debora m masatu vs alexander masatu 1995 tzhc 703 14 february 1995

n r i t : ] m G ii cG u iff o f t a n z a b i a AT DAB ES SALAAM P C . C IV IL APPEAL NGf l 2 l / j !4 3JHS30BA M* N&SAIU APPELLANT 7EB5IB A-LEaAJJH^R J'l&JSATi-’ • ■ .•-j * o #» * c « ••''« o o • •»« •p • EESPGU llblHT J'^GIEED This is a sl >: ; appeal, The parties were man ar:l wife#- Ths^j; pastttfijeliip was die; Ivod on April 5? 1992U by tJae prim iy court of Tejaebe, following fili«6' 1 ’ a petition for a decree of divojoe t y the respondent id the hearing of the same by the court. The appellant was agg: I -ved by the decision, but she did not lodge an appeal against the sane -within the prescribed period* In January pjxe file d in the d istric t oourt»ef*Tettek^j on application for leave to appeal out of tine* The application was, disi^secL|''~the learned resident nagistr-no' idio heard the raattor holding that the applicant, had failed to satisfy lac that there was a jeasenable explanation jjfogp the delay in it' -;+.ituting the qppe'al in his court. The appeal now before nje is g a in st that ieq^sien*^^-^.. Before i.:io subordinate court and before this Court the appella*r& asse0§d that the delay T .ms caused,aaong other things, by the ta o i that she was lot provided with a copy of the prinary courtrs judgng&tf Bearing in mind that the respondent was able to secure a oopy of the judgment nicmediately after the expiry of 45 days froti the date of judgment”, the learned resident oagistrate found the assertion weighing very l i t t l e on his nind. For the purpose of determining th is appeal, I am prepared to assume, without deciding, that the leaded resident magistrate was wrong to hold, a&Ah© did, that no good jj^aaoas had been advanced to justify him granting the appellant leave to app> out of time. I t is not enough for an applicant who applies for leave * « to appeal out of tine to satisfy the court that there were reasonable Causes for the delay* Do joust also satisfy the court that his appeal is ail arguable one- That proposition brings no face to face with the question whethejf the appellant *s intended appeal lias such mej^t^ In ay oonsideygd opinion^ the answer to that question must be in the negative. The evidence on record demonstrates thart the parties* marriage had irreparably byoken down* It had so broken down that the respondent started living with on: ‘oher woman as non and wife, Thq respondent treated his taojiogaoour marring© to the respondent as no ^onger subsisting^ ^ecordin to the evidence on record, since 19O7 the app^Xant and the respondent hr- : 3^,ved apart. The primary court magistrate and the assessors who Bn+ \th him in hearing the petition unanimously cam^ to t£>: •'p.‘:?.ic-. . the 1 cannot : . rn: and f a o t j „ ^4 my vj,ew? anv r p p - • •. c^ninrr oho g ra n tin g of th e decree of d iv o rce ■would not bo c'z a : ~ j b i c- ;r in jho circu m stan ces , even assuming t h a t th e le a rn e d rc ; vd zr'i m a g istra te e rre d in holding th a t th e a p p e lla n t jiad f a i l e d to show - i f f i c i c n t fceasonr why she f a i l e d to appeal w ith in th e p e rio d p r e s c r i. jd by I c t , 1 fe<3. com pelled by ldw to dism iss t h e appea^ a g a in s t t h ; d ism issa~ of th e a p p lic a tio n f o r le^vo to appeal out of tim e . Judging by some o f th e th in g s she t o l d th e le a rn e d regdcLgnt m a g is tra te , when h earin g h e r a p p lic a tio n , and i^yself, when hearin g t h i s ap p eal, t l . a p p e lla n t i s aggrieved by, among o th e r th in g s^ th e p a th tc w a ris -’F t i c i , ~i f a r as th e se th re e m atters a^e conCgmed| may n o t be blocko , She L»ay o o n sid er p e titio n in g th e prim ary c o u rt to invoke ir. r favour-' itr- powers under s*1 14( 1)1 115(1 )C |) and 13Q(1).($ o f th e Caw c Mr::v±ago Ant. 1971 (th e A ct)c For t) o reasons I h;tvo g iv en 5 I d ism iss th e appeal* Guided by ih e p ro v is i - ■■■? s«9^ ( l ) of th e A ct, I make no o rd er as to c o s ts ^ D»A» Sam atta JAJI KIOKGOZU D g jiv ered t h i s 14th day of F ebruary, 1935* in ^he presence o£ th e a p p e lla n t and th e respondent* V 13»A# Sam atta JAJI KXOHGC