lucas kawasa igusa vs sengerema sigili 2014 tzhc 2070 27 august 2014

IN -PH£ -HIGH COURT OF T A N Z A N IA AT SUM 3 A W AN G A PC CRIMINAL APPEAL NO.4 OF 2012 (Appeal from the decision of the District Court of Sumbawanga in Criminal Appeal No. 23 of 2011 and Original Criminal Case No. 102 of 2009 in Mtowisa Primary Court) LUCAS KAWASA IG U S A ..............................................APPELLANT Versus SENGEREMA S IG ILI................................ ................ RESPONDENT 19* June& 27thAugust/ 2014 JUDGMENT MWAMBEGELE, 3.: The appellant Lucas Kawasa Igusa instituted criminal charges against the respondent Sengerema Sigili in the Primary Court of Mtowisa for criminal trespass c/s 299 of the Penal Code, Cap. 16 of the Revised Edition, 2002 in the first count and malicious injuries to property c/s 326 of the Penal Code, Cap. 16 of the Revised Edition, 2002 in the second count. The Primary Court found the respondent not guilty on both counts and accordingly acquitted him. l - - v C c --2. ; /'/ 2 - . L . ~*::3CV /V I f , - ' “ o C 'i i c C - .L ,_2;. . 2 ~.~i6r ~T«.' appealed to the District Ccurt against the same. The District Court citi not entertain the appellant's appeal on the ground that the same’ was filed out of time and consequently struck it out. Undeterred, the appellant has come to this court challenging the decision of the District Court. The main ground of complaint is that the delay to file the appeal out of time was caused by the fact that he was yet to receive the copy of judgment from the trial court. When this appeal came up for hearing on 19.06.2014, both parties appeared in person and were unrepresented. Surprisingly, the appellant did not argue the grounds of appeal but shifted the goal post and argued another point grievance altogether. He argued that the appellate magistrate erred in striking out his appeal on the reason that the same was filed out of time because he filed the appeal on 03.04.2011 while the judgment of the trial court was delivered on 17.03.2011. The appellant stressed that in view of the fact that the limitation time is thirty days commencing from the date of judgment intended to be impugned, he was well in time when he filed the appeal on 03.04.2011. Having filed the appeal in time, he charged, the first appellate court erred in striking it out. He insisted that he did not file his appeal on 28.04.2011 as the court record indicates but that he filed it in time. The appellant argued further that the District Court admitted the appeal because it knew that he was in time, otherwise why should they admit it in the first place? 2 any useful material to challenge the appellant. He submitted that he was aware that the trial court delivered its judgment on 17.03.2011 and the appellant was told to appeal within thirty days from the date of judgm ent The Respondent went on to submit that he received a summons from the District Court some forty-five days after the judgment of the primary court was delivered and that the District Court struck out the appeal on the ground that it was time barred. In a short rejoinder, the appellant reiterated that he did not file the appeal on 28.04.2011 as the court record shows but that the same was filed on 03.04.2011 as alluded to in his submissions in chief above. I have subjected the rival arguments of the parties to serious scrutiny in the light of the evidence on record, particularly the appellant's submission to the effect that he filed the appeal on 03.04.2011. With due respect to the appellant, I have found myself unable to buy his argument. I find this submission as not containing any scintilla of truth for two main reasons. First, this complaint was not raised in the memorandum of appeal earlier filed. The complaint in the memorandum of appeal filed by the appellant hinged on the fact that he did not appeal in time because he was waiting for a copy of judgment to be supplied to him from the primary court. The appellant kept this reason at bay when arguing the appeal before me. Secondly, I am not ready to discredit the court record which has it that the appeal was filed on 28.04.2011 and not 03.04.2011 as the appellant cn recorc; it sirr.piy surfaced when arguing the appesi befcre rr.e fcr which reason this court is entitled to believe that it was but an afterthought. Courts in this jurisdiction have held more than once that a court record is a serious document and therefore should not be lightly impeached. The courts have also held that there is always a presumption that a court record accurately represents what happened. This has been the position in both criminal and civil cases. In the case of H a/fan S u d i Vs A b ie za C h ic h ili\ 1998] TLR 527 in which, the Court of Appeal, relying on what it earlier stated in S h a b ir F. A . J e s s a Vs R a jk u m a r D eo g ra Civil Reference No. 12 of 1994 (unreported) held: "A court record is a serious document; it should , i not be lightly