RULING OLIVER JAMESOTHERS VS NOEL SAMAMBA

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA MISC CRIMINAL APPLICATION NO. 25855 OF 2024 (Arising from the Judgment in Criminal Appeal No 28 of 2023 before the District Court of Dodoma and originating from the Criminal Case No 277 of 2023 before Chamwino Urban Primary Court) BETWEEN OLIVER JAMES …………………….…………………………1ST APPLICANT SARAFINA SAMAMBA……………….………..……………2ND APPLICANT MAGRETH SAMAMBA………….….…………………..……3RD APPLICANT ROYIDA SAMAMBA………….…..…………….……………4TH APPLICANT VS NOEL SAMAMBA ……………….…………………..……….RESPONDENT RULING Date of last Order: 19/03/ 2025 Date of Ruling: 27/03/ 2025 LONGOPA, J.: The applicants and respondent were parties before Chamwino Urban Primary Court in Dodoma and appeal before the District Court for Dodoma. The applicants were convicted and sentenced for the offence of malicious damage to crops namely maize, groundnuts and sunflower property of the respondent. The applicants appealed to the District Court for Dodoma 1|Page which on 20/ 11/ 2024 delivered a judgment against the appellants/ applicants. Neither the applicants nor the counsel for applicants appeared on this date despite the fact that the earlier judgment date of 17/11/ 2024 was scheduled in presence of the applicants’ counsel, Mr. Denis Odhiambo, learned advocate. On 10th September 2024 the applicants instituted this application under Section 25(1) of the Magistrates Courts Act and Rule 10 of the Judicature and Application of Laws Act (Criminal Appeals and Revisions in Proceedings Originating from Primary Courts) Rules, GN 390 of 2021 applying for extension of time to file an appeal out of time having failed to appeal timely. The application was by Chamber Summons supported with affidavit. The parties appeared before me on 19/03/ 2025 for oral submissions on the application whereas the applicants enjoyed the legal services of Ms. Nisela Prosper, learned advocate while the respondent enjoyed the services of Mr. Majaliwa Wiga, learned advocate. It was submitted by Nisela Prosper, learned advocate for the applicants stated that the instant application is for extension of time under 2|Page section 25(1)(b) of the Magistrates Courts Act, Cap 11 R.E. 2019 and Rule 10 of the Judicature and Application of Laws Act (Criminal Appeals and Revisions in Proceedings Originating from Primary Courts) Rules, GN 390 of 2021. The applicants adopted the whole contents of the affidavit in support of the application. It was reiterated that the first ground for the application is that there is a decision of the District Court that was delivered on 20/11/ 2023 but the copy of the decision was availed on 26/01/ 2024. According to Paragraph 5 of the affidavit in support of the application caters for the delay in becoming aware of existence of the decision by the applicant. Further, the applicants stated that when the judgment was read and delivered the applicants were not aware of the existence of the judgment for the reasons of misdirection on the date of the judgment. The proceedings on page 11 indicates that the applicants who were appellants are not in court on the material date the judgment was delivered. It was the applicants’ submission that the applicants commenced the process of initiating the appeal but found themselves out of time to appeal. 3|Page At page 10 of the proceedings indicate that judgment was scheduled in absence of the parties. For that reason, it was the applicants’ prayer for extension of time for the reason that delay was not due to negligence but they were unaware of the judgment date. On the second reason, it was submitted that Paragraph 6 of the affidavit is on illegalities in the judgment to be challenged. The District Court confirmed the decision of the Primary Court on destruction of crops thus the Primary Court had not demonstrated that there was proof required in the criminal cases as the report of the extent/amount of crops and type of crops destroyed was never tendered by the agricultural extension officer was not there thus the District Court upheld the decision was illegal as the compensation arrived at was not stated to have proved the same. For that reason, the decision of the District Court was not proved to the required standard of proof which is beyond reasonable doubts. In the case of Lyamuya Construction Company Ltd vs Board of the Registered Trustees of Young Women and Christian Association of 4|Page Tanzania, Civil Appeal No 2 of 2010 (TANZLII), the Court of Appeal of Tanzania stated that when illegality is pleaded the extension of time should be granted. It was the applicants’ prayer that extension of time be granted for appealing out of time for the parties to be heard and justice be done. Mr. Majaliwa Wiga, learned for the respondent resisted vehemently on the