19910312 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA . AT DAR ES SALJ1AM (PC)CIVIL AlPEAL NO. 33 OF 1987 (Fror.i the decision of the District C::mrt of KILOMB.t£Rc1 { ~- t• AT IFAKARA in CIVIL .APPEAL NO. 3 · OF 1987 , -~ ... DAMIAN MKUYA •••••••••••••••••••••••• APPELLANT versus ti H.ii.SSANI MKULILA AND !1NOTHER ••••••••• RESPONDENT RULING Mll.SANCHE.,J .... The applicant, through Mr Kashm1bugu, .is actually the appellani in thi.s u1atter.. lie is appealing against a decision of the Distr+ft Magistrate (J. Iviushuwbusi PDM) allowing an appeal by the present'' respondent who lost on the Pri~ary Court of Ifakara. The appeal was scheduled to be heard by wy brother Rubama J; on 14/3/09. On that, however, only Mr Maira, appeared Ur. Kashu~bugu was no where to be 9een! My brother Rubawa J rec0rcied the thie t0 be 9.40 a.w. · The f\xed tiue for hearing such appeals in 9.00 a-~• that is t~ sayy Mr Kashumbugu was late b.Y 40 winutes: As Mr Kashurubugu was absent . ~ ' Mr Maira asked for dis:nissal of the appeal. Mr. Brother Ruba □a J ,. 1~smJssed the appeal,.; On 14/7/89 Mr KashuL1bugu r.1ade an application bef )re th~ saine Rubawa J, for a read mission of the appeal.·' He argued both in his affidavit and in court that at the time yhe .~a~e' wa:s called U.f) for hearing before RubauaJ, he '(KashUL1bugu) was\% tr~ 'fJ, ' ',j' Library looking up for authority ... That arquement did no~ iL1press mr brother, and so, he diswissed th~ application,.. l'dr. KashU¼J0~($1/ i~ ~lrn not satisfied with that dismissal and therefore wants to a~peal to 1he ... ., ' Co~t of Appeal for Tanzania. ·He ther.efore as.ks f::,r leave to appeai. 1 I asked Mr ~ashuubugu what point of law·i~ at stake fo?, which heiseeks, ~ leave to appeal to the Court of Appe·al and he t:ild r.1e that the poinf of' law for deterQination would be whether -if a_ ~erso~ has gone to th~ +iPf~Q' to collect the necessary authorities, anrl wh~n .in fact' h~ is wi t~!J IOjrl preL1ises, that in itself is not a sufficient reason t,o set as:i,:de a ,1+fm\aa\ order. Mr Maira, has objected to the ap;lication, not on its u1eritJi a.r,~e& on limitation. He has submitted th?t the order for . disillissal ' of tha~ . a_pplication to re adwit the ap_.tieal was g~ve;11 on 4/7/09. The a.ppliqal,{'.:m;. . .., got presenyed for filinB on 20/7/89,that is tv say, it was 16 days~~- _,h.ai it got filed •. It JJeans, therefore, that th.a appeal was late by 2 da{.8• MU. Kashumbugu then wanted to get arr0und that sub □ issiJn by Mr~ Maira bf saying that he has paid for the receipt wuch earlier than that-: He (f~A.~~, the re~eipt would sh~w that he paid for the 'apr,lioati::,n with!~:;l.t;•a~ "' Like Mr Mara, I also will only confine wyself to the issue of iimitationi It is quite clear that under Court of Appeal Rules 1979, Such an ap~lication ought to have been filed within 14 days of the date of judgillent of the Ccurt that disoissed it. It is patently clear that the ap~lication is tioe barred. The application for leave to appeal to the Court of Appeal if; refused .• May be it is not amiss, if I could reQind counsels of the recent re □ arks by Mfal.iJ.a,J. in the case of Ally Hussein Masunga v. Msigwa Abdallah Kibuzi High Court Civil J.ppeal No. 12 of 1986 (Tabora liegistry) where he said, in ~t;.J refusing setting dside of a dis~issal order: I agree that his client will suffer, but if we are to protect the prJceaures of thus Court, we oust make sure that its ~· schedules are not delayed through careless acts of parties or their counsels. No party or Counsel will ever be allowed to . \ ... ign0r,.:: th8 Cow,.1and of this Court. · ;ve ·~_Be•...-±\ro. on the yreposi tion that once a matter is set for a nertain day and tiwe, then it should be heurd on that day and time, unless with prior n0tice changes are agreed upon ani □ ade. Any other appeal would.reduce the £curt process .into ridiculd as it~was·done iri this Qaa~. ~- . . · No good reasJn has ·been advanced to support'. the .pie·a to rest-ne tfae apjeal to hearing. The application is disr.1isse·d." · ... .. ti ... . ,11. • . Of Cours11 those·rewarks.were filade after ray brother had heard·r~asons for the'te~toratiJn~ I have heard then in this·cas~ but;have not based m~ decision t•o dismi':.s.. the ·ap.,;ilication .or then. I have disoissed the ap;;lication for being out vf · ·:ime • .But those •Jbservati0n; by my ·brother 1tfal-dl.a J •·'-·(as he then was) ,are pertiwent in ·a!_~_s~c.e.=.akl_.2l~ca_!~~n..'.~_-·..:. _..; ___ .. ., .. ____ ;i.t:·__.:_ :. - .J.pplica :;ion for leave t J a;>'peal to the C·)t:rt. of Appeal - for Ta11.zania is·refused. J. i •. C. MASllNCHE JUDGB · ' I 12/3/91 Corain· s.s. ;KaiJag·e; DR:· '.t Mr. Maira/~ashuobugu for the a~pl~cant Mr • .l'liaira, fu~· the· Respo~den·t .:.. Ms~bi · ... . . Order - Ruliu~ del1veted ~nd raid overt~ tlie jaities. . . ' ..... t ' ' . ., :"DRfH. COURT' '12/3/9·1 1' . .,., 'r CERTiiY .'THAT IT IS A TRUE COPY FROM THE cmrcfrN.Ai.