FLORA JOHN

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [ARUSHA SUB REGISTRY] AT ARUSHA MISC CIVIL APPLICATION NO. 99 OF 2023 (C/F Misc. Civil Application No 50 o f2023 from the High Court o f Tanzania Arusha) AUTOCAR EAST AFRICA LIMITED..............................................PLAINTIFF VERSUS ORYX ENERGIES TANZANIA LIMITED..................................1st DEFENDANT ORYX SERVICES AND SPECIALTIES LIMITED...................... 2nd DEFENDANT RULING 02nd & 19th July 2024 TIGANGA, J. This is an application for setting aside the dismissal order entered in Misc Civil Application No. 50 of 2023 on 06th September, 2023 by this court. The applicant also asks for costs and any other order that the Honourable Court may deem fit to grant. The application was preferred by a chamber summons made under Order IX Rule 3 of the Civil Procedure Code [Cap 33 R.E. 2019]. The same is supported by an affidavit of Godbrown Massawe who introduced himself as a principal officer of the Applicant. In that affidavit, the deponent deponed that, sometime in May 2023, he fully instructed Mr. Emmanuel Kinabo, Advocate to file and prosecute Misc. Civil Application No. 50 of 2023 against the Respondent. Having so instructed him he believed that everything was in order. However, on 07/09/2023 while he was on a journey abroad, he got a text message from his Advocate that the said application was dismissed on 06/09/2023 for failure of the Applicant to appear and that he had withdrawn from representing the applicant without prior notice. According to him, after being so informed, he immediately directed another Advocate Mr. Omary Gyunda to peruse the file and advise him. Upon perusal, Mr. Gyunda found out that, the application was dismissed due to poor cooperation of the applicant with his Advocate and that the application was an abuse of the court process, which was the reason for his withdrawal from representing her. He thereafter was advised and based on that advice he applied for restoration of his application. He said his Advocate was unfaithful for he instructed him to represent him and prosecute the application, by paying him legal fees and other instructions but the Advocate was the one who 2 was not responding to his query when he looked for him to know the progress of the case. He said the order of dismissal was entered wrongly because he was not given the chance to be heard on the allegations of the Advocate respondent that he was abusing the court process and violating the order of the court on the maintenance of the status quo. He said an Advocate improperly withdrew from representing him and therefore dismissal in the circumstances, is without affording him the right to be heard. He asked this court to vacate the dismissal order, and that the applicant stands to suffer immeasurably as he has been condemned unheard. The application was opposed by the Respondent who filed the counter affidavit in which the Respondent deponed that the application is without substance. Hearing of the application was done by way of written submissions. In the submission in chief which was almost the re-capitulation of the affidavit filed in support of the application, the counsel for the applicant was not served with a notice or information of withdrawal of an Advocate, as per the requirement of Regulation No. 63 (2) of the Advocates (Professional Conduct and Etiquettes) Regulations, 2018 G.N. No. 118 of 2018 which provides that: "An Advocate shallnot withdraw service except for good cause and upon written Notice to his client and the court" He said no notice was served to the applicant and the court. He said also that even Regulations 66 (2) and 67 (1) of the Advocate Professional Conduct and Etiquettes Regulations, 2018 also insist on the requirement of the Notice of withdrawal and that the notice must be of 30 days informing the client. He said the procedure herein above was not complied with therefore the purporting withdrawal was illegal, therefore the applicant was denied her right to be heard under the law and constitution of the United Republic of Tanzania, 1977. He said even the counter affidavit has not disputed the facts that there is no written notice as per the requirement of the law on the advocate's withdrawal. He insisted that at the time ofwithdrawal, the applicant was in South Africa, therefore he prayed for setting aside the dismissal order and restoration of the case. In reply, the respondent through theservice of Mr.Moses Mmbando, Advocate submitted that, the applicant had a duty to follow up on his case and that the mere fact that he instructed an Advocate does not mean that, he had to abandon the case and leave it to the Advocate's desk, based on that argument, he said the applicant's complaint does not hold water. In his view, Mr. Kinabo, Advocate, as an officer of the court could not have lied when he said that he had no cooperation from his client, as there is no reason given for him not to be disbelieved. He also reminded the court that if we are to believe that, Mr. Kinabo, did not give the notice of withdrawal, then that omission is more of an etiquette matter than the ground for restoration of the dismissed matter for want of appearance and prosecution. To support that contention, he cited the case of KFinance Limited vs Lipina Michael Mrema, Misc Civil Application No. 407 of 2022, High Court of Tanzania at Dar-es-Salaam in which it was held inter aiia\hdX.\ "As for the reason o f the delay the applicant blames her Advocate for abandoning the appeal without her knowledge. In terms o f settled law, a person engaging an Advocate to represent him or her in the court is duty-bound to make dose follow-up on the status o f the case. The omission to make follow-up on the status o f the case is not a sufficient cause." This position was stated in the case of Lim Han Yun and Another vs Lucy Theseas Kristensen, civil appeal No. 219 of 2019 where the Court of Appeal held: "The applicant cannot throw the whole blame on their Advocates. We think that a party to a case who engages the service o f an Advocate must closely follow up on the progress and status o f his case. A party who dumps his case to an Advocate and does not make any follow-ups o f his case cannot be heard complaining that he did not know and was not informed by his Advocate the progress and status o f his case." In the end. He urges this court to dismiss the application because the applicant has failed to advance sufficient reason to warrant restoration of this matter. The applicant was supposed to file his rejoinder on 02/07/2024 but did not file one, since the matter was scheduled for mention with the view of fixing the ruling date then, and on that date, parties were represented by an Advocate, then, the court fixed a ruling date. The provision upon which the court has been moved in this application, i.e. Order IX Rule 3 of the Civil Procedure Code [Cap 33 R.E. 2019], which provides that; 1'Where a suit is dismissed under rule 2, the plaintiff may (subject to the law o f limitation) bring a fresh suit, or he may apply to set aside the dismissal order. I f he satisfies the court that there was good cause for his non-appearance, the court shall set aside the dismissal order and shall appoint a day for proceeding with the suit." 6 From the provision, this court has powers to set aside the dismissal order and restore the matter that has been dismissed, if it is satisfied that there was good cause for his non-appearance. The