19790622 TZHC Mbeya
The appeal is incompetent as it is res judicata, having already been decided between the same parties in relation to the same primary court case. Additionally, the appeal was filed out of time without an application for extension.
Source-derived case information.
- Citation
- 19790622 TZHC Mbeya
- Parties
- Appellant: Tengulaga Mwasubila; Respondent: Nelson Mwaniafupa
- Court
- TZHC
- Jurisdiction
- Tanzania
- Judgment Date
- 22 June 1979
- Procedural Posture
- Civil Appeal / Final Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Res Judicata, Appeal Limitation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tengulaga Mwasubila
Appellant
Nelson Mwaniafupa
Respondent
Procedural Posture
Civil Appeal / Final Judgment
Legal Issues
- 1 Whether the appeal is competent given prior adjudication of the same matter
- 2 Whether the appeal was filed within the prescribed time
Ratio Decidendi
The appeal is incompetent as it is res judicata, having already been decided between the same parties in relation to the same primary court case. Additionally, the appeal was filed out of time without an application for extension.
Court Disposition
appeal dismissed
Orders
- No order as to costs due to respondent's absence before the court
Full Case Text
Judgment text and source record
1 paragraphs
IN THE HIGH COURT OF TANZANIA AT NBEYA • (pa) CIVIL APPEAL NO. 7 OF 1978 (ICYELA DISTRICT COURT CIVIL APPEAL NO.35 OF 1977 AND BUSALE PRIMARY COURT CIVIL CASE NO.84/1976) BEFORE P.B. iIPONZI ESQ., DISTHICT MAGISTRATE TENGULiGA 1TTAS1JBITA., ,.., .. APPELLANT V6rsus NELSON MWAI'LAFUPA, , ... ,RESPONDENT M.JAIaBETE J., - The appeal is incompetent in that it is based on a case -an appeal - that was ros-judidata. The Kyela Ditric1; Court ought not to ha-vQ Civil Appeal No0 35/77; having earlier decided Civil Appeal No.73/76 - both of which related to Busale Primary Court Civil Case No.84/76 between the same parties. The judnent in Pusalo Primary Court Civil Case No.84/76 was delivered on 29/9/76 and the 1st appeal i.e. Kyela District Court Civil Appeal No.73/76 was decided on 17/3/77. The appeal was lodged by the respondent Nelson Mwaniafupa. Thea: according to the records the present appellant - Tengulaga MwasubiIa -• purported to appeal against the decision inthe seine case - Busale Primary Churt Civil Case o.84/76 - in May 1977 - see Exchequer Receipt3for the appeal and service fees. In tie first place the appeal/cross appeal was clearly out of time. And for that reason alone the appellant ought to have been advised to file an application to appeaU out of.time. Then there is a more serious point The District Court had on 17/3/77 decided on an appeal between the same parties and in relation to the sanie Primary Court Case - the Dusale Primary Court Civil Case No.84/76. It would appear to me - on that score - that 2nd arpeal, the subject of these proceedings, was res-judicata and therefore one not to have been c-ntertained. -2 - Jccord.ingly this appeal fails by reason of it being res—judicata. But because respondent did not appear before this court - there will be no order as to costs - to this court. Dated at Mbeya this 22nd day of Jiine 1979. J L M.J. MWAKIBETE JUDGE