CRIMINAL APPEAL NO 566 OF 2021 LOSIEKU NAMBARI V LEMOMO MOLLEL

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA LCQRAM: MUGASHA, J.A.. LEVIRA. J.A. And MAKUNGU. J.A.T CRIMINAL APPEAL NO. 566 OF 2021 LOSIEKU NAM BARI................. ........ .......... .................................APPELLANT VERSUS LEMOMO MOLLEL.......................................................................... RESPONDENT (Appeal from the ruling of the High Court of Tanzania at Arusha) (Mzuna. 3.) dated the 16th day of July, 2021 in Misc. Criminal Application No. 11 of 2020 JUDGMENT OF THE COURT 3* & 8thJuly, 2024 MAKUNGU. J.A.: On 16th July, 2021 a Judge of the High Court (Mzuna, J) dismissed with costs the appellant's quest for extension of time in which to lodge his appeal before the High Court in Misc. Criminal Application No. 11 of 2020. By this appeal, the appellant seeks the reversal of that decision on five grounds follows: 1. That, the High Court erred in law an in fact by not observing fundamental right of the right to a fair hearing of the appellant. 2. That, the High Court erred in law and in fact by ignoring the right to be heard of the appellant. i 3. That, the High Court erred in law and in fact by refusing to or did not recognize that there was/is illegality in the trial court proceedings. 4. That, the High Court erred in law and in fact by ignoring or by not recognizing that the appellant is/was vigilant and not the indolent. 5. That, the High Court erred in law and in fact by ignoring that the affidavit accompanying chamber application is sworn evidence. The background to the present appeal is that the appellant and one Sikili Mayese who is not a party to this appeal were arraigned before the Primary Court of Engasmet (the trial court) to answer the charge of assaults causing actual bodily harm, contrary to section 241 of the Penal Code [Cap 16 R.E 2019]. Upon a full trial, the charge against the appellant and his co-accused was dismissed. The respondent herein being aggrieved, appealed before the District Court where his appeal partly succeeded as the appellant was found guilty as charged. He was convicted and sentenced to a conditional discharge of one (1) year. Aggrieved, the appellant appealed to the High Court in PC Criminal Appeal No. 12 of 2018. However, the respondent objected to the appeal for being filed by a wrong party. Having entertained the objection, the High Court (Maige, J. as he then was) ruled that, since the appeal originated from Criminal Appeal No. 6 of 2017, the parties to that appeal were 2 Lemomo Mollel (the appellant) against Losieka Nambari and Sikili Mwarusha (the respondents). Thus, Nambari Losieku who appealed was not party at the lower court as he has not attached any instrument showing that he acted on a representative capacity. The objection raised was sustained and consequently, the High Court struck out the appeal for being incompetent. Desirous of refreshing his pursuit for appealing to the High Court, the appellant approached the High Court through Misc. Application No. 11 of 2020 for extension of time in which to lodge his appeal out of time. The said application was unrewarded, as alluded to earlier, Mzuna, J. dismissed that matter on 16th July, 2021 for want of merit. It is pertinent to have the essential averments contained in the supporting affidavit. In the present matter in which the appellant was denied extension of time by the High Court is challenging the denial to be granted extension. In paragraph 12, he averred that his delay in filing an appeal to the High Court was due to the technical reasons, as his appeal was struck out upon the objection by the respondent. On the other hand, the respondent filed his counter-affidavit and strongly opposed the application by the appellant. The respondent contended that the delay was born out of negligence of the appellant to have his appeal filed within time. He deponed that, the appellant failed to act promptly in seeking an extension of time. He stated that, when the appellant filed his application on 25th February, 2020, seven (7) months had already lapsed after the appeal was struck out. Based on the above averments by both parties, the High Court refused the application hence this appeal. Before the appeal was called on for hearing, on 27th June, 2024 the respondent filed his notice of preliminary objection on two grounds: One, that the appeal is incompetent for contravening the provisions of rule 70 of the Tanzania Court of Appeal Rules, 2009 (the Rules) Two, that the appeal is incompetent for contravening the provisions of rule 72(3) of the Rules. The appeal was argued before us by Messrs. Samson Rumende and Lengai S. Loite, learned advocates for the appellant and respondent, respectively. It is settled that, once an objection is raised, the same must be disposed of first. However, after a brief dialogue with the Court, Mr. Loite readily abandoned his objection and we proceeded with the hearing of the appeal. Mr. Rumende abandoned grounds 1, 2 and 5 of appeal and decided to argue grounds 3 and 4 only. He prayed to start with ground 4 and then ground 3. 4 The thrust of Mr. Rumende's argument in ground 4 was that the appellant sought extension of time to institute a notice of appeal to restart his pursuit to appeal after his first appeal was struck out on 1st August, 2019. He submitted that the delay involved in the matter was not actual but technical as it arose from the striking out of the initial appeal. It was his contention that the said delay ought to have been excused because the appeal was filed in time but it was struck out for other reason and not it was time barred. He submitted that, after the striking out of the original appeal, the appellant was in the corridors of the court filing various applications including Misc. Criminal Application No. 56 of 2020. On being probed by the Court if the supporting affidavit disclosed those applications, Mr. Rumende acknowledged the non-disclosure of those cases. Yet, the learned counsel stood to his ground and beseeched the ground to be allowed. Mr. Loite, on the other hand, fervently resisted the appeal on the ground that the application before the High Court disclosed no good cause to warrant an extension of time prayed for. He contended that, as found by the learned Judge, the delay involved was uncounted in the supporting affidavit contrary to the settled position of the Court that each and every day of delay must be accounted for. He pointed out that there is an unaccounted and unexplained delay of almost seven (7) months form 1st 5 August, 2019 when the appeal was struck out up to 25th February, 2020 when the application was filed. We have examined the material on record and given a careful consideration to the submissions of the learned counsel for the parties on