catchphrase, it is evident from the provision, the powers of this court to set aside and restore the application is conditional to the applicant giving good cause to satisfy the Court that there was good cause that prevented him from appearing to the court on the date when the matter he seeks to restore was dismissed. That being the case, the issue for determination is whether the applicant has given sufficient cause for her non-appearance. In his effort to satisfy the court on the reasons for his non- appearance, the counsel for the applicant gave the following reasons, after he had instructed his Advocate to file the application and the main suit against the respondent, he believed that everything was in order, therefore he did not make any follow-up to his case. However, in responding to this, it is instructive to note that, the same Advocate who was instructed by the applicant, appeared in court and told the court that he disqualified himself from representing the applicant because his client, the applicant had not been cooperating. That statement forms part of the proceedings and has not been controverted by any evidence or argument in either the affidavit or submission made in support of the application. Although the counsel did not say categorically what kind of cooperation he was denied by his client, however, since the case is for parties, and Advocates are there to represent the parties, therefore failure of the party who instructed the advocate to make follow-up is tantamount to failure to give proper instruction to the Advocate how to represent the said parties. Moreover, the applicant alleges that the Advocate did give him the Notice of withdrawal before he withdrew from the conduct of the matter and in his view, that was against Regulation 63 (2) of the Advocate (Professional Conduct and Etiquettes) Regulation 2018 GN, 118 of 2018, which requires the Advocate to withdraw the service only on the ground of good cause and upon written Notice to his client. The provision is under PART IX of the Regulation, and it is titled "The Duty of An Advocate" Reading the provision I am convinced that the duty is of the Advocate toward his client, therefore in my considered view, the provision creates a responsibility to the Advocate to his client, and failure to fulfill that duty attract a sanction of course after the client has complained against the Advocate before the Advocates Disciplinary Committee which should take the disciplinary measures against the Advocate. Had the applicant done so, that would have at least created a base, for the applicant to be believed, failure to do so, leaves this court with only one option, to believe the Advocate who is the officer of the court. On this issue, I would like to associate myself with the findings of my brother, Kisanya, J in the decision of the case of KFinance Limited vs Lipina Michael Mrema, (Supra) and his reliance on the case of Lim Han Yun and Another vs Lucy Theseas Kristensen, (supra) that engagement of an Advocate does not obliviate, the parties’ duty to make a follow-up of his or her case. That being the case, I find the reason advanced by the applicant in asking the court to set aside its dismissal order to be insufficient for the court to exercise its powers to set aside the dismissal order. That said, I find the application to be devoid of merit, and thus dismiss it with costs. Consequently, the order dated 06/09/2023 that dismissed Misc. Civil Application No. 50 of 2023 is upheld. It is accordingly ordered. DATED and delivered at ARUSHA this 19th day of July 2024. JUDGE IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT ARUSHA MISC. LAND APPLICATION NO. 5944 OF 2024 (Originating from the District Land and Housing Tribunal for Arusha, Misc. Land Application No. 43 o f 2022) CHARLES RAYANZE................. ....................................... I st APPLICANT PENDAEL CHARLES....................... ........................... ...... 2NDAPPLICANT Versus CHRISTOPHER SOLOMON........... .......................................RESPONDENT RULING 22nd May & 5th July, 2024 TIGANGA, J. The applicants herein preferred this application under section 41(2) of the Land Disputes Courts Act, Cap. 216 [R.E 2019] (hereinafter Cap. 216), moving the court to extend them time to lodge appeal against the decision of the District Land and Housing Tribunal for Arusha (hereinafter DLHT) in Misc. Land Application No. 43 of 2022, which was handed down on 29/05/2023. The application is supported by a joint affidavit deponed by the applicants. The respondent contested the application in a counter affidavit deponed by himself. Narrative facts of the dispute which gave rise to this application as discerned from the affidavits and annexes thereto, unveil the following: 1 I Page The respondent herein sued the applicants at Sambasha Ward Tribunal (hereinafter the ward tribunal) vide Application No. 2 of 2020, claiming ownership of a piece of land measuring 403 paces length by 25 paces width, located at Masaga hamlet, Shiboro village, Sambasha ward within Arumeru District and Arusha Region. The ward tribunal delivered its judgment in March 2020, declaring the respondent the lawful owner of the disputed land. As the record bears, the applicants were aggrieved by that decision on the account that the disputed land belonged to their elder brother Samwel Rayaseki, but there was no appeal preferred to challenge that decision until time to appeal lapsed. The respondent instituted Misc. Land Application No. 209 of 2021 in the DLHT, seeking to execute the decision of the ward tribunal. In its decision delivered on 04/03/2022, the DLHT ordered the applicants to give vacant possession and demolish any structure erected at the disputed land within 14 days. Seemingly, the applicants did not heed the order of the tribunal. Court broker known as Kilicraas Adventure & Safaris Co. Limited was appointed by the DLHT to evict the applicants and hand over the suit land to the respondent. The applicants were evicted forcefully on 06/05/2022. The disputed land was handed over to the respondent by the appointed court broker and report issued to the tribunal to that effect. According to the respondent, the applicants continued to trespass in the suit land. He sued them for criminal trespass at Emaoi Primary Court vide Criminal Case No. 459 of 2023 which was later found to be a land dispute; hence the applicants were acquitted. In that wake, the applicants instituted Misc. Land Application No. 43 of 2022 in the DLHT, seeking extension of time to file appeal against the decision of the ward tribunal. In its ruling delivered on 29/05/2023, the DLHT dismissed the application for want of jurisdiction after noting that the provisions under which the application was preferred were repealed. The applicants instituted Misc. Land Application No. 80 of 2023 in this court seeking extension of time to file appeal against the decision of the DLHT, but the same was withdrawn on 07/03/2024 for being incompetent. On 15/03/2024, they preferred this application on the orders above pointed. At the hearing of the application, the applicants were represented by Ms Upendo Msuya and Mr. Jackson Msuya, learned advocates while the respondents were represented by Dr. Ronnilick Mchami, learned advocate. The application was heard viva voce. Both counsel for the parties adopted the affidavits in support of their respective positions forming part of their submissions. Submitting on the substance of the