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In the High Court of Tanzania in the District Registry Atmwanza Misc. Criminal Appeal No. 41 of 2020 Nambiza S/O Luzama Appellan

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In the High Court of Tanzania in the District Registry Atmwanza Misc. Criminal Appeal No. 41 of 2020 Nambiza S/O Luzama Appellan e IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY ATMWANZA MISC. CRIMINAL APPEAL NO. 41 OF 2020 (Arising from the Judgment/Ruling of the District Court of Ukerewe at Nansio in Misc. Criminal Application No. 04 of 2020 before L. A. Nyahega - RM dated 10° June, 2020) NAMBIZA S/O LUZAMA APPELLANT VERSUS PAULO S/O NYAKABALI RESPONDENT JUDGMENT 28/09/2020 & 22/10/2020 W.R. MASHAURI, J.: This is a 3° appeal emanating from Ukerewe at Ilanga Primary Court Criminal Case No. 16 of 2020. In that court, the respondent in this appeal Paulo Nyakabali was complainant and Nambiza Lusama and Bora d/o Balome were 1° and 2° accused persons respectively. All the accused persons were arrested and charged with the offence of criminal trespass C/s 299 of the Penal Code Cap. 16 RE: 2002. It is alleged in the particulars of the charge sheet that, on or about the 22/01/2020 at about 11:00 a.m in the morning Busori Division in Ukerewe District Mwanza Region the accused persons did willingly pounce 1 o upon in the farm of one Paulo s/o Kanyabali and proceed with cultivation activities by tilling rice the act of which is contrary to the law of the land. The case was tried and at the end of the day the appellant [1 accused] was found guilty and the 2° accused was discharged on the reason that, during trial of the case, the 1 accused was not mentioning the2nd accused in his evidence. The first accused [now appellant] was found guilty of the offence he is charged with and was accordingly convicted. He was ordered by the court to pay the defendant fine of Shs. 200,000/= or 10 months, jail in default. Being dissatisfied with the primary court decision, the appellant appealed in the District Court of Ukerewe at Nansio upon being granted leave to appeal out of time through Misc. Criminal application No. 04 of 2020, his application however was dismissed. He how appeals to this court against the dismissal of Misc. Criminal Appeal No. 4 of 2020 by the District court Ukerewe. When the appeal was set for hearing on 02/09/2020, the respondent filed Notice of Preliminary objection of which was to be heard on 28/09/2020. On the hearing date, the respondent withdrew it and proceeded to hear the appellants grounds of appeal to wit:- 1. That, the trial magistrate erred in law and in fact by not considering the whole circumstances and efforts made by the appellant in procuring a copy of judgment. 2 e 2. That, the trial magistrate erred in law and in fact by not considering the whole chamber summons and its affidavit which contains the points of illegalities made by the Ilangala Primary Court magistrate in the proceedings and composing his judgment. In reply to the appellant's grounds of appeal, the respondent Paulo Nyakabali replied the 1° ground of appeal that, the contents of the first of appeal are highly denied. That, it is the law that, any appeal from the primary court to the District court has to be filed within 30 days from the date of judgment and not otherwise. That, the appellant. did not make efforts whatsoever to get the copy of judgment same the copies of judgment were ready for collection but the appellant delayed to collect it. That, the contents of the second ground of appeal are totally denied. The chamber summons though brought under non existing law was considered and the affidavit was dealt with and found without merit. During the hearing of this appeal, the appellant said was convicted and failed in this case for no apparent reasons. That, he was employed casual labouer by a person called Bandoma Mganga and when was digging his employer's shamba was arrested on the ground that, he had pounced upon a shamba of the respondent Paulo Nyakabali and taken to police station where he was charged with the offence of trespassing into the respondent's farm. He told police officers that the owner of the shamba was at Biharamuro and when he came to court in January, 2020 he admitted the disputed farm to be his property. 