20010222 TZHC Dar es Salaam

1. l '"'I; J .. , l ' IN THE HIGH COURT OF TANZANIA (DAR ES SALAAl\1 DISTRICT REGISTRY) AT DAR ES SALAAM APPLICATION (PC) CIVIL APPEAL N0.82 OF 1998 IBRAHIM MUSSA MWANGIA ....... APPELLANT/APPLICANT VERSUS KIDA WA BINTI FUNDI. ............................ RESPONDENT RULING MSUMI, JK: In the original suit filed in the primary court, applicant sued the respondent for recovery of a shamba. Judgment was entered in favour of the applicant. Dissatisfied with the judgment, respondent appealed to the District Court and succeeded. Against the judgment of the District Court, applicant unsuccessfully appealed to this Court. Still in pursuit of his right, applicant is intending to appeal to the Court of Appeal. However, because he was late in filing the intended appeal, applicant is now applying for leave to file the said appeal out of time. As it had been the case in the prosecution of the appeal before this court, the applicant is being represented by Mr Maftah and respondent is being represented by Mr Mkumbi. This application is supported by the affidavit of the applicant. 2 This is what he has deponed: I. That 1 am the Applicant above nained. I arn conversant with the matters I arn about to depose. 2. That judgn1ent in respect of the above case was delivered on 20th January, 2000. 3. Being aggrieved with the decision, I lodged a notice of appeal to the Court of Appeal on 28th January 2000 and the other party was duly served with notice on 31st January 2000. 4. On 27th January 2000 request was made to the Registrar of the High Court to supply certified copies of proceedings judgn1ent and decree of the Court. 5. I am applying for leave to the Honourable Court for ex ten ti on of time to file this application for leave to appeal out of ti111e and the Court issue a certificate on point of law. It is noted that one important information is missing in this affidavit. According to the record, on 28th February 2000 the applicant filed an application in Court for stay of execution. After realising that since notice of appeal to Court of Appeal has already been filed hence this Court has no jurisdiction to detern1ine the application for stay of execution, applicant withdrew the application on 8th June 2000. The present application was filed on 3rd May 2000. I 3 Respondent controverted the application tlu·ough her counter affidavit. She pointed out the fact that this application was filed 104 days after the challenged judgn1ent was delivered and no sufficient grounds have been adduced to account for this delay. With respect I agree with respondent. Indeed the affidavit of the respondent which is the only evidence in support of the application does not fun1ish any reason why applicant did not apply for leave to appeal within the statutory period of 14 days as stipulated under Rule 43(b) of the Court of Appeal Rules 1979. The only ground for the intended appea.l is the act of the first and second appellate courts for reversing the finding of fact 1nade by the trial prin1ary court after evaluating the evidence in record. The argument of Mr Maftah is that since the trial primary court Magistrate had the advantage of seeing the witnesses, his finding should not have been disturbed. The position of the law on this question is quite clear. The District Court in this case, being the first appellate court was entitled to evaluate the evidence afresh. Among many decisions, this position was restated in Martha Michael Wejja Vs. A.G. and Three Others 1982 TLR 35. Therefore the issue raised for the intended appeal is not of any importance to 4 requITe consideration of the highest court in the country. In conclusion the application is disn1issed with costs. JAJI KIONGOZI. 22/2/2001 For the Applicant: Absent. For the Responde1it: Mkumbi