Judgement DC

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI DC. CRIMINAL APPEAL NO. 23017 OF 2024 (C/F Misc. Criminal Application No. 17 of 2023 in the Resident Magistrates’ Court of Moshi at Moshi) ELIAS DOMINIKI LYIMO.…..………….……………………....…APPELLANT

VERSUS THE DIRECTOR OF PUBLIC PROSECUTIONS…..…..……1ST RESPONDENT ALEX WILFRED LYIMO……………………………………2ND RESPONDENT

JUDGEMENT 25th November & 18th December, 2024 MONGELLA, J. The Appellant herein filed Misc. Criminal Application No. 17 of 2023 before the Resident Magistrates’ Court of Moshi at Moshi (henceforth, the trial Court) against the respondents. He sought for extension of time to file an application for discharge of his forfeited motor vehicle make Sprinter with registration no. T 991 BFA. The said vehicle was allegedly forfeited in Criminal Case No. 48 of 2022 before the trial Court upon the 2nd Respondent being convicted. Page 1 of 9 Upon hearing both parties, the trial Court found that he had not advanced good cause warranting grant of the extension of time he had sought. Aggrieved, the Appellant preferred this appeal on the following grounds: 1. That the learned trial Magistrate erred in law and in fact when failed to differentiate the main application and the application of extension of time in making decision.

2. The trial Magistrate erred in law and facts, where said that my submission was submitted as if it is the hearing of the main application and entered the Ruling on the Application of extension of time. (sic) 3. That the learned trial Magistrate erred in law and facts by considering the submission of the main application of the Appellant during the hearing of the Application for extension of time. (sic) 4. That the learned Magistrate erred in law and facts when failed to consider the Application of the Appellant specifically on the extension of time, and ruling out on the main application as to set aside the forfeiture order. The appeal proceeded by written submissions whereby the Appellant was unrepresented while the 1st Respondent was represented by Ms. Jesca Jackson Kamuhabwa, learned State Attorney. The 2nd Respondent never entered appearance in this Page 2 of 9 Court or at the trial Court in respect of this matter. The appeal thus proceeded ex party on his part. The Appellant commenced by stating that pursuant to Rule 10 of the Rules an application for extension of time will only be allowed if the applicant demonstrates good cause to warrant the Court to extend time. Unfortunately, he did not mention under which rules the said provisions are found. He fortified his assertion with the case of Kalunga & Company Advocates Ltd vs. National Bank of Commerce Ltd [2006] TLR 235

and Dar Es Salaam. City Council vs. Jayantilal P. Rajani, Civil Application No. 27 of 1987 (unreported). Endeavouring to show that he had a good case before the trial Court, he contended that he first addressed before the trial Court as to what amounts to good cause to warrant the trial Court to grant the extension of time sought. Referring to paragraph 13 of his supporting affidavit at the trial Court, he claimed that the same disclosed the reason for his delay. Explaining about the advanced reason, he submitted to have explained the delay being caused by his unawareness of the date of Ruling and the orders thereto. He contended that this was a point of technicality which cannot be solved by a lay person. That, it is hard for a layperson to understand the right of an accused party to be reminded the charge and plead thereto. He cemented his averment with the case of Philemon Mang'ehe t/a Bukine Traders vs. Gesso Herbon Bajuta, Misc. Civil Application No. 374/02 of 2022 CAT at Arusha (unreported), whereby the Court noted that the Page 3 of 9 party was a layperson. He further referred the case of Fortunatus Masha vs. William Shija [1997] TLR and Salvand K.A. Rwegasira vs. China Henan International Group Co. Ltd, Civil Reference No. 18 of 2006 (unreported). The Appellant further averred that the 2nd ground in his appeal is on whether by not making a follow up on the case until

July amounted to negligence. He proceeded to reproduce the definition of negligence as per Wikipedia saying that it is a “failure to exercise appropriate care expected to be exercised in similar circumstances.” Referring to paragraph 14 of his supporting affidavit in the trial Court, he alleged that being unaware of the second plea demonstrates there was no negligence. He alleged to have exercised appropriate care from the day the offence was committed by the 2nd Respondent. He again pleaded technicality alleging that the initial plea was of not guilty, but was altered to that of guilty. In the premises, he maintained his stance that him being a lay person, he could not deal with it. Once again, he referred the case of Philemon Mang'ehe t/a Bukine Traders (supra) alleging that the fact that a lay person fended for himself for technical issues cannot be taken lightly. He finalized his submissions by praying for the appeal to be allowed and the trial Court Ruling and order to be quashed. I have intentionally skipped the reply submissions by the 1st Respondent as in his rejoinder, the Appellant raised an issue that the 1st Respondent filed her submissions on 19.11.2024 and not Page 4 of 9 18.11.2024 as scheduled by this Court, thus acted contrary to the order of this Court. Having observed the eCMS, it appears that the reply submissions by the 1st Respondent were not filed in the

