safari njema t ltd vs abel kitaja mwasyeba 2023 tzhc 22318 3 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MWANZA AT MWANZA PC. CIVIL APPEAL N0. 50 OF 2023 (Arising from the decision of District Court of Geita at Geita in Appeal Case No. 34 of 2022. Originating from Civil Case No. 122 of 2022 of Nyankumbu Primary Court) SAFARI NJEMA (T) LTD………………….………………….……… APPELLANT VERSUS ABEL KITAJA MWASYEBA………………………………….…….…RESPONDENT RULING 30th October & 3rd November, 2023. MUSOKWA, J. The appellant herein lodged this appeal upon being aggrieved by the decision of Geita District Court, (N.R. Bigirwa- SRM), sustaining a preliminary objection that the appeal before him was incompetent for being time barred. The background to this matter is set out briefly as follows: - The respondent herein successfully filed and prosecuted Civil Case No. 122 of 2022 against the appellant in Nyankumbu Primary Court of Geita for breach of contract pertaining to the sale of tricycles (three wheeled motorcycles). The contract was for the purchase of two tricycles whereby upon full payment of the purchase price, the appellant herein delivered only one tricycle to the respondent. The Primary Court, 1 subsequent to conducting a full trial on the dispute entered judgement in favour of Abel Kitaja Mwasyeba, the respondent herein. Aggrieved by the decision of the Primary Court, the appellant filed Civil Appeal No. 34 of 2022 in the District Court of Geita. The respondent raised a preliminary objection against the appeal, on the ground that the appeal was filed out of time. The District Court sustained the preliminary objection and dismissed the matter, hence this appeal. Upon the filing of the present appeal, the respondent raised a preliminary objection before this Court to the effect that the appeal is time barred. Before me, the appellant was represented by Ms. Chali Erasto, learned counsel. The learned advocate Mr. Ernest Makene, represented the respondent. In his submissions, the learned counsel for the respondent argued that the appeal is incompetent for failure to comply with Section 25 (1) (b) of the Magistrates’ Courts Act, Cap. 11, [R.E 2019], (MCA) which governs appeals from a District Court in the exercise of its appellate jurisdiction. Section 25(1) (b) of MCA provides as follows; “in any other proceedings any party, if aggrieved by the decision or order of a district court in the exercise of its appellate or revisional jurisdiction may, within thirty days after the date of the decision or order, appeal 2 therefrom to the High Court; and the High Court may extend the time for filing an appeal either before or after such period of thirty days has expired.” (Emphasis added). The learned counsel for the respondent submitted that the decision of the District Court was issued on 14th March, 2023 whereas the present appeal was filed on 19th May, 2023 being twenty-five days after the expiry of the thirty days provided by the law. In her submissions, Ms. Erasto learned counsel for the appellant did not dispute the expiry of the thirty days since the delivery of the decision of the District Court to the date of filing this appeal. However, she submitted that the law provides further that; in calculating the number of days within which to lodge an appeal, due regard must be given to the period within which one awaits to be granted copies of the ruling or judgement thereof. In this respect, the learned counsel placed reliance on Section 19 (2) of the Law of Limitation Act, Cap. 89 R.E 2019 (LLA). The learned counsel proceeded to state that the copy of the ruling was granted on 19th April 2023, hence the countdown of the thirty days commenced from the said date of receipt of the ruling. In considering this approach, the learned counsel submitted that the appeal was filed within the statutory time. 3 In rejoining, Mr. Makene submitted in emphasis that the appeal was time barred. The learned counsel for the respondent submitted further that; for a matter originating from the Primary Court, there is no requirement for attachment of any additional documents to the petition of appeal. The documents aforementioned may include copies of proceedings, decree, judgement, ruling or drawn order, as the case may be. Therefore, it was his firm submission that the appeal was filed out of time. In support of his submission, the learned counsel cited Regulation 5 (3) of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, G.N. No. 312 of 1964 which provides as follows; “When a petition of appeal to the High Court is filed in the district court, the district court shall cause the date of filing to be endorsed on the petition before dispatching it to the High Court.” Upon hearing the submissions by learned counsels for the respondent and the appellant respectively, the pressing issue to be determined by this Court is the competence of the present appeal; on whether or not the appeal is time barred. The question of time limit is crucial and relates to the jurisdiction of this Court. 4 It is undisputed that this is an appeal from the decision of Geita District Court in the exercise of its appellate jurisdiction on a suit originating from Nyankumbu Primary Court. In this regard, the relevant provision to be applied on the timeframe within which to the file the appeal is Section 25 (1) (b) of MCA (supra) which provides that the appeal against the decision of the District Court to the High Court shall be lodged within thirty days after the date of the decision or order. It is on record that the decision of Geita District Court was issued on 14th March, 2023 whereas the present appeal was filed before this Court on 19th May, 2023. Clearly, this is more than thirty days after delivery of the decision of Geita District Court. The counsel for the appellant sought refuge under section 19(2) of LLA (supra). The said Section provides that: - "in computing the period of limitation prescribed for an appeal, an application for leave to appeal, or an application for review of judgment, the day on which the judgment complained of was delivered, and the period of time requisite for obtaining a copy of the decree or order appealed from or sought to be reviewed, shall be excluded”. (Emphasis added). However, this argument shall not detain me. Since this appeal originated from Nyankumbu Primary Court, the LLA is not applicable in the circumstances. Instead, this appeal is governed by the provisions of 5 the Magistrates’ Courts (Limitation of Proceedings Under Customary Law) Rules, Government Notice No. 311 of 1964. Further, in the case of Kisioki Emmanuel vs Zakaria Emmanuel, Civil Appeal No. 140 of 2016 (Unreported), the Court of Appeal of Tanzania sitting in Arusha held that: - “The High Court, we think, ought to have applied Government Notice No. 311 of 1964, which, unfortunately, has no provisions that mirror Section 19 of the LMA. Accordingly, we hold that there was no legal basis for excluding the time the respondent herein waited for a copy of judgment or decree to lodge his petition of appeal to trigger the appellate process to the High Court”. (Emphasis added). Consequently, I am of the settled opinion that this appeal is time barred and therefore, incompetent. The preliminary objection is hereby sustained and the appeal is dismissed with costs. I order accordingly. Right of appeal explained. DATED at MWANZA this 3rd day of November, 2023. I. D. MUSOKWA JUDGE 6 Court: This ruling is delivered in the presence of both parties, this 3rd day of November, 2023. I. D. MUSOKWA JUDGE 7