kaansari kinasha vs filemon eliumanginy 2005 tzhc 276 1 november 2005

IN THE HIGH COURT OF TANZANIA

AT MOSHI MISC. CIVIL APPLICATION N O * 143 'OP 2002 (C/F HAI DISTRICT COURT CIVIL APPEAL NO.4/96 KAANSARI KINASHA ;. I.. •> APPLICANT •; VERSUS FILBMON'3LIUMANGINY •.R^PONDENT ... This application hss been brought by the Applicant under the proviso to Section 25 of the Magistrates* Courts A.ct^ 19&4 for extension of time to file an appeal against the Judgement of the Hai District Court in Civil Appeal No. 4 of 1996* The said proviso stated as follows ‘ ^provided that the High Court may extend the time for filing an appeal either before or after such period of thirty days has expiered.:: The application is supported by the affidavit of the Applicant* On the other hand, the Respondent filed a Counter-affidavit opposing the said application. •, ' . (> Mr. Jonathan, learned counsel advocated for-.the Applicant while Frof. Msanga learned counsel advocates for .the Respondent. By consent, this court on 1.5/4/2004 ordered the parties to ar^ue the application by way of written submissions. Both learned counsel' have fully complied with the said order and I hereby sincerely commend them for their rieligenc* and very lucid submissions^ Mr. Jonathan contends in his submission that in the District Court, Civil Appeal Mo. 4 o f '1996; was argued by way of written submissions and that having filed the submissions no date of delivery of Judgement v/as fixed hence the Respondent expected to be

notified in due course of the date of its delivery by the said court. He contends further that as a considerable period passed without such notice being forthcoming, .1 the Applicant and his advocate became apprehensive hence on 8/10/2002 s they conducted a search at the regitry of' the said court and discovered t that., judgement had been delivered on 28/ 8/2002 in the presence of the Respondent but in the absence of the Applicant and the Advocates for both parties. Mr. Jonathan contends further in his submission that the Applicant being- dissatisfied with the-said judgement he wanted to pursue an appeal but as the period of appealing, that is 30 days, had ran out he filed the present application on 24/10/2002 for extension of time to fil-e an appeal against 'the said' judgement of the Hai Dis?tx»ict Court* The Applicant has also annexed the intended petition of appeal to his affidavit in support of the application^ Prof. Msanga, in his submission vehemently opposed this application* First, he contends that the application is not properly before this court because on his opinion in terms of Section 25 of the Magistrate* Courts Act 1984 and Rule 3 of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, 1963 published 011 29/5/1964 Under G.N. No.3^2. the required application is an application for leave to appeal out of time and not an application for

extension of time as filed by the Applicant, The said Rule 3 of G 0JN. No* 312/1964 states as follows i?3. An application for leave to appeal out of time to a District Court from a decision or order of a Primary Court or to the High Court from a decision or order of'a District Court in the exercise of its appellate,or- revisional jurisdiction shall be in writing* ‘ Shall set cut the reasons why a petition of appeal was not or cannot be filed , • < i j within thirty days after the date of the decision or order against which it is desired to appeal and shall be accompanied by the petition of appeal or shall set out, the grounds, of objection to the decision or order. Provided that where the application is to a District Court.., the court may permit the applicant to state his reasons orally and shall record the s ame.t? Based on the above objection Prof. Msanga, as I have stated contends that the application is not properly before this court and prays the same to be dismissed with costs. In my considered view and as rightly stated by Prof. Msanga in his submission, the question to be considered, and answered is whether there is an application before this court for the purposes o'f Section 25 of the /3 Magistrates' Courts Act No. 1984 and Rule 3 of G.N. No. 312 o f ^29/5/1964, Based on his above submission,’Prof* Iisanga contends that the application filed by the Applicant in this

court is not the one provided for by the law hence it is not an applicati.on.-anu the saxae --should be dismissed with costs; However, in my considered view, I am much more persuaded by the T e Joinder submission of Mr, Jonathan in w hich1,h e :con tends that an appli­ cation for extension of time t o ;appeal 'is as good as an application for leaVe to appeal out of time*-,As we have seen the terminology used in the proviso to Section 2J? of the Magistrates5 Courts Act, 1984 isj- .. . -Provided tnat the High Court inay extend the time ■ r. ■ ,• for filing an appeal either before or after such period of thirty days has expired (underlining mine.)# The words used in GVN* No, 3^2 of 29/5/1964♦ which is a subsidiary legislation to the above named Act are an application '-for leave to appeal 1 out of time*" I quite Stgree with the submission of Mr* Jonathan that the Act being th^ principal legislation, the subsidiary provision, that is G„No 3^2/1964 could more appropriately havea embodied the words ••for extension of time;! in place of :for. leave to appeal out of time1-. However as stated by Mr, Jonathan in his submission that as in both the Act and the mentioned Government Notice the intention is enlargement of time for appealing therefore the phrases :-for leave to appeal out of 'time'*1 and r5for extension of time to appeal;; mean .one and the same thing. • .Based on the