application Ms Msuya contended that the application is based on illegality apparent in the impugned decision. Pointing out the illegality, she underscored that the chairman raised an issue whether the tribunal had jurisdiction to extend time for the applicants to lodge appeal, but it resolved that it had no jurisdiction and dismissed the application without affording the parties right to argue on the issue. She underpinned that this court is vested with powers to extend time for a party to lodge appeal as prescribed under section 41(2) of Cap. 216. Taking over, Mr. Jackson Msuya accounted that since the application is based on the ground of illegality, there is no need of accounting for each day of the delay, making reference to the following decisions: Principal Secretary, Ministry of Defence and National Service vs Devram P. Valambhia [1992] TLR 387, Agnes Chacha vs Patrick Muriani, Misc. Civil Application No. 137 of 2021 and Mary Rwabizi t/a Amuga Enterprises vs The National Microfinance Bank PLC, Civil Application No. 378/1 of 2019 (both Unreported). Mr. Msuya admitted that section 20 of Cap. 216 was repealed by section 47 of Misc. Amendment No. 3 of 2021, but section 19 which remained unrevised, directs that any person aggrieved by the decision of the ward tribunal to appeal to the DLHT. Since the applicants were aggrieved by the decision of the ward tribunal which was delivered in 2020, they were denied the right to appeal 4 |Page under section 19 as per the decision of the DLHT. He implored the court to find the application merited based on the illegality and allow the same. In response, Dr. Mchami resisted the application stating that the applicants'joint affidavit has not disclosed sufficient cause to warrant the extension of time sought. He relied on the doctrine of Equity provided under section 2(3) of the Judicature and Application of Laws Act, Cap. 358 [R.E 2019], insisting that whoever comes to equity, must come with clean hands. In his view, the applicants have no clean hands because the decision of Sambasha ward tribunal has already been executed by the DLHT through Application No. 209 of 2021 as deponed under paragraphs 5, 6 and 7 of the counter affidavit and annexture Rl, R2 and R4. It was his insistence that as soon as they were evicted from the disputed land by the court broker, the applicants went back there and they are still there to date, which explicitly proves that they have come to equity while tainted with unclean hands. According to Dr. Mchami, the applicants have failed to account for each day of delay for a total of 241 days they stayed idle without filing their intended appeal. He relied on the decision of the Court of Appeal in the case of Muse Zongori Kisere vs Richard Kisika Mugendi and 2 Others, Civil Application No. 244/01 of 2019 (unreported), which underscores that a party who seeks to be extended time has duty to account for each day of the delay. Regarding the illegality pointed out by the applicants' advocates, Dr. Mchami pointed out that it does not exist as it is not apparent. He maintained that for an illegality to be featured as ground for extending time, it has to be apparent on the face of the record. He made reference to the following decisions to back up his submission: Hussein Said vs Republic, Criminal Appeal No. 159 of 2018 and Yohana Balole vs Anna B. Balongo, Civil Appeal No. 18 of 2020 (Both unreported). Counsel supported the decision of the tribunal that it was justified to satisfy itself whether it had jurisdiction to entertain the matter and it was correct to conclude that it had no jurisdiction. Attacking the affidavit by the applicants, Dr. Mchami invited the court to disregard it as it contains false information referring paragraphs 4, 5, 6, 7 and 9. It was his submission that an affidavit which contains false information is as good as no affidavit. To bring his argument home, he referred the following decisions of the Court of Appeal: Ignasio Mesina vs Willow Investment Sprail, Civil Application No. 21 of 2001 and Bashiri Ally vs Mwamakula David, Civil Appeal No. 49 Of 2021 (Both unreported). He prayed for dismissal of the application with costs. In their lengthy rejoinder submission, counsel for the applicants maintained that an application which is based on illegality, the requirement to account for each day of delay is dispensed with so as to 6 |Page cure the illegality by putting the record straight. To bolster their contention, counsel referred the following cases: VIP Engeenering and Marketing Ltd and 2 Others vs CITI Bank Tanzania Limited, Consolidated Civil References No. 06, 07 and 08 of 2006 and Geita Gold Mining Ltd vs Yuaja Rumerwa, Misc. Labour Application No. 21 of 2022 (Both unreported). Denial of the parties the right to argue on the issue raised by the DLHT chairman amounts to an illegality which constitute sufficient cause for extending time. Further reference was made in the Court of Appeal decision in the case of DPP vs Al-Halil Hilal Omary Kombo, Criminal Appeal no. 66 of 2023 (unreported). Regarding the respondent's counsel submission that the affidavit contained false statements, the learned counsel for the applicants submitted that the paragraphs referred as containing false statements do not go to the root of the application. Regarding the doctrine of equity relied upon by counsel for the respondent, the learned advocates for the applicants submitted that digging into the doctrine is tantamount to determining the merits of the intended appeal. The duo stoutly submitted that the applicants were not idle, they exhausted every avenue available to them to pursue their rights referring the Applications they filed in this court. In their view, the DLHT chairman ought to have heard the application because the case at Sambasha ward tribunal was instituted prior to amendment of the law. They maintained their prayer that the application be granted so that they can be heard in the intended appeal. I have given deserving weight to the affidavits and annexes as well as oral submissions by counsel for both sides. Essentially, the pivotal issue for determination is whether the applicants have furnished sufficient cause for the delay to warrant the extension of time sought. Extension of time may only be granted where it has been sufficiently established that the delay was with sufficient cause. The power to extend time given under the law is discretional, but courts are called upon to exercise such discretion judiciously. In this respect, I am guided by the Court of Appeal decision in Wankira Benteel vs Kaiku Foya, Civil Reference No. 4 of 2000 (unreported), where it was held: 'We are respectfully in agreement with the learned single judge on this. We only wish to emphasize that although Rule 8 o f the Court Rules, 1979 gives a discretional power to the Court to extend time such discretion can only be used where there is sufficient reason. Generally, rules o f procedure must be adhered to strictly unless justice clearly indicates that they should be relaxed." The question is whether the applicants in this application are covered by sufficient cause above explained. Under paragraphs 6, 7, 8 and 10 of the affidavit in support of the application, the applicants hinged the application on existence of an illegality apparent on face of record in the impugned decision. Referring the said illegality, both counsel for the applicants insisted that the DLHT chairman raised the issue whether the tribunal was vested with