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IN THE HIGH COURT OF TANZANIA (SUB - REGISTRY OF GEITA) AT GEITA DC CRIMINAL APPEAL NO. 21876 OF 2024 (Appeal from the decision of the District Chato at Chato, in Miscellaneous Criminal Application No. 5493 of 2024) SHINJE LUSANA…………………………………………. APPELLANT VERSUS SAMWEL MAGOLA………………………………………RESPONDENT JUDGMENT Date of last Order: 15/08/2024 Date of Judgment: 09/09/2024 K. D. MHINA, J. This appeal raises two important legal issues: the distinction and consequences between “dismissing” and “striking out” an appeal and the circumstances where each applies. The facts of this case are elementary. At the Primary Court of Chato, the appellant, Shinje Lusana, filed Criminal Case No. 390 of 2023 for grievous harm against the respondent, Samwel Magola. 1 In the end, in its decision, the Primary Court acquitted the respondent for the reason that the applicant had failed to prove the case beyond reasonable doubt. Undaunted but out of the prescribed time to appeal to the District Court, the appellant filed an application at the District Court of Chato seeking an extension of time to file an appeal vide Miscellaneous Criminal Application No. 5493 of 2024. After hearing the application, the District Court on 8 July 2024 “dismissed” that application for an extension of time. The exact words used in the District Court Ruling, composed in Swahili, was “mahakama inakataa maombi ya kuongezewa muda.” Relentless, the appellant approached this Court with the appeal at hand, faulting the decision of the District Court in which he preferred two grounds of appeal as follows; i. The trial Magistrate grossly erred in law to dismiss the Appellant’s Application while the same was made on a defective Affidavit and not finally determined. ii. The trial Magistrate erred in law to dismiss the Appellant’s Application when he found the same to be made under the 2 improper citation of the law. When the appeal was called on for hearing, the Appellant was represented by Mr. Godfrey Rubalema, learned counsel, while the Respondent had the services of Mr. Constantine Ramadhani, learned counsel. Further, the hearing proceeded by way of oral submission, and at the hearing, Mr. Rubalema argued the 2nd ground only after abandoning the 1st ground of appeal. Faulting the District Court decision, he submitted that the District Court Magistrate erred in dismissing the application while he acknowledged that the application was preferred under the wrong provision of the law. He explained that, in paragraph 3 of the 1st page of the impugned decision (facts of the case), it was indicated that the application was dismissed because the submissions introduced new issues which were not contained in the affidavit, and the application was preferred under the wrong citation. Therefore, the Magistrate acknowledged that the application was misconceived and incompetent before the court. Thus, the remedy was to strike out rather than dismiss it. He fortified his submission by citing the 3 decision of the Court of Appeal in Yusuph Shaban Matimbwa vs. Exim Bank (T) Ltd and two others, Civil Application No 162 of 2021 (Tanzlii) on page 8. He concluded by submitting that the District Court, thus, erred by dismissing the application. In response, Mr. Ramadhani argued that the word dismissal was not used in the District Court's decision. On page 4, the District Court in Swahili stated that “Hivyo kwa mantiki hiyo basi Mahakama inakataa maombi ya kuongezewa muda kuleta rufaa”. He explained that the District Court did not reject the application due to incompetence. It rejected it because the application lacked merits after the advocate submitted what was not contained in the affidavit (extraneous matters). He further argued that, though the word dismissal was not featured in the impugned ruling, it was proper for the application to be dismissed because, after the hearing, the District Court found the application was without merits. 4 Therefore, the claim that the application ought to be struck out because of the wrong application of the law is incorrect, as the decision was not based on the wrong citation of the law. Therefore, that was not the basis of the decision. In a brief rejoinder Mr. Rubalema cited the decision of this Court in Theobald Boniphace Tibahikao vs. Elias Kashangama, Land Appeal No 36 of 2022 HC-BK (Tanzlii) at page 6, where it was held that term dismiss in Swahili means kufukuza, and kukataa and struck out means kuondoa. He insisted that the application at the District Court was dismissed. Having objectively gone through the ground of appeal, the submissions by both parties and the records of the District Court, I find it necessary to start with the Swahili word “kukataa” used in the impugned decision. This should not detain me long because, in the cited case of Theobald Boniphace Tibahikao (Supra), this Court already translated that Swahili word to its English meaning. It was held that; 5 “The Swahili Legal Terms Dictionary Published by the Legal Research Centre and Faculty of Law, University College, Dar es Salaam, 1968 pg.36, where legal terms are translated into Kiswahili. The term "Dismiss" means: ''(1) fukuza... (2) Kataa..." ’Dismissal" means (1) Kufukuza (2) Kukataa- whereas the term Strike means "ondoa". Without much ado, I subscribe to the position in the cited persuasive decision. That means the word “kukataa” used in the decision of the District Court that Court dismissed the appellant’s application. From above, the pertinent question is whether the District Court was correct in dismissing the appeal or ought to strike out the same as argued by Mr. Rubalema. To answer that question, I revisited the District Court proceedings and decision and found the following; After receiving the application for an extension of time, which was filed by way of chamber summons supported by an affidavit as a usual procedure, the District Court ordered the filling of the counter affidavit, which was duly filed. Then, it set the date of the hearing. 