20030721 TZHC Arusha

/ IN THE HIGH COURT OF TANZANIA AT ARUSHA MISC. CIVIL REVIEW NO. l OF 2003 (elf HC PC CIVIL APPEAL NO. l/2002) ROBERT MEITENG'I MOLLEL ... ... ... ... ... ... ... APPLICANT - Versus - HALIMA FADHILI MFINANGA... ... ... ... ... ... ... RESPONDENT RULING MSOFFE, ]. On 7/2/2002 I struck out (PC) Civil Appeal No. 3/2002 for being time barred. The then appellant (applicant herein) has since filed this application seeking review of the Order of 7/2/2002. The application is predicated upon two grounds:- 1. " That the Honourable Judge struck out this second appeal without having heard the Applicant who is legally represented. 2. That in computing the statutory period of thirty days, the time requisite in obtaining the copy ofJudgment being appealed against is exclude4 an4 in the circumstances, the Honourable Judge ought to have started computing the period from 29/10/2001 when advocate for the Applicant was availed ofa copy ofJudgment'/ In arguing the first point Mr. Makange learned advocate for the applicant has generally urged that it was wrong for this Court to strike out the appeal without giving a hearing to the applicant. In other words, that the applicant was not given the natural right of being heard. With respect to Mr. Makange, much as this Court cherishes the right of a party to be heard, he (Mr. Makange) is not 2 however, saying whether or not this Court can or cannot use its inherent powers and strike out an appeal! In my view, the Court can always exercise its inherent powers suo moto and strike out an appeal particularly where, as in this case, it was satisfied that the appeal was hopelessly out of time. In the second point Mr. Makange has urged that time ought to have began running on 29/10/2001 when he was supplied with copy of the judgment. Learned counsel, is, however, not citing any authority in support of this proposition. In my view, 5.25 {1) {b} of The Magistrates' Courts Act, 1984 is very clear. Essentially what the provision says is that in an appeal or revision from proceedings arising from a Primary Court the time requisite for filing the appeal or revision is thirty days after the date of the decision or Order. The provision nowhere says that the period used in obtaining copy of judgment should be excluded. I am very much aware of 5.19 {2) of The Law of Limitation Act, 1971 which gives room for exclusion of the period spent in obtaining copy of judgment. However, the section will not apply in a matter of the present nature since the Act does not apply to matters originating from the Primary Court. Perhaps I should make the following observations in passing:- One, Mr. Makange's suggestion that it was necessary to obtain copy of judgment before appealing is one that could have best been taken up in an application for extension of time to appeal and not in an application of this nature. ' Two, after my decision in PC Civil Appeal No.3/2002 one wonders why the applicant has not bothered to file an application for leave to appeal out of time! Three, the points canvassed in this application are such that they could have best been taken up in an appeal and not in an application of this nature. In essence, the points are nothing but an "appeal" in disguise. Being an "appeal", so to say, this Court will be the wrong forum to canvass them! 3 The application is dismissed with costs. J.H.M~ JUDGE 21/7/2003 Date: 21/7/2003 Coram: P. M. Kente, - Ag. DR For Applicant: Mr. Makange Advocate For Respondent: Present in person. Court: Ruling delivered to Mr. Makanger for applicant and the respondent who is present in person this 21 st day of July, 2003 . . M. KENTE Ag. DISTRICT REGISTRAR ARUSHA 21/7/2003 JHM/jn.