application. He adopted the contents of the counter affidavit and reiterated that section 25(1)(b) of the Magistrates Courts Act, Cap 11 does not have a requirement of copy of the decision to be attached before appealing. The copy of judgment is not compulsory when the district court is acting as an appellate court for decisions originating from the primary court. The applicants could have acted even without the judgment. He attacked that contents of paragraph 5 of the affidavit supporting the application regarding lack of information on the judgment date are not true. The learned advocate stated that it was on record that the case was heard on 20/10/ 2023 as revealed on pages 5 to 10 of the proceedings. The applicants were represented by learned advocate Mr. Denis Odhiambo. 5|Page The Court scheduled the judgment date to be on 17/11/ 2023 as reflected in page 10 of the proceedings. The advocate for the applicants was present on 20/10/2023 when the order was issued scheduling order on judgment date. According to Mr. Majaliwa Wiga, learned advocate on 17/11/ 2023, the judgment was not delivered but the counsel for appellants and the applicants/ appellants themselves were absent thus the judgment was delivered on 20/11/ 2023. It was further reiterated that arguing that the applicants were not aware/ were not there when the judgment was delivered is wrong and misdirection to this court. The applicants were fully represented in court of law on the material date when the judgment was scheduled thus the applicants cannot be heard distancing themselves from being aware of the judgment date. Mr. Wiga informed this court that it is revealed that from 30/05/2023 when the case was mentioned for the first time before the District Court until its finalisation on 20/11/ 2023, the applicants appeared personally once only on 30/06/2023 but in all other dates they were not there. It was 6|Page the applicants’ tendency not to appear but their advocate represented them. He urged this court that it was impalatable for this court to rely on facts by the applicants that judgment was delivered in their absence while they appeared only once. That would amount to relying on incorrect facts presented by false information. Mr. Wiga cited the principle in the case of Bashiri Ally vs Anyegile Andendekisye Mwamaluka and Others, Civil Appeal No 49 of 2021 [2024] TZCA 47 (16 February 2024) (TANZLII), at page 8 the Court of Appeal of Tanzania stated about false information on the affidavit that it has effect of expunge that affidavit thus nothing would remain. Further, the counsel for the respondent cited the principle in Ignasio Messina vs Willo Investment, Civil Application No 21 of 2001, where the Court stated that affidavit tainted with untruth is no affidavit at all and cannot be relied upon to support an application. On the second reason, it was submitted that such aspect require evidence as proof beyond reasonable doubts is a matter of evidence not issue of illegality at this stage. 7|Page Mr. Wiga firmly argued that there is an aspect of accounting for each day of delay, the applicants had failed to discharge this obligation as the applicants have not provided an account of all the days from 20/11/ 2023 to 01/ 09/ 2024 when the application was filed in court have not been accounted for. It was submission by the respondent that failure to account for every day of delay is a failure to demonstrated existence of a good cause for extension of time. It was further argued that the Judicature and Application of Laws (Criminal Appeals and Revisions in Proceedings Originating from Primary Courts) Rules, GN 390 of 2021 requires that application must be accompanied by an intended petition that is to be filed if the application is granted. This is a mandatory requirement but the same was not adhered to by the applicants. It was a prayer of the respondent for the dismissal of the application for failure to demonstrate existence of good cause for grant of extension of time and adhering to the law. 8|Page In short rejoinder, Ms. Nisela Prosper learned advocate reiterated that the reasons stated in oral submission and affidavit in support of application were sufficiently demonstrating that good cause exists for extension of time. It was applicants’ counsel version of story that once obtained information that there was in existence a judgment made the part of the applicants to institute the application. The applicants were not in court thus they never knew of the existence of the same. It was the applicants’ submission that the affidavit in support of the application contains correct and truthful account of events in the matter. There is nothing incorrect and untruth. On the legal inadequacy, the proof beyond reasonable doubts is a legal requirement therefore