ocr AMMY IBRAHIM MKUBWA0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB REGISTRY ONE STOP JUDICIAL CENTRE AT TEMEKE PC. CIVIL APPEAL NO. 23204/2024 AMMY IBRAHIM MKUBWA........................................ APPELLANT VERSUS ZILLY IBRAHIM MKUBWA......................................... RESPONDENT RULING Date of last order: 03/10/2024 Date of Ruling: 07/10/2024 S.D. MWAIPOPO J, When this matter was set for mention on 03/10/2024, the Appellant was represented by learned Advocate Chrispinus Nyenyembe and the Respondent enjoyed the legal services of learned Advocate Hussein Sued. Mr. Nyenyembe was the first to address the court, whereby he prayed to be allowed to effect some amendments on the grounds of appeal since when they were filing the Appeal, they had not yet received copies of the Proceedings and Judgement hence were not in a position to frame the grounds of appeal properly. Objecting to the prayer for amendment, Mr. Sued, contended that, the same was vague and suggested that the best option was for the Appellant to withdraw the appeal with leave to refile the same. Similarly, he raised an objection to the effect that, the Appeal was filed out of time i.e. beyond thirty (30) statutory days as per section 25 of the i Magistrates Courts Act Cap 11 RE 2019. He argued that the Judgement of the District Court was delivered on 14/8/2024, therefore the appeal oug.nt to have been filed on or before 13/9/2024 and not afterwards. Submitting in rebuttal on the objection raised, Mr. Nyenyembe, agreed that the appeal was supposed to be filed within 30 days from the date of the delivery of the District Court Judgement, i.e. 14/8/2024 and that the sarnie was filed on time on 14/9/2024, however he did not supply the court with any proof to that effect. He contended further that the same was'l lodged/uploaded on 14/9/2024 but he could not submit/lodge the physical documents in the registry and therefore managed to file them on 17/9/2024, when time for submitting the same was over. Thus, he prayed for the matter not to be struck out. WitHi regard to the amendments, he clarified that, he needed to satisfy himself with ground no. 1-5, of the appeal and that ground no. 6 and 7 would not be amended. Having heard the rival submissions of the parties, I agree with both of them that, section 25 of the MCA requires appeals from District Court, in its appellate jurisdiction to be filed within 30 days from the date of its delivery. From the record of the proceedings, two issues were raised. The first issue is with regard to the prayer for the amendment of the appeal tab ed by the learned counsel for the Appellant and the second one is the' objection raised by the learned counsel for the Respondent on the i competency of the appeal as far as its time limit is concerned. I It is trite law that, whenever there is an objection raised, the court has to dispose it first. There is a plethora of authorities to that effect, I don't need to cite none. ■ I have perused a copy of the Judgement of the District Court and observed that indeed the decision was delivered on 14/8/2024. Counting from 14/8/2024, thirty (30) days ought to have expired on 13/9/2024. However, as per the submissions of the Appellant, the Appeal was filed on 14/9/2024 and documents lodged in court on 17/9/2024. Going by । his assertion, the Appeal was filed beyond thirty (30) statutory days i.e. 32 ciays. । i I have perused also in the e-CMS and observed that, the Appellant submitted and or lodged his documents on 17/9/2024 and the same were admitted on the same date. However, filing of the said documents was done on 18/9/2024. From the submissions it is clear that the Appeal was both lodged and filed in court beyond the thirty statutory days. Therefore, I take the submissions of the Appellant himself, that the Appeal was filed out of thirty days. Again, If I take the records in the e- ChjlS, they give me same results. Thus, I agree with the objection raised by the Respondent that the Appeal was supposed to be filed on or before 13/9/2024 and not 14/9/2024 or afterwards. Therefore, this appeal is hopelessly out of time. I had expected the Appellant to begin by seeking leave of the court to be granted extension of time first, instead of approaching the court directly in such kind of a situation. See the case of Barclays Bank Tanzania Ltd Vs. Phylisian Hussein Mcheni Civil Appeal No. 19 of 2016 CAT. Noyv what is the consequence or remedy of an appeal filed out of time? The Respondent has prayed for the court to strike out the appeal and; the Appellant has prayed for the court not to strike it. However, I am Jalive to the fact that an appeal is a creature of statute and that the right to appeal is not automatic, therefore, one has to comply with the conditions prescribed by the statute. See the case of Harnan Sigh Trading As Harma Singh and Co. Vs. Karsan Civil Appeal No. 22 of 1952 EAC. Further, the provisions of section 3 of the Law of Limitation Act, Cap 89 RE 2019, provide that; the remedy for a time barred appeal is dismissal. See also the case of John Correl VS. A. Grevo (t) Ltd Civil case No 70 of 1998 In the upshot, I sustain the preliminary objection and proceed to dismiss the appeal. Costs shall be borne by the parties. It is so ordered. S.D. MWAIPOPO JUDGE 07/10/2024