whether good cause was given to warrant the requested extension of time. It is settled that extension of time is a matter of discretion on the part of the court and that the discretion must be exercised judiciously and flexibly with regard to the relevant facts of the particular case. Admittedly, it has not been possible to lay down an invariable definition of good cause so as to guide the exercise of the court's discretion. Nevertheless, the Court has consistently looked at a number of factors such as the reasons for delay, the duration of the delay, whether the applicant was diligent, the degree of prejudice to the respondent if time is extended, to name but a few. See- for instance, Dar es Salaam City Council v. Jayantila P. Rajani, Civil Application No. 27 of 1987; and Tanga Cement Company Limited v. Jumanne D. Masangwa and Amos A. Mwalwanda, Civil Application No. 6 of 2001 (both unreported). In determining the merit of the instant appeal, we find it convenient to state, at first, that the learned Judge refused the application primarily on the ground that no reason for the entire period of delay was given. In 6 order to determine whether that finding was justified or not we shall look at the duration of delay involved. The delay starts from 1st August, 2019 when the original appeal was terminated up to when the application for extension of time was lodged. In explaining the delay, the supporting affidavit states in paragraph 12 that following the striking out of the appeal in the High Court which was dismissed on 1st August, 2019 and the application was filed on 25th February, 2020. As indicated earlier, in response to our probing, Mr. Rumende acknowledged that the supporting affidavit did not disclose the applications filed in the High Court after the initial appeal was struck out. In our considered opinion, the undisclosed detail was crucial for the learned Judge to determine if the appellant had acted with promptitude to revive the appeal process after the pronouncement of the ruling of striking out the original appeal. We would, therefore endorse Mr. Loite's submission that the appellant failed to account for each and every day of delay in the instant matter - See Bashiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (unreported). The appellant failed to establish how those days were utilized to pursue an appeal which is contrary to the law. The Court faced an akin situation in William Kasanga v. Republic, Criminal Application No. 79/01 of 2020 (unreported) and observed that: "In the current application, the applicant has failed to account for a period of more than three months which in my view cannotjust be ignored". Given the above, the delay of 7 months is inordinate. The appellant ought to have accounted for each day to warrant the enlargement. Therefore, this ground has no merit. Submitting on ground 3 of the appeal, Mr. Rumende argued that, it was an error on the part of the learned Judge to refuse or ignore that there was illegality in the decision of the District Court. To support his submission, he referred us to section 21 (1) (b) of the Magistrate's Court Act, [Cap 11 R.E. 2019]. According to him, the District Court Magistrate has no power to sentence but to refer the matter to the Primary Court Magistrate to do that. On being probed by the Court if the issue of illegality was one among the averments featuring in the affidavit, Mr. Rumende acknowledged the non-disclosure in the affidavit but argued to have raised in the submissions and implored on us to consider the same. He argued that the issue of illegality can be raised at any time. Yet, the learned counsel stood to his ground and beseeched the appeal to be allowed. In reply, Mr. Loite submitted that the appellant failed to point out the alleged illegality before the learned High Court Judge when the application 8 for extension of time was heard. He argued that the High Court refused to enlarge time on the appellant for the reason that the alleged illegality is not apparent on the face of the record. To support his argument, he referred us to the decision of this Court in Finca (T) Limited and Another v. Boniface Mwalukisa, Civil Application No. 589/12 of 2018, (unreported). We are aware that illegality is a ground to extend time and it can be raised at any time. See Principal Secretary, Ministry of Defence, National Service v. Devram Valambia [1992] T.L.R 185. In determining this ground, we have to see what section 21 (l)(b) of the Magistrate's Courts Act, which this ground relates. It reads: "21 (1) In the exercise of its appellate jurisdiction, a district court shall have power- (a)~ (b) Whether or not additional evidence is heard or taken, to confirm, reverse, amend or vary in any manner the decision or order appealed against (including power to substitute a conviction or a conviction and sentence for an acquittal), so however that the decision or order as altered shall not be in excess of the jurisdiction of the primary court and no conviction or conviction and sentence shall be substituted for an acquittal, and no sentence shall be enhanced, unless the accused or 9 convicted person; as the case may be, has been given an opportunity of being heard". From the wording of the above provision, it is clear to us that the District Court which reversed the acquittal and substituted it with conviction has power to do what it did in that appeal. We do not agree with the thinking of Mr. Rumende who viewed that the District Court had no jurisdiction. As indicated earlier, in response to our probing, Mr. Rumende acknowledged that the issue of illegality was raised during submission by an advocate and ought to have been considered. The Court in Bruno Weceslaus Nyalifa v. Permanent Secretary Ministry of Home Affairs and Another, Civil Appeal No. 82 of 2017 (unreported) stated that: "Submissions are not evidence. Submissions are generally meant to reflect the general features of a party's case. They are elaboration 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". We have revisited the decision of the District Court and could not find the illegality put forth by the appellant's counsel. We agree with the finding of the learned Judge on the matter that there is no apparent illegality in the decision of the District Court, thus this complaint also fails. 10 In the final analysis, we find no basis to interfere with the learned Judge's exercise of discretion in the matter. The appeal stands dismissed. DATED at ARUSHA this 6th day of July, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL The Judgment delivered this 8th day of July, 2024 in the presence of Mr. Lengai S. Loita, learned counsel for the Respondent also holding brief for Mr. Samson Rumende, learned counsel for the Appellant, is hereby certified as a true copy of the original. ii