6 On the date fixed for the hearing, the counsel for the parties argued for and against the extension of time. The issue raised by the appellant's counsel was the delay caused by technical issues in filing the application electronically in the judiciary's electronic case management. In the end, the District Court found that the issue raised in the appellant’s submission was not canvassed in the affidavit. It was the new issue introduced from the bar during the submissions, then it proceeded to dismiss the application. That was the basis of the decision. Additionally, the District Court reminded the appellant’s counsel regarding the time limit prescribed for appeals originating from Primary Courts under G.N No. 390 of 2021 and G.N No. 55 of 1963. That paragraph read as follows; “Lakini pia nimkumbushe wakili upande wa mleta maombi, sheria inayohusiana na ukomo wa muda na maombi ya kuongezewa muda kwa mashauri yanayoanzia mahakama za mwanzo ni Criminal Appeals and Revision in Proceedings Originating From Primary Courts, GN No.390 of 2021 na Kanuni za Sheria za Kienyeji(Kikomo cha muda wa kuanzisha madai, GN Na.55 ya 1963”. 7 From above, it is quite clear that the application for an extension of time was heard and determined on merits, and the reason for the decision as per the record was failure to substantiate what was canvassed in the affidavit. Instead, the appellant introduced a new issue during the submissions. The introduction of the new issues during the submission and their effect on the decision is not a new phenomenon in our jurisdiction, as there is a plethora of authorities. The Court of Appeal in Yusuf Khamis Hamza vs. Juma Ali Abdallah, Civil Appeal No. 25 of 2020 (Tanzlii), it held that; “In this case, the issue of time bar was not raised by the parties in their pleadings. In this sense it was quite in order and absolutely perfect for the court below not deal with matters which was not canvassed in pleadings”. Further, in Rosemary Stella Chambe Jairo vs. David Kitundu Jairo, Civil Reference No. 6 of 2018 (Tanzlii), it was held that; “The respondent's submission under the circumstance was akin to testimony from the bar, the practice abhorred and discouraged by the Court, as illustrated in the two cases cited 8 above. We can, therefore, say without any doubt that all the facts deponed were not disputed as there was nothing countered”. Therefore, introducing new facts during the hearing of the application and a failure to submit on the issues already in the affidavit means the appellant did not substantiate his application. Thus, the District Court was entitled to dismiss his application on merits. Introducing new facts not canvassed in pleadings does not make an appeal or application incompetent; instead, it affects the merits of the appeal or application. Flowing from above, the competent application was disposed of by the District Court. Nothing was raised, argued, or decided on whether the application was incompetent or not. The Court of Appeal in Cyprian Mamboleo Hizza vs. Eva Kioso and Another, Civil Application No. 3 of 2010 (unreported), citing Ngoni- Matengo Cooperative Marketing Union Ltd. V. Ali Mohamed Osman (1959) E. A 577, it held that: “...... This court, accordingly, had no jurisdiction to entertain it, what was before the court being abortive, and not a properly constituted 9 appeal at all. What this court ought strictly to have done in each case was to ''strike out" the appeal as being incompetent, rather than to have "dismissed" it, for the latter phrase implies that a competent appeal has been disposed of, while the former phrase implies there was no proper appeal capable of being disposed of.” See also other decisions of the Court of Appeal in Abdallah Hassan vs. Vodacom (Tanzania) Limited vs. Civil Appeal No. 18 of 2008, Thomas Kirumbuyo and Another vs. Tanzania Telecommunications Co. Limited, Civil Application No. 1 of 2005, Hashim Madongo and two Others vs. Minister of Industries and Trade and two others, Civil Appeal No. 27 of 2003 (Both unreported) and Yahya Khamis vs Hamida Haji Idd and two others, Civil Appeal No. 225 of 2018 (Tanzlii). To that end, I find that the ground of appeal lacks merits; the District Court was entitled to dismiss the application since it heard it on merits and not struck it out. From the above discussion, in totality, the appeal lacks merits; the ground of appeal fails to persuade this Court to interfere with the decision of the District Court. Consequently, the appeal is dismissed. It is so ordered. 10 K. D. MHINA JUDGE 09/09/2024 Court The right to appeal is fully explained. K. D. MHINA JUDGE 09/09/2024 11 12