impeached". i i And, restating what the High Court of Uganda(Bennett, Ag. CJ) stated in P a u lo O sin ya Vs R [1959] EA 353, the Court of Appeal added: "There is always a presumption that a court record accurately presents what happened". On the strength of the foregoing binding decision which imported the decision of a persuasive decision of the High Court of Uganda of P a u lo O sin y a (supra) presided over by His Lordship Mr. Justice Bennet; then Chief Justice.of Uganda, I dismiss the appellant's complaint to the effect 4 appeal was received o n -23.04.2011. Under the provisions of section 20 (3) of the Magistrates Courts Act, Cap. 11 of the Revised Edition, 2002, the appellant ought to have filed his appeal in the District Court within thirty days after the judgment of the trial court. The subsection provides: "Every appeal to a district court shall be by way of petition and shall be filed in the district court within thirty days after the date of the decision or order against which the appeal is brought." The law, under subsection (4) (a) of the Act, allows the District Court to extend time within which to file the appeal, upon satisfaction that the intended appellant had good reasons for the delay. Actually, the law has provided a very simple procedure in favour of the intended appellant by allowing him to orally present his grounds of appeal during the arguing of an application for extension of time. This is the tenor and purport of subsection (4) (b) of section 20 of the Act. It reads: "if an application [for extension of time] is made to the district court within the said period of thirty days or any extension thereof granted by the district court, the district court may permit an appellant to state the grounds for hi-s appeal oTah'/ anJ vji J record ehem and hear the appeal accordingly/' [Emphasis supplied]. Thus, even if this court was to believe the ground of appeal that the appellant was waiting for a copy of judgment, which reason was not argued by the appellant, still the appellant had an avenue to file an appeal without a copy of judgment for it is not a condition precedent that a copy judgment be appended with the petition of appeal, or to apply for extension of time within thirty days after the judgment of the Primary Court which opportunity could be used to orally present his memorandum of appeal as well. These avenues were not explored by the appellant and he should not blame anyone for the District Court to strike his appeal out. The question of jurisdiction is so fundamental in the administration of justice and whenever appropriate the court may raise it suo motu. In the present case, the question of jurisdiction was raised in the Respondent's written submission and the first court was quite right to decide on that preliminary point before going into the merits of the ■appeal. I find fortification in this stance in the decision of the Court of Appeal of N ico m e d e s K a ju n g u & 1 3 7 4 O th e rs V e rsu s B u ly a n k u lu G o ld M in e (T ) LT D Civil Appeal No. 110 of 2008 (unreported). In that case, the Court of Appeal, speaking through Othman, J.A (now Chief Justice of Tanzania) held: 6 it is prooeriy seized or vested with the 'requisite jurisdiction to h'ear and determine a matter. It is a well settled principle that a question of jurisdiction ... goes to the root of determination - see M ic h a e l L e s e n i K w e ka V. Jo h n EiU afe, Civil Appeal No. 51 of 1997 (CA) (unreported)". A challenge of jurisdiction is also a question of competence". (Underlining supplied). See also: F a u s tin e G. K iw ia a n d A n o th e r Vs S co /a stica P a u lo , Civil Appeal No. 24 of 2000 (CAT - unreported) Like the first appellate court, I am satisfied that the appellant filed the appeal out of time and, having not sought and obtained leave of the court to file the same out of time, the first appellate court was quite justified not to entertain It. But it seems to me that the first appellate court, having found that the appeal was filed out of time, ought to have dismissed the appeal instead of striking it out as happened. That this is the law is found in the provisions of Section 3 Law of Limitation, Cap. 89 of the Revised Edition, 2002]. These provisions read: 7 the perioa of limitation ... shall be dismissed whether or not limitation has been set up as a defence". This provision is couched in mandatory terms. It was therefore incumbent upon the first appellate court to adhere to it to the letter, for, in terms of section 53 (2) of the Interpretation Act, Cap. 1 of the Revised Edition, 2002, once the "shall" is used in conferring a function, it means that the function so conferred must be performed. In the premises, I vacate the order of the first appellate court which struck out the appeal and replace it with one of dismissal. This appeal is otherwise dismissed in its entirety. DATED at SUMBAWANGA this 27th day of August, 2014. J. C. M. MWAMBEGELE JUDGE 8