20001026 TZHC Dar es Salaam

I AT DAR F.S SJU,AAM -=--------=.....---- MIBCo CivIL. APPLo .NOo 38}2000 ' . _CHRLSTlliA AMRI ••••••••••o~••••••••••••••• . /IPPLICANT Versus S 1\NZIA MOHfuvUfil RESPONDENT .RULING IBEMA. i.!_ ,, ~; l ;,: Christina funri, the applicant through the services of J enan Kombe. }2 learned Advocate filed an application under Section 25 (1) (b) of the .- Yiagistrate' s courts Act for grant of leave to appeal to this court out of time,. 'Ihe application is accompanied by applicant's affidavit containing grounds and reasons in su:pport. It is stated in the affidavit that applicant was prevented from appealing against the decision of the District Court Ilala within thirty days due to, among other. things; the fact that the appeal was ··- heard in her absence for lack of notification end that up to 6th December 1998 at the expiry of statutory period of thirty days for appeal no appeal had been lodged in the Ilala District Court. Dn the other had the respondent Sanzia Mohamed in his counter affidavit has opposed the application for being filed over five months out of time without reasonable and or sufficient excuse. On 31/8/2000 'the parties w~re granted leave that hey argue the application by way of written submissions. Mr. Nyangar:i.ka advocating for the respondent wa.s to file his subf:!issions in reply on or before 28/9/2.000 and ruling was set for 26/10/dlOd. It is on record that to-day as I write the Ruling :Mr. Nyangarika has not filed his written only submissions, thus I am left with the submissions of the applicant to 09nsider. In his well argued submissions Mr. Komba informed the Court that the applicant is a bonafide claimant of the disputed piece of land following the decision of the 1Jkonga Primary Court in Civil Case No. 145/97. It is on record of the trial Court that applicant had been :in occ'Ullation of the disputed piece of land since 1974 as opposed to the . 2 - dating respondent's claim over the same .' •.' from 1996. Mr. Kombn hns also contended tha.t the decision of the Ila.lo. District Court was tainted with irregulm-ity due to the ctact thn.t the respondent lodged the nppenl out of time on 7th December 1998 and WM heo.rd exparfo~ Jn the circumstruices the intended appea.l by the applicont stonds overwhel.'iling cho.nces of success.!' It is beyond doubt tho.t the application for leo.ve ·to appeo.l out of time has merit ond it should be allowed for the re~.sons that the decision of the District Court in Civil Case No. 6~ of 1998 is tainted with defects in that the a.ppe~l was heo.rd exJ?<.'i.i'te mid VOS filed out of prescribed time for filing oppen.ls. Furthermo~e the evidence upon ii1hich the trial Court mo.de its finding in fnvour of the o.pplictmt is wo.tertight in support of the o.ppliCtl!lt 1 s claim of right over the disputed piece of land. Accordingly for these reosons I grqnt the applicant le-o.ve to appeal to this Court out of time . the applicant to file his appeD.l to this Court on or before 17/11/2000., ~cs.Q--.or.de.red.. ' , ... ·. : {.... ~ _, ; .' So TI1ema JUIGE 25/10/cJOO COURT: •= ...... Delivered before to p3I'ties ?n 26/10/?JXJO. IDJIGE 26/10/2.000