system, but rather physically. The stamp on the submissions show that they were filed on 19.11.2024 while they ought to have been filed on or before 18.11.2024. The omission to comply with the filing schedule amounts to non-appearance on the date of hearing. The effect is for the appeal to proceed ex parte against the 1st respondent. I will thus not pay attention to Ms. Kamuhabwa’s submissions. Prior to resolving this appeal, upon observing the grounds of appeal, it appears that the Appellant is faulting the Ruling of the trial Court on the ground that the trial magistrate treated the application for extension of time as the main application. However, in his submissions he raised issues not covered in his grounds of appeal, as he averred that he had demonstrated sufficient grounds to warrant this Court to extend time. Nevertheless, as his grounds are to the effect that the trial Court failed to consider his submissions in regard to requesting extension of time, the issue in this appeal is whether the trial Court erred in dismissing his application for failure to account for each day of delay. The law is settled that enlargement of time is within the discretion of the granting Court. However, such discretion is to be exercised judiciously upon sufficient cause being demonstrated. There are a series of guidelines that have been adopted by the courts to be considered in extending

time. Some of such guidelines were laid out in Lyamuya Construction Co. Ltd vs. Board of Registered of Page 5 of 9 Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 TANZLII, whereby the Court of Appeal stated: “As a matter of general principle, it is in the discretion of the Court to grant extension of time. But that discretion is judicial, and so it must be exercised according to the rules of reason and justice, and not according to private opinion or arbitrarily. On the authorities however, the following guidelines may be formulated: - (a) The applicant must account for all the period of delay (b) The delay should not be inordinate (c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take. (d) If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance; such as the illegality of the decision sought to be challenged.” I have observed paragraph 13 of the Appellant’s supporting affidavit at the trial Court. He stated therein that the delay was due to the fact that the 2nd Respondent initially pleaded not guilty, but changed his plea to that of guilty. His exact words in the said paragraph were: “13. That, the delay was due to the fact that, the plea of the 2nd Respondent in Criminal Case No.

48/2022 in the proceedings was as follow, on 27th day of September, 2022, was Page 6 of 9 plea of not guilty, but on 11th day of August, 2022 the 2nd Respondent prayed to be reminded the charge and hence he entered plea of guilt.” The Appellant alleged that the fact that he was unaware that the law allows for an accused to change his plea was an issue of technicality, hence a technical delay. He supported the assertion with the case of Philemon Mang'ehe t/a Bukine Traders (supra). I however, find this case irrelevant in the circumstances of this case. In the said case, the applicant had filed an application in a wrong Court, which means he sought for an appropriate remedy, but in a wrong forum rendering him to be found under technical delay. Being a layperson was a contributory factor to the wrong filing which instigated the delay. What entails a technical delay was well explained in the case of Fortunatus Masha (supra) whereby the Court stated: “A distinction has to be drawn between cases involving real or actual delays and those such as the present one in which clearly only involved technical delays in the sense that the original appeal was lodged in time but had been found to be incompetent for one or another reason and a fresh appeal had to be instituted. In the present case the applicant had acted immediately after pronouncement of the ruling of the court striking out the

first appeal. In these circumstances an extension of time ought to be granted.” Page 7 of 9 The Appellant’s allegation that the delay was technical does not stand in the circumstances. The Appellant did not demonstrate at any point that he pursued remedies to recover the motor vehicle that somehow were rendered incompetent for some reason, hence a technical delay. Being unaware of the Court proceedings and how a party could plead guilty after pleading not guilty cannot be used to camouflage the fact that the Appellant did not follow up on proceedings for the entire time the case was in Court. There is nothing technical about the present circumstances as to warrant grant of extension of time on those bases. The Appellant did not account for the entire period of delay. He, in fact, admitted on his own that he did not follow up on the matter as he stated to have only learnt of the change of plea and date of decision in the respective criminal case. He stated that it was only after meeting up with the 2nd Respondent that he found out that the case had been concluded. In my view, all this demonstrates apathy, negligence and lack of diligence rendering and the trial Court right in finding the Appellant to have acted negligently. With respect to the argument that the trial Court determined the application as if it was the main application; I observed the pleadings by both parties as

well as their submissions at the trial Court. Given the nature of facts disclosed in the Appellant’s supporting affidavit as well as in the 1st Respondent’s counter affidavit, the allegations as to ownership of the motor vehicles were raised by the 1st Respondent and submitted on by the Page 8 of 9 Appellant. I find that this issue as well as the fact that he only spoke on details of the forfeiture of the motor vehicle brought the trial Court into stating that his submissions were as that of the main application and not of the application for extension of time. Still, the trial Court did step forth into determining the application for extension of time whereby it found that the Appellant had failed to demonstrate good cause as to warrant the trial Court to extend time. As the Appellant failed to account for his delay by advancing reasons for his delay, the trial Court was right to dismiss his application for extension of time. In the premises, I hereby uphold the decision of the trial Court. The appeal is found without merit and dismissed. Dated and delivered at Moshi on this 18th day of December, 2024. X L. M. MONGELLA

JUDGE Signed by: L. M. MONGELLA Page 9 of 9