jurisdiction to entertain the matter and resolved it in the negative without affording parties right to submit on the same. On his part, counsel for the respondent was insistent that the purported illegality is not apparent on the face of record, coupled with the fact that the applicants failed to account for each day of delay militates denying them the extension of time sought. At the outset, it is trite law that illegality constitutes sufficient cause for extending time where the alleged illegality is apparent on the face of record and not the one to be discovered by long drawn argument or process. In the case of Constantine Victor John vs Muhimbili National Hospital, Civil Application No. 214/18 of 2020 (unreported), it was held: "In VIP Engineering and Marketing Limited (supra), for instance, the Court had the view that where a point o f law at issue is the illegality o f the impugned decision that is of sufficient importancef it constitutes good cause for extending time. "(Emphasis added) Similar position has been stressed in the case of Marry Rwabizi t/a Amuga Enterprises (supra), where it was held in extensoXhat: "Thus, since the intention o f the applicant is to place before the Court on review the argument that the error apparent on the face o f the record has made the decision o f the Court to be illegal, there is, in my view, no need o fgoing further at this stage o f the application to demand the applicant to divulge further and better particulars o f alleged illegality. Certainly, if given opportunity, the applicant will expound further the allegation contained in the above reproduced paragraphs o f the affidavit in support o f the application. It is noteworthy that in the said paragraphs the thrust o f the applicant's claim on the illegality o f the judgment o f the Court is that the same is based on incorrect facts o f the case. Therefore, to demand further explanation at this stage, will in my view, be prejudicial to what the Court w ill have to deal with if an application for extension o f time is granted. It is equally inappropriate at this stage, I think, for me to go further and determine the substance o f the claim o f illegality." I have revisited the decision of the DLHT, which is subject of the intended appeal. I noted that the learned chairman while composing the ruling raised an issue whether the tribunal was vested with jurisdiction to determine the application for extension of time, taking cognizance that section 20(2) of Cap. 216 was repealed by the 2021 amendments. He was satisfied that the tribunal had no jurisdiction to determine the application for extension of time because the DLHT was ousted jurisdiction to 10 | P a g e entertain appeals from the ward tribunals. It is noteworthy that parties were not afforded opportunity to address the tribunal on that new issue. I have gone further step to ask whether it was appropriate for the tribunal chairman to indulge in determining whether the tribunal was vested with jurisdiction to entertain appeals from ward tribunals at the stage where it was dealing with an application for extension of time. That was a serious violation of the procedures. Jurisdiction to determine appeals from the ward tribunals, was subject for deliberation in the intended appeal and not in the application for extension of time. That is a serious illegality in the impugned decision which constitute sufficient cause for extending time. The rationale for considering illegality in the impugned decision as ground for extending time was underscored in the case of Abdulrahman Mohamed Ally vs TATA Africa Holdings (T) Limited, Civil Application No. 166/16 of 2021 (unreported), where it was held: '7 am therefore not prepared to stretch my muscles beyond what is expected o f a singie Justice in the instant application while aware that, it is my jurisdiction to separate the wheat from the chaff as illegality o f the impugned decision is not a panacea for all applications for extension o f time. It is only one in situations where, if the extension sought is granted, th at ille g a lity w ill be addressed. "(Emphasis added) Contention by Dr. Mchami that the illegality referred to by the Applicants' counsel is not apparent on the face of record, is not supported by the record. As indicated above, the chairman raised the issue regarding jurisdiction of the tribunal to determine the application without affording parties right to address him on it. Denial of the right to be heard entails breach of the principles of natural justice. In the famous case of Abbas Sherally & Another vs Abdul S. H. M. Fazalboy, Civil Application No. 33 of 2002 (unreported) the Court of Appeal of Tanzania made the following commentary: "The right o fa party to be heard before adverse action is taken against such a party has been stated and emphasized by court in numerous decisions. That right is so basic that a decision which is arrived at in violation o f it wiii be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach o f naturaljustice." The fact that the decision of the DLHT was arrived at in violation of the principles of natural justice, its decision was tainted with illegalities which calls the attention of this court to address in the intended appeal. In the case of Lyamuya Construction Company Limited vs Board of Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 02 of 2010 (unreported), the Court underscored: "The Court there emphasized that such point o f law, must be that "of sufficient importance” and I would add that it must also be apparent on the face o f the record, such as the question o f jurisdiction; not one that would be discovered by a long-drawn argument or process” (Emphasis added) In the application at hand, denial of the parties' right to address the tribunal on the jurisdictional issue raised by the chairman suo motu, amounts to an illegality which constitutes sufficient cause for extending time. Further, the question whether the tribunal lacked jurisdiction to entertain the application is another serious legal issue to be addressed in the intended appeal. Thus, in view of the fact that there is an alleged illegality, I find it appropriate under the circumstances to allow the application on the basis of this point so that the issue may be considered. In the result, the application is hereby granted. The applicants are given 14 days within which to file the intended appeal in this court. Costs shall be in the cause. It is accordingly ordered. DATED and delivered at ARUSHA this 05th day of July, 2024. 