20010307 TZCA Dar es Salaam

I I IN THE COUET OF APPEAL OF TANZANIA AT MWANZA A CIVIL APPLICATION NO.5 OF 1998 In the Matter of an Intended Appeal BENEEN THE REGISTERED TRUSTEES OF THE JUNA MOSQUE MWANZA APPLICANT WIER SALflAK.MISSANA0000 ....... ......RESPONDENT (Application to strike out notice of appeal from the decision of the High Court of Tanzania at Mwanza) (2h.) dated the 6th day of April, 1993 in Civ.l Appeal To. )2 of 1992 RULING LUGAKINGIRA, J.A.: This is an application by notice of motion to strike out a notice of appeal brought under Rule 82 if the Court of Appeal Rules. The parties are litigating over a property in Mwanza. The decision of the High Court was given on 6/1+/93 while the notice of appeal was lodged •n that same day0 According to the affidavit in support of the motion, leave to appeal was applied for on 1/7/91+ and obtained. But until this application was filed on. 1+111/98, the appeal had not been instituted. The applicants therefore pray that the notice Af appeal be struck out with costs. The respondent's side have not filed a counter-affidavit and their story is a series of deaths. The property, the subject of the litigation, was owned by one Salama Mandazi who died on 1k/8/88, Upon Mandazi' death, 'ne Salima Missana was appointed to administer her estates. It is said that the litigation was commenced by Missana, as such administratrix, in 1988. It is further .../2 -2- said, and the thin record supports this, that Missaria was being assisted in the litigation by one Sospeter Peter. !lissana in turn died in 1993, perhaps not long after the notice of appeal was filed0 Sospeter Peter is said to have died two years ago. On 14/1/20OO the Primary Court appointed Amiri Mwirage to administer MandazVs estate in place of Missana. It is this Mwirage who appeared at the hearing of the applicat ion and he was duly made a party pursuit to the provisions of Rule 54 (2). He told me that the delay in instituting the appeal was due to his late appointment as administrator. He said that he stays in Mgara and it took time for relatives to contact him for that purpose., o/ An appeal in civil matters is required to be institutes within sixty days of the date when the notice of appeal was :odged. In this case the notice was lodged on 6/4/93 and no appeal has been instituted todate. This length of delay is evidently very iordinate and I would require very strong reasons why the notice shoul4 not be deemed as having been withdrawn 0 The lady who was in charge of the matter died in 1993 according to Nwi.rage, but it took seven years for the relatives to decide who should take her place. The fact that Mwirage stays at Ngara is no explanation. It cannot te seven years to communicate between Mwanza and Ngara or anywhere e1e in the world. I think this is a proper case where the provisions o Rule 84 (a) should be brought into play. I allow the application and strike out the notice with costs. .13 -3- DATED at day of March, 2001. \ LTJ A ' -JUSTICE OF I certify that this is a true -copy of th e ot'igina. / c) Uk/ (1,M. AIKU1IL) REGISTRAR