3 O He also admitted to have employed him as casual labourer but was not released from remand custody. He was charged and tried with the case of trespass on which he was convicted and sentenced to pay fine Shs. 200,000/= or imprisonment of 10 months in default. He paid fine. Having paid fine was told by the District Court of Ukerewe that, the judgment of his case was delivered on 10/06/2020. Having so submitted in support of his appeal the appellant prayed this court to allow his appeal. In reply, the respondent Paulo Nyakabali said that, the disputed land is his property. It was be-queathed to him by his parents having all passed away. That, having his parents passed away he started cultivating it and no soon had he cultivated it than one Mdikubaga did pounce upon the said shamba with intend of depriving the respondent with it and he started cultivating it. He reported the matter to the village chairman whereby the appellant was urged to remove his rice he had tilled in the disputed shamba but he refused. The land was inspected by the ward land dispute committee and he won the case. Having a lapse of six days from the case was decided by the committee, the appellant did again pounce upon he shamba and cultivate it. The matter was reported to police station and the appellant was arrested and taken to court where the case was heard and the respondent was decided a winner in the judgment delivered on 03/05/2020. That, the appellant appealed to the District court of Ukerewe but he was out of time as was 4 decided in Criminal application No. 04/2020 which decision was delivered on 10/06/2020. The issue to be raised for discussion and determination in this appeal is whether the appellant in his appeal has given sufficient reasons for his delay. Of all what I have stated in this appeal are based on the application for extension of time to file Misc. Criminal [appeal No. 41 of 2020 out of time. The application had arose from Criminal Appeal No. 04 of 2020 which was determined by Ukerewe District court against the appellant to have been filed out of time. When this Misc. Criminal appeal No. 41 of 2020 was called in court for hearing, the appellant, instead of giving reason for delay to file his appeal he gave only the sequences on how the case was heard in the trial court and found guilty of the offence. He did not give sufficient reasons as to why he delayed to file his appeal against the decision of the primary court in the District court. At law, an application for extension of time to file an appeal out of time depicts that, there was a delay in filling the purported appeal in time. In this court, to reach a justified conclusion in this matter at hand, a consideration has to be made on the reasons for delay as to whether there was sufficient cause which made the appellant's failure to file his appeal in time. It is apparent and not disputed in this case that, the original criminal case against the appellant No. 16 of 2020 was its judgment delivered on 5 e 03/03/2020 upon convicting the appellant to pay fine Shs. 200,000/= or 10 months in default. He paid fine. When he filed an application for leave to appeal out of time in the District court vide Misc. Criminal application No. 04 of 2020, the reason given by the applicant now appellant is that, he was not supplied with judgment of the primary court timely. At law the need of a copy of judgment in a appeal from the primary court to the District court is superfluous. However, on the reasons he alone was aware, the appellant filed his appeal against the decision of the primary court at Ukerewe district court on 14/4/2020 after a lapse of one month and three days. When he filed an application for leave to appeal out of time in the District court vide Misc. Criminal Application No. 04 of 2020, the reason given by the applicant now appellant is that, he was not supplied with judgment of the primary court timely. At law the need of a copy of judgment in a appeal from the primary court to the District court is superfluous. The applicant's application for extention of time to file an appeal out of time was therefore correctly dismissed for want of good reasons. In his appeal No. 41 of 2020 the appellant has in his petition of appeal in this court filed two grounds of appeal as follows:- 1. That, the trial magistrate erred in law and in fact by not considering the whole circumstances and efforts made by the appellant in procuring a copy of judgment. 6 2. That, the trial magistrate erred in law and fact by not considering the whole chamber summons and it's affidavit which contains the points of allegation made by the Ilangala primary court magistrate in the proceedings and composing his judgment. During the hearing of the appellant's appeal in this appeal in particular the two petitions of appeal [supra] fielded by the appellant, instead of expressing them at length and in detail the appellant went astray and said no more in support of his appeal.
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