13 | P a g e THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB-REGISTRY AT ARUSHA CRIMINAL APPEAL NO. 6636 OF 2023 (<Originating from Criminal Case No. 161 o f2022, from the District Court o fArusha, the decision by the Hon. J. E EDWARD - SRM date on 21 February, 2024) FLORA JOHN FRANCES@FROLA KULWA MVANGA................... APPELLANT Versus REPUBLIC........................................................................RESPONDENT JUDGMENT 10th June 09th August 2024 TIGANGA, J. The Appellant in this case stood charged before the District Court of Arusha in in Criminal Case No. 161 of 2022, with three counts, namely forgery contrary to sections 333, 335(a) and 337, uttering false document contrary to section 337 of the Penal Code (supra), and uttering false document contrary to section 342 of the Penal Code [Cap 16 RE 2022], respectively. After full trial, she was found guilty and convicted and sentenced to four (4) years jail imprisonment for the first offence; and one (1) year jail imprisonment for the second and third offences. According to the particulars of the offences as per the charge sheet, she was accused that on unknown dates and unknown place in the year Page 1 of 25 2010, she, with intent to defraud did make a forged marriage certificate with Number 00770825, purporting to show that John Francis @ Ambrose married her (the Appellant), the act she knew to be false. More so, she was accused of having fraudulently uttered the said documents before the Arusha Urban Primary Court Magistrate, and Land Officer Moshi District Council on 15th June 2010 and 2nd August 2020, respectively. The evidence was brought to prove these facts and after a full trial, the court found the prosecution to have proved the case beyond reasonable doubt, consequent of which she was found guilty, convicted, and sentenced as indicated above. Being dissatisfied by the conviction and sentence, the appellant has filed an appeal based on the following twelve (12) grounds: - 1. That, the learned trial Magistrate erred in law and in fact by convicting and sentencing the appellant by relying on the evidence o f expert witness (PW2) as the trial Magistrate failed to evaluate and scrutinize the said evidence consequently arriving to an erroneous decision. 2. That, the learned trial Magistrate erred in law and in fact by convicting and sentencing the appellant by relying on the evidence o f incredible, unworthy and untruth witnesses, Page 2 of 25 including PW3 and PW4 as the trial Magistrate failed to evaluate and scrutinize the said evidence consequently arriving to an erroneous decision. 3. That, the learned trial Magistrate erred in law and in fact for failure to consider the proof o f Exhibit D2 issued by the Registration, Insolvency and Trusteeship Agency (RITA) Headquarters that the purported marriage exists and in fact the Marriage between the appellant and the late John Francis Ambrose was contracted consequently arriving to an erroneous decision. 4. That, the learned trial Magistrate erred in law and in fact by convicting and sentencing the appellant as she failed to differentiate between matrimonial/family case, Probate Case and Land Case, which from the available evidence those disputes exists and ought to be resolved first in accordance with the law before embarking to the criminal court for criminal allegations case consequently arriving to an erroneous decision. 5. That, the learned trial Magistrate erred in law and in fact by convicting and sentencing the appellantby relying on the hearsay evidence o f almost all prosecution witnesses consequently arriving to an erroneous decision. Page 3 of 25 6. That, the learned trial Magistrate erred in law and in fact by convicting and sentencing the appellant by considering irrelevant evidence o f the prosecution witnesses consequently arriving to an erroneous decision. 7. That, the learned trial Magistrate erred in law and in fact by convicting and sentencing the appellant while the prosecution did not call the important and material witnesses to testify consequently arriving to an erroneous decision. 8. That, the learned trial Magistrate erred in law and in fact by convicting and sentencing the appellant for failure to appreciate the position o f law that irregularities in the marriage certificate does not invalidate marriage consequently arriving to an erroneous decision. 9. That, the learned trial Magistrate erred in law and fact by convicting and sentencing the applicant while the prosecution did not prove the allegedly offences to the standard required by the law. 10. That, the learned trial Magistrate erred in law and fact for failure to scrutinize and evaluate the evidence adduced during trial hence arriving to an erroneous decision. Page 4 of 25 11. That, the learned trial Magistrate erred in law and fact for failure to consider and neglecting the strong evidence adduced by the appellants which contradicted with the evidence adduced by the prosecution witnesses hence arriving to an erroneous decision. 12. That, the learned trial Magistrate erred in law and fact in issuing a sentence without considering the mitigating factors raised by the accused as she given little accord to the said mitigation factors of the accused hence arriving to an erroneous decision. The appeal was argued by way of written submissions as the court ordered, the appellant procured the legal service of Ally Mhyellah, Advocate, while the respondent republic was represented by Stanislaus Halawe, State attorney. Submitting in support of the appeal, the Appellant started by consolidating the first, eighth, ninth, and tenth grounds of appeal and proceeded to argue them as one ground. He submitted, in respect of the consolidated ground that the trial magistrate erred in having failed to analyse the evidence adduced in court as seen on pages 10-11 of the Page 5 of 25 judgment, and the testimony of PW2 on pages 17-20 of the typed proceedings. He alleges that, the trial magistrate did not take on board the fact that in 1992 PW2 was yet to be employed as a District Registrar of marriage, when the appellant contracted her marriage. More so, he submitted that, the trial court did not take on board the fact that the said marriage certificates and documents were sent to the Registration, Insolvency and Trusteeship Agency (RITA) Headquarters who were able to prove that the said marriage existed vide Exhibit D2 which is the certified true copy of marriage certificate from Marriage Registered Entry book of RITA. Mr. Mhyellah invited this court to look upon sections 46, 47 (1) and 48 (1), (2), (3) of the Law of Marriage Act, Cap. 29 [R.E 2019]. He submitted that; the said provisions requires that all marriages solemnised by RITA's agent upon its completeness should have the information sent to RITA. It was his submission that, any search for the validity of marriage should be done by RITA. Therefore, he invoked section 41 of the LMA, and contended that if the certificate has procedural irregularity or marriage failed to be registered is still valid on the eyes of law. Page 6 of 25 Regarding the second ground of appeal, Mr. Mhyellah contended that the testimonies of PW3 and PW4 as seen from pages 17-22 are not credible and are unworthy of credit. It was his submission that, the trial court failed evaluate and scrutinize the said evidence. According to Mr. Mhyellah, based on their relationship, there was grudges and conflicts between them. He alleged that, 1992 the appellant, PW3 and PW4 were in good terms, but their conflict arose when the appellant demanded title deed from them, as they were impersonating with intent to defraud the appellant's house. He said, it was when PW3 and PW4 started to react against the appellant. He cited cases of Stanslaus Rugaba Kasusura and the Attorney General v Phares Kabuye [1982] TLR 338, Yasin Ramadhan Chang'a v R [1999] TLR 489, and Ndizu Ngasa v Masisa Magasha [1999] TLR 202 to support his assertion. In respect of the third ground, he submitted that, Exhibit D2 is a valid document issued by a competent authority and was never challenged by the prosecution. The said exhibits presuppose the contracting marriage, he said. Submitting in support of the fourth ground, it was his submission that, the legality of marriage certificate was supposed to be proved by opening a civil case and follow its procedures. He contended that the Page 7 of 25 Exhibits P4 and P12 are likely to prove the legality of the two