20090317 TZHC Arusha

In the high court of Tanzania At arusha Civil appeal no'. 39 of 2004 (originating from Karatu Primary court Civil case No 44/92 C/F Mbulu D/C Civil ~ppeal NO. 4/2001 DAUDI BURA MANDA ...........................................APPELLANT VERSUS SAFARI QWARAY ...............................................RESPONDENT (Appeal from the decision Of MBULU D/COURT) CW.MANOLO - SOM) Dated 21st June, 2004 In Civil Appeal No. 4/2001 JUDCMENT OF THE COURT 1sr September, 2008 - 17th November, 2008 SAMBO, J. The appellant in this case, Daudi Bura Manda, was the respondent in the Mbulu District court Civil Appeal out of Time No. 4 of 2001. He was aggrieved with the Ruling of the court dated 21 st day of June, 2004, which granted leave for the appellant to file his appeal out of time. Through his learned counsel, Musei, the appellant raised five grounds of appeal, but I am convinced that at this time, the 1st and 2nd grounds are very relevant, which reads:- 1. That the learned senior District Magistrate grossly erred in law in converting the substantive Civil Appeal No. 4/2001 into an Application for leave to Appeal out of time without involving the parties in the matter. 2. That the District court erred in law and fact by issuing a Ruling instead of Judgment in the Civil Appeal No. 4/2001 and in the absence of any Application together with its supporting Affidavit. This appeal was argued by way of written submissions, and Mr. Musei, learned counsel for the Appellant filed his written submission in support of the appeal on the 5th day of August, 2008. on the other part, Messrs lmboru Chambers Advocates for the respondent filed their written submissions against the appeal on the 22 nd day of August, 2008. Mr. Musei, learned counsel, filed his rejoinder on the 29 th day of August, 2008. Thereafter, I read with keen interests the submissions of both learned counsels as well as the records of the 1st appellate court and the lower trial court. 1 noted that the decision of the Karatu Primary court, Civil case No. 44 of 1992, was delivered on the 15th day of June, 2 1992, being a consent Judgment. Anybody aggrieved with that decision, were expected to lodge his appeal in the District court of Mbulu, within thirty days from the said 15th day of June, 1992, as per section 20{3> of the Magistrates' courts Act, CAP. 11 R.E. 2002, which provide thus:- " 20 (3) Every appeal to a district court shall be by way of petition and shall be filed in the district court within thirty days after the date of the decision or order against which the appeal is brought." {emphasis added> under the provisions of section 20 (4) {a> of the same Act, the district court may extend the time for filing an appeal either before or after such period has expired. It provide thus:- "{4} Notwithstanding the provisions of section {3)- {a> the district court may extend the time for filing an appeal either before or after such period has expired." The essence of the limitation of period in which to institute any suit, is to see to it that litigations comes to an end and litigants settle down with their valuable social and economic activities. Where the laid down limitation period has expired, no litigant is in law, allowed to institute that suit unless he has obtained leave of the relevant 3 court to do so out of time, or the court has extended that period. The said " Mbulu Civil Appeal out of time No. 4 of 2001" (sic> was filed on the 25 th day of July, 2001, titled "Petition of Appeal out of Time" (sic>. Now that the decree appealed against was delivered on the 15th day of June, 1992, the day the said suit was filed, it was extremely time barred! If there were any good reasons for the said suit to be filed out of time, then, the appellant were duty bound to move the court, under the provisions of section 20 (4> (a> of the Magistrates' courts Act, (supra> so that it could think of extending the time in which to file the same. This is the accepted procedure. I have very carefully perused the records of the said "Mbulu Civil Appeal out of time No. 4 of 2001" to see if there was any leave of the district court to file the same out of time, granted prior to its filing on the 25th day of July, 2001, and found none. surprisingly enough, 1 came across of a ruling of the district court of Mbulu dated 21 st day of June, 2004, granting leave to the appellant to appeal out of time. That ruling is headed:- ln the District court: of Mbulu District At Mbulu Mbulu Civil Appeal out of time No. 4/2001 Original Karatu Civil case No. 44 of 1992 . 4 Before E.A. Kombe, ESQ Principal Primary court Magistrate Appellant/Applicant .........................Safari awary (Defendant> Of KRT Respondent ....................... oaudi s/o Bura Manda Of auons VIK Karatu one reasonable man wonders, was it an appeal or application? why in the typed ruling of the court, Mr. Safari awaray is referred to as an •applicant'? The original document used to file the said 'Civil Appeal out of time referred Mr. Safari s/o awaray as 'an appellant' how come in the said ruling is referred to as an applicant, using the same case file? certainly there was apparent confusion in the procedure adopted by the 1st appellate court. Take it as it is, though the ruUng is in this case file, there's no application of any kind to file the suit out of time such an application ought to be supported by an affidavit, served to the other party for him to file counter affidavit. Had this been done, the application could have been dealt with in a different case file from this one. What can be seen in the case file before the ruling was delivered, are the written sub'missions by the appellant dated 7th day of May, 2004, and Respondent's written submissions filed on 27/4/2004. There upon, the honourable senior District Magistrate prepared the ruling delivered on the said 21 st June, 2004. These were 5 Cl t J submissions on which application, where are the chamber summons, affidavit and counter affidavit, before such submissions? In this matter, the 1st appellate court adopted its own procedure not known in our courts of this country. The decision need not be left to stand as it is. Be it as it may, 1am really satisfied that the purported Mbulu Civil Appeal out of time No. 4 of 2001, was filed on 25 th July, 2001, beyond the limitation period or in other words, it was filed out of time before obtaining leave of the district court to do so. It was therefore improperly before the court. The ruling of the district court dated 21/6/2004, granting leave to appeal out of time, for any reasons, were mandatorily required to be obtained prior to the said 25 th July, 2001, when the case was filed. such ruling ought to be a result of an application filed in court, supported by an affidavit, served upon the other party to enable him file the necessary counter affidavit. For all the reasons advanced herein above, 1allow this appeal with costs and order that the said "Mbulu Civil Appeal out of time No. 4 of 2001" be struck off from the records forth with. It's accordingly ordered. 6 ae Sgd. 1 K.M.M. SAMBO JUDCE 13/11/2008 Delivered in chambers this 4th day of December, 2008, in the • I presence of the appellant and in the, absence of the respondent and his learned advocate. Sgd. K.M.M. SAMBO JUDCE 4/12/2008 1hereby certify this to be a true copy of the original. DISTRICT /mm