MARIAM MADUHU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

SHINYANGA SUB REGISTRY

AT SHINYANGA PC CRIMINAL APPEAL NO. 17771 OF 2024 (Arising from Criminal Appeal No. 13 of 2023 before District Court of Bariadi and Criminal Case No. 220 /2023 from Somanda Primary Court) MARIAM MADUHU ……………………………………………. APPLICANT

VERSUS BUYEGI SHIWA ........................................................ RESPONDENT

RULING 15th July & 23rd August, 2024. MASSAM J. Appellant one Mariam Maduhu filed a case before Somanda Primary Court against the respondent with a case of threatening to kill by words contrary to section 89(2) (a) of the Penal Code, the trial court after heard the said case respondent was acquitted, appellant after being aggrieved with the decision she appealed to the Bariadi District Court where she lost again after her appeal found with no merit. Now she brought her appeal to this court with three grounds of appeal as follows that; (1) That, the trial court and 1st appellate court erred in law and in fact by failure to change the time of the commission of the offence soon after the evidence of the appellant. 1 (2) That, the trial court and the 1st appellate court erred in law and in fact by punishing the appellant on the mistake made by the court. (3) That, the trial court and the 1st appellate court erred in law and in fact by relying on minor inconsistence and contradiction that did not go to the root of the matter. Lastly she prayed the appeal to be allowed and the matter be ordered de devo. During the hearing of this appeal, on 15th July, 2024 both appellant and respondent appeared in persons unrepresented, by consensus they agreed to urge their appeal by way of written submission, the prayers was granted and the court scheduled the dates as follows that appellant was

to file his submissions in chief on or before 29/7/2024. The respondent to file reply on 12/8/2024 and rejoinder if any on 19/8/2024 and judgement on 30/8/2024. However, until on 12/8/2024 when the respondent was required to file reply appellant was not yet filed her submission in chief. After this court find out that appellant time to file submission in chief elapsed this court call the parties to appear on 12/8/2024 to address the court but unfortunately appellant did not appear .This court did perused the court file and find out that on 30/7/2024 appellant wrote a letter to DR to seek for extension of time to file her submission out of time and been told 2 that DR has no power to extend time and she was told to follow the procedures as per the law directs but appellant did nothing. On 12/8/2024 respondent appeared to this court and prays for dismissal of this case as the appellant failed to file her submission in chief on time as she did not follow the court directions. After gone through the court records and respondent arguments, this court finds out that the appellant failed to file her submission in chief on time even after being told by DR to follow the procedures to seek for extension she did nothing. Also this court find out that appellant after failed to bring her submission on time she failed to inform this court the sufficient reasons why she failed to bring her

submission on time, in her letter dated on 29/7/2024 to DR she said that she was not aware that she was supposed to bring her submission within 14 days from the date of the order, but this court in perusal of the court file found out that appellant was the one who prayed her case to be heard by way of written submission, according to that this court has its view that appellant was aware of everything she was required to do. This court has its view that applicant was not serious on this which make this court to feel like she is no longer interested to prosecute her case. 3 According to that this court is support with respondent submission that failure to file written submission on time on the dates scheduled by the court is as good as non appearing to the court on the date fixed for hearing and its remedy is dismissal, and because appellant failed to file her submission in chief on time, and she failed to give this court sufficient reasons of her failure and because she did not seek for extension of time this court has no other option that to dismiss this appeal as it was elaborated in the case of P3525LT Idahya Maganga Gregory vs. The Judge Advocate General Court Martial Criminal Appeal No. 2 of 2002 (unreported) the court held that ‘’It is now a settled in our jurisdiction that the practice of filing written submission is tantamount to a hearing and therefore failure to file

the submission as ordered is equivalent to non-appearance at a hearing or want of prosecution. The attendant consequences of failure to file written submission are similar to those of failure to appear and prosecute or defend, as the case may be. Court decision on the subject matter is bound------ similarly courts have not been soft with the litigants who fail to comply with the court orders including failure to file written submission within time frame ordered. 4 Needless to state here that submission filed out of time and without leave of the court are not legally placed on records and are to be disregarded’’ Again, in the case of Harold Maleko vs. Harry Mwasanjala DC Appeal No. 16 of 2000 High Court Mbeya Makanja J, held that; “I hold therefore that failure to file written submission inside the time prescribed by the court order was in excusable and amounted to failure to prosecute the appeal, Accordingly, the appeal is dismissed with costs’’ From foregoing reasons, I hereby dismiss this appeal with costs for want of prosecution. It is so ordered. DATED at SHINYANGA this 23rd August, 2024. R.B. Massam

JUDGE 5