samson mseeni kivuyo vs elisamshe mtui 2002 tzhc 2054 21 june 2002

IN TI-IiL HIGH COURT OF TANZANIA AT AHJSILi (l'C ) CIVIL Ai-l-l^iL NO, 52 OF 2001 (U rban i t . Cou r t C i v i l Case No, 1 9 7 /9 2 C iv ,A p p » 7 /9 A ) S. iMSON MSS-BNI KIVUYO ( a l i o s MSiSiSNI NGa NUNGwI ) . . » ;ul'£LLANT - V e rsu s - ELISAMSKiS MTUI o a o ,,, .............. . . , ..................... a HESxOI^DMT J U D G K g N T MSOFFE, Jo This matter has a fairly old history. It started with Civil involving Case No, 197/92 the parties herein over a cl^im of a piece of land* The appellant lost in those proceedings and made a first appeal to the District Court of Arusha vide Civil Appeal No,7/94-• He won partly, with the said Court (Mafwenga, SRM) saying somewhere in the judgment as follows:- nThis Court thus find that the appeal has partly succeeded to the extent that the lower court finding in respe«t of the measurement of the land are taken to represent the land each and everyone of that bought,, For the nvoidance Of doubt the appellant now owns a piece of land measuring about 14- meters by 8 meters as per the map on page 3^- of the lower court proceedings while the respondent owns about 1A meters by 1A meters as per further details as per the sketch map”. The above decision was given on 30/4-/96, Disatisfied, the appellant filed an appeal with this Court i»e, Civil .appeal No0 56/96* On v ’■ * v ' 8/^.1/2000 my brother Rutakangwa, Jo *dismissed the appeal for being timebarred* Yet again, this appellant came back again to this Court - this time seeking a revidw of the jv-dpn^nt of 8/11/2000. The application for review was strfek: out on 9/7/2001 with my brother Rutakangwa, J.> opining and holding that the available remedy was to appeal» The appellant does not appear to have taken up that advice* Instead* he came back to this court ag*in - this time with an application for leave to appeal out of time i.e. Misco Civil Application No.90/2001. On 16/10/2001 I.granted . * the application principally because following the absence .of the , respondent who was; duly served.then the application was in effect uncontested. He has since-preferred this appeal. 9k In my considered view, tfris appeal is misconceived. Having .' this court became functus officio, dismissed i'C Civil appeal No. 56/96.* The remedy, as correctly pointer out by my brother Judge’Rutakangwc-., was to appeal and not to come back to this Cour^ agHn. Th?;vt--i-«- this Court cannot enter­ tain the appellant twice c Needless to say, I could have struck out the application for leave to file the appeal out of time and thereby •_«v, paving n way for this appeal but in fairness I thought of giving the appellant a chance to say something about the then intended appeal* Since I did not strike out the application, at that time it is not late in the day to strike oil- ._paal« The appeal is accordingly struck out with no order as to costs. J. H. MSOifFB JUDGE 21/6/2002 Date: 21/6/2002 Coram: t\ Khaday ~ DR For Appellant: Iresent in person. For Respondent: Absent. Court: Ruling read out today 21/5/2002 in the presence of the * * appellant but in the absence of the respondent. DISTRICT REGISTS*vR 21/6/2002