abdon pancreas vs justina sylvery 2018 tzhc 2707 10 september 2018

IN THE HIGH COURT OF TANZANIA AT BUKOBA MISC. CIVIL APPLICATION NO. 37 OF 2014 (Arising from (PC) Civil Appeal No. 46 of 2010 Muleba District) ABDON PANCREAS----------------------------- APPLICANT VERSUS JUSTINA SYLIVERY------------------------ RESPONDENT RULING 6/9/2018 & 10/9/2018 M LACH A, J. The applicant, Abdon Pancra filed an application against the respondent, Justina Sylivery requesting this court to certify that there is a point of law involved in his appeal worth consideration by the Court of Appeal. The application is made under Section 5(2) of the Appellate Jurisdiction Act Cap. 141 R.E. 2002 and rule 46(1) of the Court of Appeal Rules 2009. The points to be certified were shown in the Chamber summons to read thus; i (i) That the High Court Judge did not consider the status of the lay person to delays in court to be sufficient reasons to allow the appeal. (ii) That, the appeal involved the point of law that the claim was out of customary time of 12 years which could be allowed as sufficient reason. The record shows that the case originated from Civil Case No. 11 of 2003 of the Primary Court of Muleba District at Nyamilanda. The case was filed by the respondent who was declared the winner. The applicant did not take any step. He formed an intention to appeal at a later stage. Noting that he was out of time, he filed an application (Application No. 1 of 2004) seeking extension of time within which to file an appeal at the district court. The application was dismissed. He lodged an appeal to this court (PC) Civil Appeal No. 46 of 2010) against the ruling of the district court. My brother Mjemmas J. (retired) did not see any merit on the appeal. It was dismissed. He formed an intention to go to the Court of Appeal. He cannot go there without the leave of this court hence the present application. The applicant was represented by Mr. Mathias Rweyemamu while the respondent was represented by her son, Venant Silvery. Submitting before this court, Mr. Mathias Rweyemamu requested the court to address its 2 mind on three points; One, whether the respondent had locus to file the case against the applicant in the absence of letters of administration. Two, whether the case was filed within time and Three, whether there was sufficient cause to extend the time given the fact that the applicant is a layman. When Mr. Venant was asked to respond to the points raised by Mr. Rweyemamu, he opted to leave the matter to the court. He added that the applicant is just disturbing his mother. Having considered the matter carefully, with respect, I have the view that Mr. Rweyemamu is missing the point. His submission is not supporting the prayers in the chamber summons. Neither was it systematic to the matter at issue. He has emerged with a new approach outside the framework of the application; he has failed to point out legal points worth certification to the Highest Court of the land. Further, my reading of the judgment of this court has shown me that it has dealt with the matter exhaustively; the applicant failed to give good cause to justify the delay for 150 days (3 months). His defence of ignorance of law was found to be baseless and dismissed. The court explained clearly that ignorance of law is no excuse and dismissed that defence. Referring the point to the Court of Appeal while knowing clearly that ignorance of 3 law is no excuse is an abuse of the court process and must be discouraged. Further, issues of limitation in land matters are just very clear and were well explained by my brother Mjemmas J. With that in mind, the application for leave is found to be devoid of merits and dismissed with costs. 10/9/2018 Court: Ruling delivered today in the presence of Mr. Rweyemamu for the applicant and Mr. Venant for the respondent. Right of appeal is explained. Sacha Judge 10/9/2018 4