samson mseeni kivuyo vs elisamehe mtui 2005 tzhc 278 18 august 2005

IN THE HIGH COURT OF TANZANIA

AT ARUSHA MISC. CIVIL APPLICATION NO. 80 OF 2002 (C/F. High Court of Tanzania (PC) Civil Appeal no. 52 of 2001) SAMSON MSEENI KIVUYO.............................. APPLICANT Versus ELISAMEHE M T U I...................................RESPONDENT

RULING SHEIKH, J . This is an application for leave to appeal to the Court of Appeal of Tanzania brought under r. 43 of the Court of Appeal Rules, 1979. The applicant wishes to appeal against the decision of this court (Msoffe, J. as he then was) in (PC) Civil Appeal No. 52 of 2001, which was delivered on 21/6/2002. The application is supported by the affidavit of the applicant SAMSON MSEENI KIVUYO and during the hearing of the application the applicant was represented by Mr. Lundu, Learned Advocate. The respondent refused to accept service on him of the Chamber summons as evidenced by the affidavit of service. The hearing of the application accordingly proceeded ex-parte. This application was filed on 3/7/2002 within the fourteen days period prescribed under the provisions on rule 43 of the Tanzania Court of Appeal Rules. As the matter originates in a Primary Court, I am required to certify that there are points of law fit for consideration by the Court of Appeal of Tanzania. The brief background to this matter is that the proceedings started with urban primary court Civil Case No. 197 of 1992 involving a dispute between the parties herein over a claim of a piece of land. The appellant lost in those proceedings and made a first appeal to the District Court. He partly won, however dissatisfied the appellant filed (PC) Civil Appeal No. 56 of 1996 in this court. On 8/11/2000 Hon

Rutakangwa, J. dismissed the appeal for being time-barred. Yet again, the appellant came to this court seeking a review of the judgment delivered on 8/11/2000. The application for review was struck out on 9/7/2001 with the court holding that the available remedy was to appeal. Thereupon the appellant filed an application for leave to appeal out of time i.e. Misc. Civil Application No. 90 of 2001. On 16/10/2001 the application being uncontested was granted as prayed. He then preferred (PC) Civil Appeal No. 52 of 2001, in this court. The appeal was dismissed, and the court held that having dismissed (PC) Civil Appeal No. 56 of 1996 this court had become functus officio. The court also pointed out that the appropriate remedy was to appeal presumably to the Court of Appeal. Aggrieved the applicant now seeks to appeal against that decision of the High Court in (PC) Civil Appeal No. 52 of 2001. As the respondent has refused service the application was not contested. The applicant has evidently duly lodged a notice of appeal. Upon careful consideration of the affidavit of the applicant in the light of the judgment sought to be appealed against, I am satisfied that the intended appeal against the decision aforesaid involves points of law which are fit for consideration by the Court of Appeal of Tanzania. I certify that the points of law are as follows:- 1. whether the High Court had

misdirected itself in law in holding that by virtue of the ex parte judgment of 8/12/2000 in PC Civil Appeal No. 56 of 1996, it had become functus officio, and 2. whether the High Court had erred in law in refusing to entertain the said appeal on merit. t In the result this application succeeds. The application for leave to appeal to the Court of Appeal is granted to the extent shown above. I make no order as to costs. R. SHEIKH

JUDGE 15/08/2005 c . o :u\\r\g reaair) Chambers this 18>th day of August 2005 in the absence Jr' ■ ,•/» v ^-Of parties, and in the presence of Mariam Bench Clerk. o 18/08/2005 RS/hjm.