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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA CRIMINAL APPEAL NO. 23410 OF 2024 (Originating from the Court of Resident Magistrate of Mbeya at Mbeya in Criminal Case No. 10 of 2023) DIRECTOR OF PUBLIC PROSECUTIONS………………….APPELANT VERSUS MBARIKIWA DICKSON MWAKIPESILE……RESPONDENT RULING SINDA, J.: Date: 4 November 2024 & 7 November 2024 The respondent, Mbarikiwa Dickson Mwakipesile, was charged with the offence of publication of false information contrary to section 16 of the Cyber Crime Act No. 14 of 2015 (the Cyber Crime Act). The Resident Magistrate Court of Mbeya at Mbeya (the Trial Court) acquitted the respondent. Aggrieved with the decision of the Trial Court, the appellant appealed to this court on the following grounds: 1 1. That, the Trial Court Magistrate erred in law and in fact in holding that the prosecution had failed to prove its case beyond reasonable doubt. 2. That, the Trial Court Magistrate erred in law and in fact in failing to evaluate the evidence of the prosecution. 3. That, the Trial Court Magistrate erred in law and in fact in holding that the prosecution had failed to call a material witness to the case. On 2 October 2024, the appeal came before me for mention with a view to set a date for hearing. The respondent counsel Mr. Nickson Kiliwa, learned counsel prayed the matter to proceed by way of written submission. The appellant counsel Mr. Salmin Zuberi, learned State Attorney did not object. As such, I ordered the appeal to proceed by way of written submission. The appellant was required to file his written submission on 15 October 2024. The respondent was to file his reply submission on 25 October 2024. Further, the appellant was to file rejoinder if any on 1 November 2024. The date for mention was set on 4 November 2024. The appellant did not file any submission on the agreed date of 15 October 2024. The same was raised by the respondent in his reply submission. On 4 November 2024, when the matter came for mention, Mr. Zuberi submitted that the appellant did a careful perusal of the records before complying with the Court order of 2 October 2024. The appellant found that the Trial Court typed proceedings were incomplete (the Proceedings). He stated that only one (1) witness of the Republic PW7 2 and two (2) witnesses of defense that is DW1 and DW2 are shown in the Proceedings. He added that in the judgement of the Trial Court (the Judgement) the witnesses of the Republic were seven (7). As a consequence, the appellant could not file his written submission on 15 October 2024 as ordered by this Court. He prayed for this Court to call for the Trial Court records and provide both parties with complete Proceedings in order to proceed with the matter with diligence as required by the law. In reply to the submission, Mr. Kiliwa submitted that it is not a sufficient reason that the appellant did not comply with the Court order to file written submission because of the incomplete Proceedings. He added that on 2 October 2024, the appellant did not inform the Court that the Proceedings are incomplete. He further contended that in the appellant submission he did not inform the Court as to when he became aware of the anomaly. That, in such instance, the appellant was supposed to file a submission to withdraw the matter and call for records. He continued that, however, the prayer is coming from the appellant after failure to comply with the Court order. To support his argument the counsel referred to the case of Equity for Tanzania Limited vs Feme Mining Equipment and Agriculture Ltd, Misc Civil Case No. 99 of 2020, HC at DSM, which referred to the following cases Africarriers Limited v Shirika la Usafiri Dar es Salaam Limited and Another, Commercial Case No. 50 of 2019, Calico Textile Industries Ltd vs. Pyraliesmail Premji [1983] T.L.R. 2 and Shabani Amuri Sudi (the administrator of the estate of the late Amiri 3 Sudi) vs. Kazumari Hamisi Mpala, Misc. Land Application No. 30 of 2019 (unreported). He further referred to the case of Brandina Marcus Msimangila vs Ally Mohamed Mpyana, Land Appeal No. 64 of 2022, HC at Morogoro, which referred to the case of Idahya Maganga Gregory vs The Judge Advocate General, Court Martial, Criminal Appeal No. 2 of 2002 (unreported) and the case of Lucy Kasonda Makinda vs Zaina Abdallah Making'inda, Misc. Application No. 72 of 2019 (unreported). Mr. Kiliwa further argued that the appellant does not have sufficient reason as stipulated in the above cases because he had sufficient time to follow up on the Proceedings. He claimed that the appellant did not inform the Court on the anomaly prior. That this means that the appellant did not intend to file the submissions. He added the implication of not complying with the Court order is that the appellant failed to prosecute his case. As such the appeal should be dismissed. He prayed the Court to dismiss the appeal. In rejoinder, Mr. Zuberi restated his submission