ERNEST SALEHE MOLLEL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGIRTY AT ARUSHA (PC) CIVIL APPEAL NO. 11247 OF 2024 (C/F Arumeru District Court in Civil Application No. 1 of 2023, Originated from Maji ya Chai Primary Court in Civil Case No. 118 of 2022) BETWEEN ERNEST SALEHE MOLLEL............................................................ APPELLANT VERSUS LAURANCE PAULO...................................................................RESPONDENT EX-PARTE JUDGMENT 19/09/2024 & 11/10/2024 MWENDA, J.: The appellant has filed this appeal after being dissatisfied by the decision of the Arusha District Court which denied him an extension of time to file an appeal out of time. In this appeal the appellant has filed two grounds namely. 1. That the learned Senior Magistrate erred in law for holding that n d good reasons were shown to warrant granting of an order for extension of time within which to appeal out of time. 2. That the learned Senior Magistrate erred in law for failure to grant an order for extension of time within which to appeal out of time. 1 | P age 3. That the learned Senior Magistrate erred in law for holding that there was no proof in court record to the effect that the copies of the proceedings and judgment were requested within the required time. Briefly, the background of the matter at hand are that the appellant field a suit against the respondent before Maji ya Chai Primary Court claiming for TZS. 2,000,000/= being the costs of a motorcycle and TZS 8, 200,000/= being the costs of daily payments for use of the said motorcycle for business purposes. At the trial court, the appellant alleged that on 27/03/2029 the respondent and his parents went at his house asking for a motorcycle to be used for business purpose. According to him, part of their agreement was; that the respondent would be paying him TZS 50,000/= weekly. In his; further testimony, the appellant alleged that having taken the motorcycle on 30/09/2019, he never effected any payment thus on the 15/08/2019 he reported at the police station. Having reported the matter at the police station, the appellant said the respondent wanted to handle back the motorcycle without issuing any payments, but he (the appellant) disagreec. In his further testimony he said that on 27/09/2024 they went at the Regional Commissioner's office where the appellant was beseeched to receive his motorcycle but again, he refused. 2 | P age On his part, the respondent alleged that he handled back the said motorcycle to his guarantor "Mdhamini" for him to return it to the appellant. His evidence was supported by "SU II" who further testified that the appellant did not only receive the motorcycle but also TZS 50,000/=. After a full trial, the trial court adjudged in the appellant's favour after being satisfied that he proved his claim on the balance of probability. As such, the trial court ordered the respondent to pay the appellant TZS. 5,400,000/= being the costs for using the motorcycle as per their agreement. Despite being favored by the said decision, the appellant was displeased as he; preferred the present appeal. This appeal proceeded ex-parte against the respondent as he was served with a summons on 9th day of July 2024 by a process server but refused to sign for the reasons best known to himself. The same is supported by an affidavit sworn and signed on 09/07/2024 by the process server one Mr. Zakaria Meleiya which is part of these court's proceedings. At the hearing of this appeal, the appellant appeared in person unrepresented. In the cause, he prayed this appeal to be disposed by wey 3 | Pa ge of written submission. His prayer was endorsed by the court followed by a scheduling order which was complied with. Submitting in support of the appeal the appellant stated that when the copy of judgment and proceedings were supplied to him by the trial court on 25/5/2023 he was already out of the statutory time to file an appeal. According to him, he thereafter filed an application of extension of time to file an appeal out of the prescribed time via Misc. Civil Application no. 1 of 2023 which was dismissed on the ground that there was no proof that he requested to be supplied with the certified copies of the proceedings anc judgment of the trial court. The appellant believed in that the 1st appellate court erred in law to dismiss his application as it is a trite law that a limitation of time starts to run the day, he received the said documents. In support to that legal position, he cited the case of MARY KIMARO V. KHALIFANI MOHAMED [1995] TLR 202. In his further submission the appellant stated that he requested to be supplied with the certified copies of proceedings and judgment timely but the same were supplied to him late by the trial court. He believes that since his appeal has overwhelming chances of success then this application shou d be allowed as the the respondent did not oppose the application. Similarly, 4 | Page he prayed to be accorded the right to be heard as per Article 13 (6) (a) of the Constitution of the United Republic of Tanzania of 1977 on the ground that the trial court failed to properly evaluate the records placed before it. In conclusion, he prayed this appeal to be allowed and the decision of the trial court to be quashed and set aside by allowing him to file his appeal out of the prescribed time. Having gone through the appellant's written submission and the evidence on records, this court is now enjoined to determine as to whether the appea has merit or not. As pointed out herein above, the appellant is faulting the first appellate court's decision refusing him extension of time to lodge his appeal out of the time. That being the case, it is apposite to point out that, granting or refusing extension of time is the discretion of the court. The law dictates that in exercising its discretion, the court must do so judiciously, and the law has set factors for consideration in exercising the same. Principally, the court may grant extension of time only if the applicant advanced sufficient cause and if there is a point of law involved (i.e. if the whole trial court's proceedings is tainted with illegality). See the case LYAMUYA CONSTRUCTION COMPANY LTD V. BOARD OF REGISTERED TRUSTEES DF 5 | Pa ge YOUNG WOMEN’S CHRISTIAN ASSOCIATION OF TANZANIA, Civil Application No. 2 of 2010 (CAT-Unreported). In the present application, when the appellant was seeking extension of time to lodge his appeal he advanced only one reason. The same is that the trial court delayed supplying him with the copies of proceedings and judgment. In its ruling, the 1st appellate court Magistrate observed the fact that the appellant failed to tender any proof to show that he ever requested to be: supplied with the said documents. This court have revisited the records of the 1st appellate court and noted nothing to prove the appellant's reason for delay. In essence, there is no evidence which was tendered by the appellant to prove that he requested to be supplied with the copies of judgment and proceedings in time. Had he had evidence to that effect, he would not have failed to annex it to his affidavit before the 1st appellate court. Interestingly, the appellant has attached the purported letter to his written submission at this appellate stage. This is quite contrary to the law wh ch state that submissions, whether oral or written, are not intended to be a substitute for evidence. This position has been discussed in several decisicns, 6 | P a ge one of which being the case of the REGISTERED TRUSTEES OF THE ARCHDIOCESE OF DAR ES SALAAM V. THE CHAIRMAN, BUNJU VILLAGE GOVERNMENT & 11 OTHERS, Civil Appeal No. 147 of 2006 (CAT-Unreported) where the Court held inter alia that: "Submissions are not evidence. Submissions are generally meant to reflect the general features o f a party's case. They are elaborations or explanations on evidence already tendered. They are expected to contain arguments on the applicable law. They are not intended to be a substitute for evidence/' [emphasis is mine]. Guided by the above authority, this court shall accord no weight on the saicfl letter. This is because, the same ought to be tendered at the 1st appellate court to support his reasons for delay and, the same being new evidence could only be considered upon filling a formal application, an application which ought to be supported by sufficient reasons to move the court to grant the same. See the case of IDRISA R. HAYESHI VS EMMANELI ELINAMI MAKUNDI (Civil Application No. 123 of 2020) [2021] TZCA 308 (16 July 202,1) 7 | Pa ge (Tanzlii) where the court highlighted grounds to consider for new evidence to be admitted at the appellate stage. Having said so, this court is of the view that this application is without merits, and it is hereby dismissed in its entirety. Otherwise, there is no order as to costs. DATED and DELIVERED at ARUSHA this 11th day of October, 2024. 8 | Page