existed marriages, and not forgery. He invoked the provision of section 4 (3) of the Criminal Procedure Act, [Cap. 20 R.E 2022] that if a matter is in nature of civil, administrative or criminal then the remedies in civil or administrative domains shall be mandatory prior to invocation of the criminal process. It was his further submission that, the trial magistrate dealt with a lot of civil cases in criminal court. In his further submission, he argued in support of the fifth and sixth grounds together. He cited section 62 of the Evidence Act, [Cap. 6 R.E 2022], which provides that oral evidence must in all cases whatever, be direct. He alleges that the trial magistrate failed to recognize that the evidence was a hearsay. And PW9 who testified as an investigator was a stranger to the appellant and other prosecution witnesses as well. In respect of seventh and eleventh grounds of appeal which were argued combinedly, Mr. Mhyellah, asserted that, the prosecution failed to call an important witness from RITA Headquarters and the District Registrar of 1992 who were in a good position to testify on the matter. Following that omission, he invited this court to draw an adverse inference to the prosecution. More so, the prosecution failed to call Sgt. Abdallah who was mentioned by several prosecution witnesses to have investigated Page 8 of 25 the case from the beginning. He referred to the case of Kasim Arim @ Mbwawala, Criminal Appeal No. 607of 2021 and Hemedi Said v Mohammed Mbilu (1984) T.L.R 113. He further submitted that the contradiction between the evidence adduced by PW7 and PW9 concerning marriage certificates (Exhibit P4 and P12) is to be dealt with accordingly. He cited the case of Mathias Bundala v Republic, Criminal Appeal No. 62 of 2004, TZCA 16 (16 March, 2007) TANZLII. Coming to the last ground, the counsel for the counsel for appellant submitted that, the trial magistrate failed to consider the mitigating factors. He contended that the appellant is seriously sick and HIV positive, and requires regular medication and special diets. He therefore prays to this Court to step in the shoes of the trial court and remedy the situation if at all this court will find the appellant has committed any offence. Hence, he prays to this Honourable Court to quash and set aside the judgment of the trial court and order the release of the appellant from prison. In reply to the submission in chief, the counsel for the Respondent argued the first, eighth, ninth, and tenth grounds of appeal together. He opposed the allegation that the trial magistrate relied on the evidence of PW2 only to convict the appellant, rather the trial court relied on Page 9 of 25 evaluating and scrutinizing the evidence of PW1, PW2, PW3, PW4, PW5, PW6, PW7, PW8, and PW9, which all considered together proved to the satisfaction of the trial Court that the prosecution evidence proved the offence. He further submitted that, PW2 did not confess that the marriage was celebrated between the appellant and John Francis Ambrose (the deceased) in 1992, rather PW2 testified that Exhibit P2 suggests that the purported marriage seem to have been celebrated in 1992. It was his further submission that, the counsel for the appellant is misleading the court as it was the evidence of PW2 that there is no records of Exhibit P2 (marriage certificate) between the appellant and the deceased in their office. He said even when he sent the particulars to the Registrar, during investigation of Exhibit P2, it was discovered that the registration number indicated in Exh. P2 does not exist. In the same line, it was his submission that, the evidence of PW2 was corroborated by that of PW3 and PW4 who appeared to be witness of Exhibit P2. PW3 and PW4 denied to have witnessed such marriage and that, by that time they had not met and did not know each other. They averred that they married in 2002, and met the appellant in first time in 1996. Page 10 of 25 In addition to that, it was his contention that, PW9 as well corroborated the evidence. According to him, the evidence reveals that he wrote a letter to the office of the Registrar of Marriage, and received a reply that there is no records proving that, there was no such marriage and therefore did not recognize the purported marriage. Mr. Stanslaus Halawe, averred further that, the appellants contention that exhibit D2 is a substitute or compliment of exhibit P2. He further stated that, the certified true copy of the marriage certificate from the entry book is issued after the original marriage certificate got lost, destroyed or burnt as testified by PW2 at pages 18 and 47 of the trial court proceedings. More so, the appellant did not bring any witness from the registrar to testify in respect of exhibit D2. Furthermore, the PW2 did not say that the marriage records of 1992 are not found, rather the record of Exhibit P2 purported to be a valid marriage certificate does not exist. Replying the second ground of appeal, he submitted that PW3 and PW4 testified before the trial court, on pages 20-26 of the trial court proceedings. He averred that PW3 and PW4 are husband and wife respectively, they categorically told the trial court that they never witnessed the purported marriage between the appellant and the deceased in 1992, and never knew about Exhibit P2 in 1992. According to Page 11 of 25 them, in 1992 they had never met. From 31/08/1991 to 3/04/1992 he was at CCP Moshi for Police Course. It was his further submission that, the trial magistrate observed PW3 and PW4 when testifying including their demeanour, at the end of the day, the trial court was satisfied that these two witnesses were credible. He referred the case of Salum Muhando v The Republic [1993] TLR 170, and the case of Goodluck Kyando v The Republic (2003) TLR 363. When addressing the third ground, the counsel submitted that it is devoid of merit. It was his submission that, he already addressed this ground when addressing the 1, 8, 9 and 10 grounds of appeal. PW2 testified that, when a person lost a marriage certificate, spouses may apply to the registrar general and upon search conducted by the office, he/she may be issued with a copy of an entry in a marriage register. He argued that, why would one go to the certified true copy while she had the original and genuine one? He submitted that it was a continuation of deception and illegally acquiring the deceased estate being Plot No. 355, Block C at Njiro. Submitting on the fourth ground, the counsel contended that the appellant's view is misplaced. The appellant stood charged with three counts namely; forgery contrary to section 333, 335 (a) and 337 of the Page 12 of 25 Penal Code, [Cap. 16 R.E 2022], uttering false document contrary to section 342 and 337 of the Penal Code, [Cap. 16 R.E 2022]. It was his submission that, no civil dispute or claim whatsoever that was ever alleged by the prosecution. In the circumstances section 4 (3) of the CPA does not apply. Further challenging the motion, he submitted that the appellant never raised this issue at the trial court. The appellant assertion that this matter is of civil nature at this stage are mere kicks of the dying horse and baseless. Addressing the fifth, sixth, seventh, eleventh and twelfth grounds of appeal, Mr. Hawale submitted on the issue of hearsay and irrelevant evidence that, it is apparent on record of the trial court from pages 13- 74, that from PW1 to PW9 all prosecutions witnesses gave direct evidence and tendered documentary