the district court upholding the decision of the primary court was an illegality. It was further reiterated that the intended petition of appeal was attached to the application for extension of time thus it is forming part and 9|Page parcel of the documents in this application. Thus, the applicants’ prayer for extension of time to appeal out of time was reiterated by stating that this court has discretion to extend time where a good cause is shown and the circumstances of instant application demonstrated the same. Having heard the rival submissions of the parties in respect of application for extension of time, this court is enjoined to analyse the available materials to satisfy itself on the existence of a good cause to exercise its jurisdiction to extend such time. Extension of time for filing a matter out of time calls for exercise of discretion of the Court. It is a trite law that the applicant must put material evidence before the Court which will persuade it to exercise its discretion in favour of an extension of time. He must show a good and sufficient cause for the Court to enlarge time to file a notice of intention to appeal. This position was demonstrated in the case of Juma Shomari versus Kabwere Mambo, Civil Application 330 of 2020) [2021] TZCA 63 (4 March 2021) (TANZLII), at page 3, where the Court of Appeal observed that: 10 | P a g e Many times, in its pronouncements, this Court had occasions to interpret this provision of the law and insisted that the applicant should show a good cause before time can be extended for doing a certain act. Few of the decisions are; Abdallah Salanga and 63 Others v. Tanzania Harbours Authority, Civil Reference No.08 of 2003 and Sebastian Ndaula v. Grace Rwamafa, Civil Application No. 4 of 2014 (both unreported). However, what constitutes good cause has not been codified although the Court has, in various instances, stated a number of factors to be considered. These are whether or not the application has been brought promptly; a valid explanation for the delay and whether there was diligence on the part of the applicant. For this Court to exercise its discretionary powers to grant extension of time, the guidance has always been existence of good cause on part of the application for extension of time. 11 | P a g e Further, the Court of Appeal in Laurent Simon Assenga versus Joseph Magoso, Seleman Mohamed Namboto and Msolopa Investment Company Limited, Civil Application No. 50 of 2016 [2016) TZCA 330 (30 May 2016) (TANZLII), at page 3, the Court stated that: …the issue to be resolved is always, whether the applicant has shown good cause for extension of time. What is a good cause is a question of fact, depending on the facts of each case. For that reason, many and varies circumstances could constitute a good cause in any particular case. Some of important aspects to be considered were reiterated in the case of Masato Manyama vs Lushamba Village Council (Civil Application No. 274/08 of 2024) [2025] TZCA 34 (20 February 2025) (TANZLII), at pages 5-6, where the Court of Appeal explicitly reiterated that: It is settled position of the law that, extension of time is a matter of the discretion of the Court which must be exercise judiciously according to the facts of each case. In 12 | P a g e application for extension of time, the court is required to consider whether or not sufficient cause for delay has been shown to warrant extension. There is however, no definition of what amounts to "sufficient cause" but in determining whether, in a particular case sufficient cause has been established or not, a number of factors have to be taken into account depending on the circumstances of that particular case. The court has to look for instance, at whether the applicant was diligent, reason for delay, the length of delay, the degree of prejudice to the respondent if time is extended, whether there is a point of law or illegality or other wise of the impugned decision. In general, it is a matter of discretion on the part of the Court, exercisable judiciously and flexibly by considering the relevant factors of the case. On whether the applicants acted diligently, the contents of the affidavit need to be analysed. There are two main reasons. The first, that the applicants were not aware of the judgment date. My perusal of 13 | P a g e paragraph 5 of the affidavit in support of the application found it scanty, skeletal and insufficient to provide any meaningful information to warrant this court to ascertain existence of good cause. The affidavit lacks information regarding date of the judgment, date when the applicants got information on the delivery of judgment and date when the processes commenced to appeal. However, totality of the record reveals that an application for extension of time was filed sometimes in September 2024. This was some eleven (11) months since the date of the decision. It is only on submission of the applicants where it was disclosed that applicants learnt about existence of the judgment sometimes on 26th January 2024. However, no serious action was taken by the applicants to initiate proceedings to apply for extension of time. Such inaction of the applicants does not augur well thus makes the good cause unestablished. The lengthy of delay is inordinate as the applicants failed to act in a timely manner and reasons for such delay do not reveal any seriousness on party of the applicants. 