nganga nghabi vs kilinguja ngeleja 2019 tzhc 272 9 may 2019

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF SHINYANGA AT SHINYANGA APPELLATE JURISDICTION PC. CIVIL APPEAL NO. 02 OF 2018 (Arising from Meatu District Court Civil Appeal No. 16 of 2017 and Original Civil Case No.3/2017 of Mwandoya Primary Court) NGANGA NG'HABI....................... .................................. APPELLANT VERSUS KILUNGUJA NGELEJA................................................. RESPONDENT Date of Last Order: 09/05/2019 Date of Ruling: 09/05/2019 RULING ------- 1 -------- C. P. MKEHA, J By way of a preliminary point Qf objection, Mr. Kilunguja Ngeleja (respondent) has moved the court tcj dismiss the present appeal for reason that, the same is time barred. Though a lay person in the field of law, the respondent on his own argued the preliminary objection which is a pure point of law. Submitting in respect of the objection, the respondent told the court that the appeal was filed before this court: out of time. The respondent informed the court that, whereas the District Court's decision was delivered on 09/06/2017, it was until the 11th day of January, 2018 when the present appeal was lodged before this court. The respondent asked the court to dismiss the appeal because of absence; of reasons for the delay. In reply, Mr. Ng'habi (the appellant), had nothing to dispute from what the respondent had submitted. It is important to note that, the present appeal originated from Mwandoya Primary Court within Meatu District. Tfhat being the case, section 25(1) (b) of the Magistrates' Courts Act becomds operative. The said section provides as hereunder: "... in any other proceedings a\iy party, if aggrieved by the decision or order o f a district court in the exercise o f its appellate or revisionai jurisdiction may within thirty days after the date o f the decision or order appeal there from to th^ High Court and the High Court may extend the time for filing an appeal either before or after such period o f thirty days has expired" I The appellant's petition of appeal beprs an endorsement to the effect that, the said petition was presented for filing before Meatu District Court on the 11th day of July 2017. Exchequer Receipt No. 13089307 dated 11/07/2017 was issued to the appellant by Meatu District Court. In terms of section 25(3) of the Magistrates' Courts Act, every appeal to the High Court should be by way of petition and should be filed in the District Court from the decision or order in respect of which the appeal is brought. Upon perusing the District Court's record, the decision sought to be faulted was delivered on 09/06/2017. The petition of appeal was filed on 11/07/2017. It was after thirty two 'days since when the District Court's decision was delivered. The law insist^ on filing of the petition of appeal at the District Court within thirty days. Certified copies of judgment indiccite that, the same way ready for collection on 29/06/2017. Assuming that the appellant obtained the said copies on 29/06/2017, he was still within time when he lodged his petition of appeal on 11/07/2017. This is because, for purposes of limitation, the time spent to obtain proceedings and copies of decision has to be excluded. The respondent was of the view that, ^ppeal was filed out of time referring to the date on which the petition wds received before this court i.e on 11/01/2018. That is entirely wrong, foj* limitation purposes, reference is to be made to the date on which the petition was lodged before the District Court and not the date on which the' petition was filed before the High Court. i For the foregoing reasons, the objection is held to be unmeritorious. The same is dismissed. C. P. MKEHA JUDGE 09/ 05/2019 COURT: Ruling is e presence of the parties. MKEHA DGE 705/?019