exhibits as per the dictates of section 62 of the Evidence Act, [Cap. 6 R.E 2022]. He further contended that, the appellant's complaint that the prosecution failed to call material witness by failure to call the District Registrar who purported to have contracted the marriage in 1992. It was his submission that, the contention is misplaced as the appellant being the one who alleges to have contracted a marriage in 1992 with the deceased he is the one who required to prove. Page 13 of 25 Last, when addressing the appellant's complaint that the trial court failed to consider his mitigation is baseless. It is apparent on records on page 18 of the trial court judgment, where it clearly shown that the appellant's mitigations were considered before he was sentenced her accordingly. Finally, she submitted the trial court was satisfied that the prosecution managed to prove its case beyond reasonable doubt as such convicted and sentenced as charged. The appeal be found devoid of merit and dismissed. Rejoining, the appellant resisted the reply to the submission in chief, and addressed some issues raised by the respondent. I will not be repetitive of what was submitted in rejoinder, rather I will be addressing some tips when addressing the grounds of appeal. I have carefully considered the grounds of appeal, the appeal record, and both sides1 submissions. Before I proceed with the determination of this appeal, I wish to state that the first appellate Court is mandated to scrutinize, analyse, and evaluate the evidence taken before the trial Court and reach its own findings. As rightly submitted by the Appellant and as provided under sections 110 and 3(2)(a) Evidence Act, the burden of proof in criminal cases lies on the prosecution and the standard of proof is beyond reasonable doubt. Page 14 of 25 I will start by addressing combining the grounds number 1, 3 8, 9, and 10 grounds of appeal, simply because they relate to each other. Considering that the charges facing the Respondent had three counts, each of the counts needed to be considered separately to determine if it had been successfully proved or not. It is in this context that the trial court on page 7 of the judgment framed three issues, the first one being whether marriage certificate No. 00770825 is forged (falsification of the document), the second being if yes, whether the accused is the one who forged the said marriage certificate, and the third issue being whether the accused uttered false document to wit, marriage certificate No. 00770825 before Arusha Urban Primary court and Land Officer of Moshi District. However, it is settled law as held in the case of Rashid Abiki Nguwa vs Ramadhani Hassan Kuteya & Another Civil Appeal No. 421 of 2020 CAT-Dodoma, which relied on principle as had been applied in many of cases decided by that court including, Standard Chartered Bank of Tanzania Ltd vs National Oil Tanzania Ltd and Another, Civil Appeal No. 98 of 2008 quoted in The Registered Trustees of Joy in the Harvest vs Hamza K. Sungura, Civil Appeal No. 149 of 2017 (both unreported) wherein they stated: Page 15 of 25 "The law is weii settled that on first appeal, the Court is entitled to subject the evidence on record to an exhaustive examination in order to determine whether the findings and conclusions reached by the trial court stand (Peters v Sunday Post, 1958 EA 424; William Diamonds Limited and Another v R,1970 EA 1; Okeno v R, 1972 EA 32)." This being the first appellate Court it is entitled and can justifiably evaluate ascertaining whether the trial magistrate did accord considerable weight to the counts charged during the evaluation of evidence and the findings thereto. Having stated that, I now proceed to determine whether or not the magistrate erred in its holding that the three counts were proved beyond reasonable doubt. The offence of forgery is defined under section 333 of the Penal Code to mean the making of a false document with intent to defraud or deceive. As rightly argued by the appellant and respondent counsel, for the prosecution to establish the offence of forgery there must be three fundamental elements namely, one, there is a false document; two, it is the accused made such a document, and three and lastly, that, the accused made such document with intent to defraud or deceive. Concerning the first element, I have found that the prosecution through the testimony of PW2, PW3, and PW4 and Exhibits PI and P2 ably Page 16 of 25 established that the Marriage Certificate the subject of this charge was forged as it was proved to be a false document. Exhibit P2 (marriage certificate), clearly indicates that it was witnessed by PW3 and PW4. Surprisingly, the records and the evidence reveal that the testimonies of PW3 and PW4 denied to witnessed the marriage ceremony of appellant and the deceased. Further, they denied knowing the appellant in 1992. They testified before the trial court, that it was not until 1996 when they met for the first time. I am alive that, the appellants raised a concern that these two witnesses were biased and there was a conflict after she denied giving them a title deed to procure a loan facility. It is my considered view, despite such an assertion, yet I find the two witnesses (PW3 and PW4) credible. As correctly argued by both parties, it is the requirement of the law, that the one who alleges must prove, this is an import of section 112 of the Evidence Act, (supra) which provides that; "The burden o fproofas to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by law that the proof o f that fact shall He on any other person."/Emphasis added] Page 17 of 25 The prosecution discharged its burden by upfronting two witnesses who proved through their oral testimonies that they did not witness Exhibit P2, therefore it was a forged marriage certificate. In terms of section 112 of the Evidence Act, the appellant was duty-bound to prove the particular fact that he raised that PW3 and PW4 were biased simply because the appellant denied them the title deed to secure their loan, however, to my dismay, the appellant did not bring even a single person to prove that these people were biased witnesses because she denied them the security of their loan. I further agree with the counsel for the respondent that there was no need to obtain an entry of the true certified copy of the marriage certificate if Exhibit P2 was original and genuine. I will pose here and ask myself a question, if indeed, one has contracted a marriage ceremony and obtained a valid original certificate, was it necessary for her to look for a certified true copy of the original? In my view, it was easier to call upon the Authorities to testify on the truthfulness of the valid document, something that was never done by the appellant. The third element is a mental element, namely intent to defraud. The term defraud was defined by this court in Jones Ndunguru V Page 18 of 25 Republic [1984] TZHC 20 where the court quoted with approval the following decision of BUCKLEY, J in Re London and Globe Finance Corporation, [1903] 1 Ch. 728. "To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practicing the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state o f mind; to defraud is by deceit to induce a course o f action." Also illuminating is the definition provided by Humphreys J, in R v. Sullivan (1945) 30 Cr App R 132 pages 134 - 136 where he stated that: '7/7 order that a person may be convicted o f that offence i.e. "false pretences" it