aforesaid position, 'I hold that the application is properly before this court hence the objection raised by Prof, Msanga is without ment and hereby fails accordingly, . ' ! .t ‘ * As regards the merits of the application, fir, Jonathan in his contends submission and in the affidavit of the Applicant?that the Applicant as the Respondent in Civil Appeal Ho* 4 of 1996 before the Hai District Court was not notified of the date of delivery of judgement that was delivered on 28/ 8/2002 by the said court and that he only came to know that the same had already b 6en delivered in the present of the Respondent on 8/ 10/2002 after conducting a search in the registry of the said court. However, Prof. Msanga, in his submission vehemently contends that the Applicant in his affidavit has not given sufficient reasons for his delay to file the Petition of appeal* He contends further that the Applicant in his affidavit was required to show that he had made regular follow up of the outcome of the appeal he made inquiries about the judgement b y way of letters* He contends further that the • • * # •//4“ Applicant in his Affidavit contends that for a longtime he was- not notified of the date of delivery of judgement which means that he simply stayed at home w i t h o u t 'making a follow up and that though the ''*' Applicant in his affidavit contends he had coraounicated with his advocate before

going to the District Court on 8/10/2002 no time of-, such communication has beep disclosed in the said affidavit**,. P ro/♦ Msanga contends that in the circumstances, the Applicant was not deligent as otherwise he would have made correspondence with the said lower court as regards the date of delivery of the Judgement* In • other words Frof„ Msanga contends that there were some degree of- •> negligence and inaction on the part of the Applicant* In addition, Prof* Msanga has vehemently challenged the contention of the Applicant- that a search was conducted on 8/10/2002 at the Ragistry of the District Court which showed that the Judgement had already been delivered on 28/8/2001* He states that there is no evidence to that’effect .in t h e •affidavit of the Applicant as no letter requesting for such search was annexed to the said affidavit, no search receipt and "the affidavit of the person v/ho assisted in the search were appended to the said affidavit hence the allegations are merely hearsay (Citing Leonsi Silajo,Ngalai Versus ^onj, Justine Alfred Salakana & The Hon. Attorney General, Civil Application Ho. 41 of 1997s Court of Appeal of Tanzania (unreported). He further submitted that the circumstances of the delay in filing the Petition of appeal do not constitute suffi­ cient cause (citing 'Daphne Fammy Versus Kumary Alexander Carson (19b3) A. pk6 and Inspectorj^adikijind

Others Versus Gerald Nkya (1997) T.L.R. 290). ': ‘ . -. Having carefully considered the submission of both learned counsel, I am of considered m:i nd that th§ issue to be determined is v;hether the circumstances of the delay on the part of the Applicant constitute sufficient cause to ^’ rant the application, I have gone through the record of the District Magistrate specifically the proceedings of the said court on lV*7/2002. It reads as follows:- vl .•■ ’ l,prder^ Judgement on 28/8/2002* 'Respondent-be notified. .., •. ;-f . ■Go Mo S.HAY0, SDM 1 . / 1 V 7/2002 • On the said date of 14/7/2002 the r.aid record shows that’the Appellant (present Respondent) was present in the said court when the said order was made but the Respondent (present Applicant) was absent* So the order of 14/7/2002,' was clear that judgement will be delivered on 28/ 8/ 2002, and th©> Respondent (present Applicant) who was absent on the said date should be notified cf the said date. Indeed, Judgement was delivered on 28/ 8/2002 as per the said order but the record .shows that the same was delivered in the absence of the Respondent (present Applicants) and there is no evidence on record to show that a notice was- ©ent to th*- Respcndent (present Applicant) to inform him of the said date of delivery of judgement as ordered by.-the said court* In my considered view, the said order was to be- implemented by the

said court itself and the Applicant is not at fault 0 Much, as I admire the submission of Prof. Msanga on want of deligence on the part of the Appli c a n t , the truth remains that the District Court never issued notice of date of the said judgement to the t Applicant (then ^respondent) in defiance of its own order cf 14/7/2002* In appropriate case, the submission of Prof* i-'sanga on want of deligence would have carried the day. As it stands, I g C along with the submission of Hr* Jonathan that no notice of dave of delivery of Judgement was issued to the Applicant contrary to the order cf the said court dated 14/7/2002* In the circumstances, I find and hold that the Applicant has demo-' -T nstrated sufficient cause waranting this court t o grant this application as I hereby do for extension of time to appeal against the judgement and order of the District Court, such appeal should b*e instituted by the Appli­ cant within 30 days from today vide the District Court* I make no order as to costs as the Resjjondent is not at fault in t his matter* It is so Ordered. F. A* R. JUNDU JUDGE, 1*11.2005 Right of Appeal explained• n Fo A„ R # JUNDU

JUDGE 1 / 1 1/2005 /6 1/1J/20C5 Coram: F 0 A. R*('Jundu* jJ*1 For the Applicant; P;r0 Jonathan, Advocate For the Respondents Mr, Jonathan/Prof. Msanjrs, Advocate CC: Kimario . 1 •"•i" " * “' . ... t.. . Cojurt;^. Ruling delivered in the presence of’Mr* Jonathan, learned counsel, for the A?jplicant and'Mr., Jonathan. holding brief for Prof* Msanga for the Respondent* *•' ' fT A o R* JUNSU, '* JUDGij, 1/11/2005 AT MOSHIo Vi-: _