20060831 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHA MISCELLANEOUS CIVIL APPLICATION NO. 79 OF 2003 ' C/F DISTRICT COURT OF MONDULI CIVIL APPEAL NO 6 OF 2002 MWENYEKITI WA SERIKALI YA] .......... : ...........APPLICANT KIJIJI CHAMESERANI BWit\WANI] VERSUS KARAKAI SAIGURANI ... : ........... RESPONDENT RULING R. SHEIKH, I This is an application for extension of time to file an appeal to this court from the decision of the District Court of Monduli (Hon. C.M.J. Mammba, P.D.M) in Civil Appeal No. 6 of 2002 delivered on 26/06/03. The application was filed on 1/09/2003 and is supported by an affidavit sworn by Joseph C. D'souza, learned Counsel for the applicant, who had also appeared for the applicant before the Monduli District Court in Civil Appeal No. 6 of 2002, and that, of the applicant above named RICHARD MEBOLOKINI. The : application is brought 2 I 1 ! I : under the provisions of slction 2 5 (l} (~). (proviso thereto) of i : I : ! 1 I the Magistrates' Courts Aot No. 2 of 1984. The brief backgrouJ to this mat~erl is that:- ln kissongo Primary cJrt Civil Ca~e No 18 of 2001: the • . Ii ! ! I I · applicant had unsuccessfully sued th~ r spondent for rec~very . 1 l I I of a parcel of land mea unng 1 50 ~errs. ; On appeal tq the District Court of Monduli in Civil AJpe~I No. 6 of 2002[, the District Court upheld the decision o{ t~e Primary Court. i The judgement of the DistricJ Court was 1elivered on 26/06A003. Aggrieved the applicat through : his advocates D'~ouza ' I I ! Chambers on the same tlay, that is,: ori 26/06/2003 lodged a I ' ' I: I : Notice of Appeal in the District Couh pf Monduli and applied ' ' I I : for a certified copy of t I e judgeme~t-1 The judgement i? Civil Appeal No 6 of 20021 was supp\ied to the applicafit on 1 5/08/2003 as per e1xchequer r~c~ipt No. 1441 79~9 of 15/08/2003. The reasbn advanced!I fdr the delay in filihg the ~ I • I : appeal is the delay ii obtaining, a certified copy 9f the judgement. II I • I I I I 3 I I I I Mr. D'souza learned tounsel submitted . I that if the period I ' I requisite for obtaining th~ judgement is excluded the appeal . . I . I ought to have been filed qn or before .16/09/2003. According I , I to Mr. D'souza this appliqation for exte~sion of time was filed I I on 1/09/2003 instead ~f an appeal. : Mr. D'souza learned I I counsel for the applic;ant submitte9 that he took the I I precaution of seeking ari extension of /time before filing the I : I appeal in view of conflicti,!ng decisions a$ to whether or not the , I . I time taken in obtaining the judgement !should be excluded in I I computing the prescribed time of 30 days for filing an appeal ' ' I . I ' ' I under section 25 of the Magistrates' Co~rts Act. In his ·support ' I , I he cited the cases of (PC) Civil Appeal, No 54 of 2002 Paulo I I I Lekindibulu v. Joel Sere:ngeti (MsoffeJ) as he then was and ! I . I AR.(PC) Civil Appeal No 1i 2 of 2001 -, Lo:isunga Meshila .v. Issac I , I Sethy, which two easies according I to I Mr. D'souza had I I conflicting decisions on the point. I I I The respondent h~rein KARAKAI SAIGURANI has resisted the application in a cou111ter-affidavit which was sworn by JOHN ' I I , I UMBULLA learned coun,sel for the resbondent. The counter- , ' II . ' I affidavit basically states that the appli cant in his affidavit has 1 4 not disclosed the reasons· for the delay n filing the intended appeal having received t~e judgement ,on 15/08/2003, and I I I , that the grounds of appeal enumerated i:n the affidavit do not I ' . II support the averment that'.the appeal has1 a chance of success. In his oral submissions Mr. Umbu la submitted that the applicant has failed to advance sufficient reasons for failing to I I I file the Appeal within ti111e after Judgerent was obtained on I 15/08/2003, from which date according to Mr. Umbulla the I . I : I applicant had 30 days within which to fi le the appeal going by 1 I I , I the decisions rendered 9y Hon. Shangvya J. Mr. Umbulla is of I I the view that had the Appeal been filep within 30 days from ' I I I the date when the judg~ment was obtained i.e. 15/08/2003, I ' I the Appeal would have been within: time. Mr. Umbulla I I I contended that the appli~ant has not.: a~vanced sufficient cause ' I , . I or reasons for the de'lay in filing the Appeal within the I I , I . I prescribed time after the applicant o;btained a copy of the I I I judgement and secondly that the int~nded appeal does not : I ' I stand any chance of success, and called for its dismissal. I ' I i I l "· I l 5 I : I : ' I have carefully consi~ered the aff:idLtal depositions knd I. 1 I ' I I I submissions of the resqective courysel on behalf of ithe l ! I . ' I I I conten d mg parties. I. : I : ; . I : Indeed it is evident t~at the judg\ment in Monduli District .I I I I Court Civil Appeal No 6/2~002 I was de(ivJred I I on 26/06/03 \and ' . Notice of Appeal and apdlication for \ kcbpy of the Judgement I : :, I . in question was lodged ion the sanile day. A copy of; the Judgement was obtained bn 1 5/08/260;1. Section 25 (1) (~) of i ! I I • ·I the MCA, 1984 prov1des:-1 J "( 1) Save as hereinafter p~ovided :- l (a) Not applicable l / i (b)ln any other proc~edings any l party if aggrieved