has been said hundreds o f times that it is necessary for the prosecution to prove to the satisfaction o f the jury that there was some misstatement which in law amounts to a pretence, that is, a misstatement as to an existing fact made by the accused person; that it was false and false to his knowledge; that it acted upon the mind o f the person who parted with the money, and that the proceeding on the part o f the accused person was fraudulent. That is the only meaning to be applied to the words "with intent to defraud". [...] Page 19 of 25 Thus, it is important to show that the maker of the document/statement made the representation while knowing it to be false or did not believe it to be true. In the instant case, the prosecution case established that the forgery was intended to make people believe that the appellant is a lawful wife of the deceased, to change ownership of the deceased's estate Plot 355 Block C, at Njiro. The person who did so was fully aware that he had never contracted the marriage with the deceased. Having found the first and third elements to be in the affirmative, the second element is who exactly committed the forgery or was it the accused who made the document/signed the document? There is no direct evidence to prove this issue because nobody has proven to have personally witnessed the appellant making the said document. However, there is overwhelming circumstantial evidence to prove that, one, there is enough evidence to prove that it was the appellant who presented the said document to both, the Primary Court and Land Officer. since he was the one who uttered the document pretending the same to be genuine, then she must have full knowledge of how she got the document, and since she did not state how he got it, then it can be correctly inferred that it is her who forged the document to make Page 20 of 25 authorities believe that she was married to the deceased, the status which made her the lawful heir of the deceased. Furthermore, since the document has the signatures of the persons (PW3 and PW4) who disowned the signature and the document in total then the only conclusion is that she is the one who forged the document. Not only that but also even the circumstantial evidence to that effect as can be inferred from the testimonies of PW2, PW3, PW4, and PW9. The testimony of PW2 is corroborated by the testimony of PW3, PW4, PW5, PW6, PW7, PW8 and PW9.1 am aware that, in her testimony the accused accounted that there was only a procedural irregularity on the party of the Authority by failure of the Registrar to append his signature on the certificate something that cannot render the said marriage forged. With due respect, it is not only that there is procedural irregularity, I hold so because there is enough evidence proving that there was no record of the existence of the marriage in the register of the registrar, that means that that marriage had never been contracted. In my view, the prosecution has managed to prove beyond reasonable doubt and to my satisfaction that this marriage was never contracted between the appellant and the deceased. Therefore, arguing Page 21 of 25 issues of procedural irregularity on the said marriage certificate is a mere sham. In the foregoing, while I agree with the trial magistrate that there was direct evidence linking the appellant to the crime, I am of the view the circumstantial evidence as well above stated adequately links the appellant to the crime. I am alive to the fact that conviction should not be based on circumstantial evidence except where the circumstantial evidence irresistibly leads to the conclusion that it is the accused and no one else who committed the crime or where the inculpatory facts are not capable of any other interpretation than that the person in the dock is guilty of the offence charged that is, it is incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt Bahati Makeja v. The Republic, Criminal Appeal No. 118 of 2006, CAT (unreported); Mathias Bundala v. The Republic, Criminal Appeal No. 62 of 2004, CAT (unreported); Wallii Abdallah Kibutwa, Kadili Ahmad and Happy Balama v. The Republic, Criminal Appeal No. 127 of 2003, CAT). When this test is applied to the above facts, it is clear that the evidence available on record resistibly points to the guilt of the Appellant. Page 22 of 25 As held in Chokwe vs Republic (1969) E.A. 23 the fact that the documents were at all material times in the possession of the appellant is sufficient to draw an inference that the appellant forged the document even without further proof. Accordingly, I find the 1, 8, 9, and 10 devoid of merit, they are dismissed for want of merits. As regards the second and third counts, although, indeed, the trial court did not address itself to resolving the issue it had framed concerning these two counts, this will not labour me much as there is evidence to show that indeed it was the Appellant who fraudulently uttered the forged documents to the Arusha Urban Primary Court, and obtained letters of administration and to the Land Officer of Moshi District Council and obtained Certificate of occupancy in her own name. The prosecution witness who testified in this respect was PW8 Dotto Paul Mayombo, he testified how the appellant fraudulently uttered the above documents to the Land Offices at Moshi while knowing that the same is not a genuine document. The appeal on this ground therefore also fails. Now, coming to the fifth, sixth, seventh, eleventh, and twelfth grounds, like the preceding ground, this also will not take much of my time. I have gone through the submissions of both sides. I agree with the Page 23 of 25 respondent's counsel, I have passed through pages 13-74, (PW1 to PW9) of the proceedings of the trial Court, with respect to the counsel for the appellant, there is no hearsay evidence that was given and up on which the trial court relied to convict the appellant. Therefore, the fifth, sixth, seventh, eleventh, and twelfth grounds lack merit, they are hence dismissed. Regarding the fourth ground of appeal, again, I agree with the learned State Attorney for respondent that, going through the three counts that the accused stands charged with, there is no element of civil or probate cases in all counts. In my considered view, it is a purely criminal case. It is my desired view that section 4 (3) of the Criminal Procedure Act is inapplicable in the instant matter. Hence the fourth ground is devoid of merit. Concluding on the last ground, the appellant submitted that, the trial court did not consider the mitigation. I have gone through the sentencing proceedings made by the trial court; indeed, I have seen the trial court took on board and acknowledged that the sentence for the offence of forgery is 7 years, and decided to sentence the appellant four (4) years to jail imprisonment for the first offence, and one (1) year jail imprisonment for the second offence, and the third offence. It is my view Page 24 of 25 that the trial court considered the mitigating factors of the sentence that is why it sentenced her below the maximum set sentence. In view of what I have demonstrated above, I disallow the appeal. Considering that the appellant's mitigation was considered, I hereby upheld the conviction and sentence as passed by the trial court. It is accordingly ordered. DATED and delivered at ARUSHA this 09th day of August 2024. J. C. TIGANGA JUDGE COURT: Right of Appeal is explained in full. JUDGE 09/08/2024 Page 25 of 25