in chief. He stated that this court is not bound to follow what was decided in the High Court cases referred to by the respondent counsel that is Equity for Tanzania Limited (supra) and Brandina Marcus Msimangila (supra). He argued that the two cases have different facts to the present matter before this Court. He added this Court can follow those precedents for the interest of justice. He maintained that both decisions emphasize on the phrase without any sufficient reasons. He contended that the appellant has sufficient reason as to why he did not to comply with the Court order. He 4 added if they had proceeded with the incomplete Proceedings as the records are at the moment. One party to the case would have been jeopardized on point of law. Mr. Zuberi continued that the respondent counsel stated that the appellant did not take any action to ascertain the issue at hand, while the appellant had enough time to follow up on the court records. Mr. Zuberi submitted that the only forum to ascertain this issue based on the court order of 2 October 2024 is the date of mention i.e. 4 November 2024. He insisted that there was no other proper forum to inform the court on the anomaly at hand. Mr. Zuberi further submitted that with reference to the case of Brandina Marcus Msimangila (supra) submissions filed out of time and without leave of the Court are not legally placed on records and are to be disregarded. Mr. Zuberi, thus, maintained that the order to file written submission was made on 2 October 2024. As such, the leave to file submissions out of time was to be made on 4 November 2024 when the matter came for mention. He prayed the court to consider his prayer. I have considered the Trial Court’s records and the parties' arguments. I agree with Mr. Kiliwa that, as a general rule, as observed by this Court and the Court of Appeal (the CAT), the appellant’s failure to file his or her written submission in chief is equivalent to failure to appear and prosecute his or her case. 5 In the case of P3525 LT Idahya Maganga Gregory (supra) the Court held that: "It is now settled in our jurisprudence that the practice of filing written submissions is tantamount to a hearing and therefore, failure to file the submission as ordered is equivalent to non- appearance at a hearing or want of prosecution. The attendant consequences of failure to file written submissions are similar to those of failure to appear and prosecute or defend, as the case may be. Court decision on the subject matter is bound… Similarly, courts have not been soft with the litigants who fail to comply with Court orders, including failure to file written submissions within the time frame ordered. Needless to state here that submissions filed out of time without leave of the court are not legally placed on records and are to be disregarded.” In the case of Lucy Kasonda Makinda (supra), the Court held that: “It has been held in a catena of this Courts decisions that failure to file written submissions as ordered is as akin to failure to appear on a hearing date and bears similar consequences. I accordingly find the applicant failed to file her submissions in time without good reasons”. In addition, in Africarriers Limited (supra), the Court observed that: 6 “… an advocate being an officer of the Court is deemed to act diligently. There is no excuse for an officer of the Court who decides not to comply with the Court order without any sufficient reasons”. I have taken time to carefully consider the arguments by the learned counsel for both parties. The question I am supposed to address is whether the appellant has disclosed good and sufficient reasons to file submission out of time. From the above authorities, the principle stands to be that, there must be sufficient reasons to file submission out of time. In this matter, the appellant has narrated the reasons why he could not comply with the Court order to file the written submission on 15 October 2024. He further explained that the date set for mention that of 4 November 2024 was the only forum to inform this Court of such an anomaly on the incomplete Proceedings and for the appellant to pray for leave to file submissions out of time. In my opinion, that reason is satisfactory to convince this Court to exercise its discretion since it neither demonstrate that, the appellant was not negligent nor undiligent in any way possible. Therefore, based on the reasons stated by the appellant, there is a need to allow the appellant to file the submission out of time. The appellant prayed for this Court to call 7 for records. The Trial Court records are already before this Court. Hence, both parties can peruse the hand-written proceedings of the Trial Court and obtain complete proceedings. Consequently, this Court order that this matter to proceed on merit. All parties to appear for a hearing before this Court on 20 November 2024 at 9:00am. It is so ordered. DATED at MBEYA on this 7 day of November 2024. A. A. SINDA JUDGE 8