • Proceeding Date : Fri Apr 12 2024 • Addresser Name: Court Appeal b Incon potent before this court as there is no petition filed. I lor that reason I struck It out • Addresser Order: 3. Coram PROCEEDING • Coram Data Mon Jan 22 2024 • Caso Stage : Waiting (or Records • Court Room . Court Room 2 NH. error In coram. • Caso Status : Pending » Coram; Caso Adjournment . RMA Pago.1 KU' Hon MARLIN KOMBA Page 7 of 12 1.1 Proceeding • Proceeding Date: Mon Jen 22 2024 Issue summons. Cal lor records. « Mixtw N*m»: court • Addresser Order: 1 Cess Adjournment • Stage Data t Wed Apr W 2024 PROCEEDING • Stage Time: 093030 • Order: For hearing Issue summons. Cal for record. • Case Stage: Hearing • Casa ReTaranoo: 202311200000370JT C»w Adjournment • SUgo Date: Mon Jan 22 2024 • Stage Tin*: 0930:00 » Order: For hearing • Caso Stags: Hearing e Casa Rafarenes :2023112000003755T 4. Coram • Coram Pate: Mon Jan 22 2024 • Casa Stage: Hearing • Court Room: Court Room 2 • Caso Status: Pending • Coram: • RMA 4.1 ProoaoiSng • Proceedfog Date: Mon Jon 22 2024 * Addresser Name: court > Addresser Order :1 PROCEEDING Hon. MARLIN KCtiSA What was deponed by Senior State Attorney Temba was that, the appeal was struck out for non-appearance of appellant as per paragraph 6 and 7 of applicant affidavit. I was asking myself where did he got those words. He failed to convince this court that it was a court clerk who informed him as there is no affidavit to that effect and it was possible for the court clerk to access the last court order after struck out. Moreso, in order to show seriousness, representative of the applicant was supposed to read proceedings in eems as nowadays everything is accessed in the system or else, he could formally request for certified proceedings and order for him Page 8 of 12 to know what real transpired on that day. But he opted to find all those was not important as a result, he misled himself and the application is misplaced. Why am I saying the application is misplaced, it is because this court was moved under a wrong provision of law, section 383(3) of Cap 20 as indicated in Chamber Summons. The section provides; 383.-(1) Where, on the day fixed for the hearing of an appeal under sections 366 and 378 or any other date on which the hearing may be adjourned, the appellant or his advocate as the case may be, does not appear when the appeal is called on for hearing, the High Court may make an order that the appeal be dismissed. (2).......... (3) Where an appeal is dismissed under subsection (1) the appellant or his advocate, as the case may be, may apply to the court for re­ admission of the appeal and, where he satisfies the court that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing, the court may re-admit the appeal. The above except form Cap 20 is referring dismissal for non-appearance of appellant. From record, on 12th April 2024 the appeal by the appellant now applicant was struck out for want of petition of appeal as there was no appeal because there was no petition of appeal filed. This court struck out the appeal in order to create room for the appellant to properly file the Page 9 of 12 appeal. The difference between the two words, struck out and dismissal has been clarified in an East African case of Ngoni- Matengo Cooperative Marketing Union Ltd vs Alimahomed Osman (1959) EA 577 at page 580 where the Court of Appeal quote with approval in Cyprian Mamboleo Hizza vs Eva Kioso & Another (Civil Application 3 of 2010) [2011] TZCA 40 (28 March 2011) thus; This court, accordingly, had no jurisdiction to entertain it, what was before the court being abortive, and not a properly constituted appeal at all. What this court ought strictly to have done in each case was to "strike out" the appeal as being incompetent, rather than to have "dismissed" it: for the fatter phrase Implies that a competent appeal has been disposed of, while the former phrase implies there was no proper appeal capable ofbeing disposed of.' Back to the case at hand, on 12th April 2024 Criminal Appeal with Reference No. 37557 was incomplete and incompetent. See Section 379(1) (b) and section 380. As indicated in foregoing paragraphs that appeal was filed without petition of appeal and was incomplete and incompetent, this court finds there was Page 10 of 12 nothing filed and therefore, there is nothing to restore. In his submission Mr. Temba (SSA) submitted that he had the option of filing the appeal but he finds he was out of time and opted for restoration after he was satisfied that he has no good cause to apply for time enlargement. I was wondering if I heard him properly. He finds no reason to explain why the intended appeal was late after the struck out and decided to restore the appeal which, actually was not an appeal. & I find the time spent in prosecuting this application could wisely be used to apply for enlargement of time and proceed with appeal. Literally, with due respect, I have failed to understand the representative of the applicant. This court was not properly moved in this application as the matter was not dismissed for non-appearance of the appellant as submitted. Further, there is nothing to restore as the preferred appeal via reference No. 37557 was incompetent. Without further ado, and for the reasons I have endeavored to assign, I hereby dismiss the application. K M. L. KOMBA JUDGE 9th August, 2024 Page 11 of 12 Ruling delivered under the seal of the court on this 9th August, 2024 in the presence of respondent who appeared in person and in the absence of Applicant (Republic). M. L. KOMBA JUDGE Page 12 of 12