19970902 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES S1\Ll\.AM PC.CIV.itPPEALoNO. 92/97 KASSIM ILA. MALINDA •• o. • ••• 0 o • • • • • • • • • • • • • • • • APPELLANT VERSUS SH/I.BANI P. MKIMA •••••••••••o~••••••••••••••••oP.ESPONDENT JUDGMENT Me.cka.nja 1 J~dge: Kassim Abdallahman Malinda instituted a civil action against Shaba.ni Rashidi Nkima for the recovery of a piece of lando To a large extent he lost, save for some compensation for unexhansted developments amounting to Shs. 35,000/=• He lost again when he appealed to the District Court at Temeke. Hence this appeal in which he was represented by Mr. Mjindo, learned advocate. Mr., Mjindo has raised three grounds, namely:- ( i) the.t th~ learned District Magistrate erred in law and in fact in finding that the appeal was without substance; (ii) that the learned District Magistrate erred in law and in fact by not analysing the evidence in the Primary Court which clearly contradicted the respondent's case; and ( iii) that the said magistrate erred in law and in fact by not finding that the.Primary Court Magistrate framed irrelevant issues before commencement of the trial and that he therefore he reached irrelevant conclusions. Mr. Mijindo proposed, and was granted leave, to argue thE: appeal generally. However, before I consider learned counsel's submissions my examination of the record shows that this appeal is time-barred. This observation is based on the following circumstance.· The judgment of the a.ppellate District Court, i._rhich is the subject of this appeal was _delivered on 17th April, 1997•. According to the time limit which is set down by section 25(l)(b) of the Magistrates Courts Act, No. 2 of 1984 1 the appellant had 30 days from the qate of judgment to do so. Since, therefore, the judgment appealed aga.:.nst was delivered on 17th' April, 1997, lt: -·. ~.... ·; I , ••• ··• .t ,/ he had the right to appeal betwe12n .1.· .., .,,-- l.,J.~Cl. I.., as ±he .adfflie.oion not-c:: c,learly emphi,..c:::.es 1 section 25(3) of th~ Magistrates Courts Act makes it mandatory that:- "EirM-y a.~.al. to the High Court ·shi,Lll. be b:y-. way of P,t:.·L-ition . ....... and shall be filed· in the district court from the dee.is ion n-r ord.&r nf. which th~ appeal ffl b1~ought«t•" ~ Bireetor c;f Publ:i.~ P:t'oeccutiono ic the.only party who ma;r lodge .the .::tppeal directly before this court in curt;:iin circu..iatances4 The appellant did not comply with that. mandatory pr~cedureo Ihde.e.d._., in ~rd.er £or i=tn appeal to be in tim= th,., court £cee I chru:-geable at the time of presenting it to the Registry for fili11.g muet ·oopaid within the time limit set down for such appeals .. In !:he instant case there is no evidence 9 by way a Government Revenue Recei~t, that .the fees were paid in time at the 'l'emeke District Court 0 The only·· ,re.d&ipt on record is GRH NO. 05138955 which •:ms issued erl!Oneously in respect of Civil Appeal No. 27 of 1996. This· latter appeal is, .. in fact, the subject of the instant appP.,::iJ_. Wh~t is :important,. however, is two-fl'\ld namely, that it was issued by this ~ourt instead of the District Court "at it w.::i.s. issued on 13th June, 1997., J;'f'1r purposes di:; the Temeke anri. ~econdly 1 law, this appeal was instituted on the date the fees were paid, .namely, the 13th day of June, 1997.e A simple computation will show that from -tho cl.o:to -th~ judgment t.Jv.,.t io .e:ppG-a].ed from was delivered, that is the 1?th do.;r of .tp:r:·11, 1.9'::J'r b,,:, the do.te the p.~peal was instituted is a period of ninety (90) dayso The appeal is therefore 6~ days out of time. No leave for enlargement of time within whch to. appeal_was sough and~-btained.. So the appeal is hopelessly out of time. ~ upon the reasons. I ha.ve given hereinabove the·appeal is dismissed with costs. J.M. Mackanja JUDGE 2797f.997 Appear'l!lces: Mr. Mj-i.ndo 1 Adv~oat.;;,: .. Far Appellant Respondent: In Person I Certify that true copy of the Originale