by the ll ; I I ;I decision or order bf a district court in the exerciseiof its !! I I . I I I appellate or reviiional juris9ict ion may, within :thirty 1 Ir I I I I I J days, after the d)ate of the defision or order, appeal I 1 I therefrom to the ~igh Court. I II I I \ Provided that th~ High Court niay I extend the time ' for . I ·I ; ' , . filing an appe41 either bef~He or after such pe~iod of thirty days has eJpired." i l / I I II ,,., I 6 I Indeed as submitted by both counse it appears there are I I I I conflicting decisions of this court as to whether or not the time • I requisite for obtaining a copy of the Jud~ment intended to be I . ., appealed from may be exdluded from th~' time limit prescribed under 5.25 (1 )(b) proviso for filing an app eal. In my considered 1 1 I I I opinion in the circumstances of this' application learned I counsel for the applicant ·,was right in taking the precaution of I I I I seeking an extension of :time before- fil;ing the actual appea'I. I . There is nothing wrong iri that. Indeed ~he proviso relied on in I , I the application states "1Provided that : the High Court may : I I ! I extend the time for filing an appeal eitHer before or after such I · I I I period of thirty days . has expired".: I I The application is ' accordingly competent and properly made even if made before , I I the 30 days after obtaining the judgement had expired. I am I I also satisfied that the applicant has sh~wn good cause for not I I filing his appeal within the time presc~ibed, on account of the • I delay in obtaining the j~dgement soug:ht to be appealed from, 1 I I I which was obtained on :15/08/2003, while this application was I I I lodged on 1/09/2003. 7 As to the contention by Mr. Umbulla ,that had the appeal ; I I I been filed within 30 days after the obtaining of the judgement I I I it would have been within the time prescribed by law - i.e. 30 I I I days after obtaining a copy of the judger,nent, in the light of I I I decisions of this court favouring the exqlusion of the period I I ' I requisite for obtaining the: judgement: so:ught to be appealed I I I from the period of limitation, as stated earlier this issue seems ' I I I I • 1 I i still not to be settled. For the record I am one of those who I I I I subscribe to the position. taken by Hon:. Shangwa, J. on· the I I I I issue, that the time requisite for obtaining a copy of the I ' : I I judgement to be appealed from may be excluded from the I I I I period of limitation. In m_y view S. 19 of the Law of Limitation I I I Act is also applicable to matters originating in primary courts 1 I ' I " I by virtue of the provision~ of S. 46 of the Law of Limitation Act. I I ' I Indeed this is the positiqn taken by this court in the case of ' I I I 1 (AR) (PC) Civil Appeal No. 18 of 2004 - Sarah Msungo .v. Bauda ' I I ' I Abdallah in a reasoning by Hon. Rutakangwa, J, as he then was which I respectfully subscribe to. 8 However, in the light of the conflicting decisions on the issue as pointed out by both learned counsels, and in the . apparent absence of a definitive decision of the Court of Appeal, the applicant caQnot be faulted for taking the precaution of seeking extension of time before filing the appeal (within the 30 days after obtaining a copy of the I judgement,) rather than risk having to face an objection for having filed an appeal without an order for extension of time. In any case as stated earlier herein u~der S. 25(1 )(b), the proviso thereto relied on by the applicant this court has the ' I discretion to extend the ti.me for filing an appeal either before ' or after such period of thirty days has expired. Even assuming I you take the view advarjced by Mr. Urnbulla, that the time I ' requisite for obtaining a:' copy of the judgement is excluded from the period of limi,tation, this application having been I , made/filed before the ex;piry of 30 days after obtaining a copy of the judgement is in ·f11Y view within the provisions of S. 2 5 (1) (b) of the Magistrates;' Courts Act 1984. j . J 9 I am also satisfied that this is a mc;ttter which befits consideration on appeal, and that subst~ntial grounds of appeal exist as advanced .· in the applid:1.nt's affidavit, in particular, the following ground:- ] 'The District Court erred in law irj that being a l st appellate court it failed in its duty tp reconsider all the ' evidence in the case, evaluate the evidence itself and to ' draw its own conclusions on whether the trial court's I decision ought to sta~d" For the above reasons I will, an'd do hereby, grant extension of time for filing the intended ~ppeal, and order that ' the same should be lodg~d in court wit.hin three weeks from the date hereof. I make no order as to costs. R,< R.SHEIKH JUDGE · 30/08/2006 . ,,. ..,,,, .f!>"f (': · l 1 ·i I 10 I l I I .I I I ! ' ' ' I ' I I Ruling delivered this 3~ /08/2006 iii tHe presence of Mr. I . ! . .1 I . · .I Umbulla learned counsel for' the respond~nt and also holdingi : ! I ' brief for Mr.D'souza learne~ counsel for ithe applicant, and i I II t I '! K- .. SHEIKH . I ;,I JUDGE 3~ /08/2006 'I Ii I f I /mm I I t I I I I ; I -1 iI r•' I I I II r l I l I I . ' I I ' '' I i I I I ! ! ! f I I I I I I I I. I 1•