14 | P a g e At this juncture, it may be safe to conclude that the first reason for the extension of time based on a good cause for extension of time none is in existence in the instant application. In Nicholaus Samwel and 7 Others vs National Ranching Company Limited (Ministry of Livestock & Fisheries), Wizara ya Uvuvi na Mifugo and Another (Civil Application No. 19 of 2025) [2025] TZCA 91 (21 February 2025) (TANZLII), at pages 9-10, the Court of Appeal reiterated that: As for Mr. Kaijage's suggestion that in the circumstances of this case the Court should make law to the effect that illegalities and irregularities should be grounds for stay of execution, that in my view is a poisoned fruit. I am saying so because the Rules are very clear. It is a principle of interpretation of the law that if a provision of legislation is clear the Court gives effect to plain meaning of the words in that provision. Rule 11(5)(b) of the Rules is neither ambiguous nor has lacunae. Hence, this Court declines to 15 | P a g e heed to judicial creativity proposed. To do otherwise is to fix the unbroken. Before penning off, a word or two on illegalities and irregularities complained about suffices. The applicant has repeatedly cited and amplified the irregularities in the trial proceedings and the judgment. It is my profound view that these are matters to be addressed in the impending appeal before this Court. They are not grounds for granting an order for stay of execution. That said, failure to comply with the mandatory requirements of the Rules, especially rule 11(5)(b) that of furnishing security, means that this application has no legs to stand on and the same must fail. I thus proceed to strike it out with costs. According to this decision of the Court of Appeal of Tanzania not every allegation of illegalities amount to sufficient reason for extension of time. It must be illegalities that are manifest on record. It should not 16 | P a g e require any re-evaluation of evidence before the trial or first appellate Court. According to the applicants’ submission the nature of illegality that is claimed is failure to prove the case beyond reasonable doubts on part of the respondent before the trial Court. Indeed, in my view this cannot be manifestly seen on face of record unless this court re-evaluates the evidence. A n attempting to re-evaluate the evidence to find out whether the case was proved to the required standard is not within the mandate of this court in dealing with the application for extension of time. Thus, this court should not be dragged to re-evaluate the evidence in find out whether or not the case was proved beyond reasonable doubts. That should be the powers of an appellate court when the appeal is properly filed in court. In the case of Mtengeti Mohamed vs Blandina Macha (Civil Application No.344 of 2022) [2023] TZCA 17328 (12 June 2023) (TANZLII), at page 7, the Court of Appeal reiterated that: 17 | P a g e In that connection as we held in the case of Tumsifu Kimaro (the Administrator of the Estate of the late Eliamini Kimaro) v. Mohamed Mshindo, Civil Application No. 28/17/2017 (unreported), where the Court is called upon to extend time on the ground of illegality of the decision sought to be appealed against or revised by a higher Court, the issues is whether the application for extension of time discloses, at least on a balance of probabilities some illegalities manifest on the record and whether the said illegalities raise any point or some points of law of sufficient importance. The basis of illegalities in the circumstances of the instant application being failure to prove the case beyond reasonable doubts is not something that is manifest on the record, rather it needs a critically evaluation of evidence of both parties before a conclusion can be arrived that there was no proof beyond reasonable doubts or otherwise. The second ground for the 18 | P a g e application of extension of time is therefore devoid of merits. The whole application deserves to be dismissed for being destitute of merits. It is so ordered. DATED at DODOMA this 27th day of March 2025 E.E. LONGOPA JUDGE 27/03/2025. 19 | P a g e