20030801 TZHC Arusha

I IN THE HIGH COURT OF TANZANIA AT ARUSHA CIVIL REVIEW NO. 1 OF 2002 (C/f (PC) CIVIL APPPEAL NO. 8 OF 2002) i :l ' .TUMUTI SARUNI I LAKINDI SARUNI. ... ••.•••••• 1•••••••••••••••••••.••• i •• APPLICANTS . ..t . I,.,• -Versus- ........ . I EDWARD L. MEIYANI .. .! ....,.. RESPONDENT 'I RULING MSOFFE,J. On 19/2/2002 I struck out PC Civil Appeal No.8/2002 for being time barred. The applicants (then appellants) have since fileq this application seeking review of that Order. The application is apparently broU:ght under the provisions of Order XLII Rule 1 of The Civil Procedure Code, 1966. I may pause ,here and say that I am not too sure if, an application ·of the above nature could " ' properly be grounded on the above provision. Howeve~, may be, in the absence of a clear provision in The Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, 1964 - G~ 312/64 to govern an ' . application of the present nature the applicants have found it plausible to base 'i the application on the above stated provision. Be as it may, the crucial issue will be whether the application has merit. I In both the memorandum of review and the ap~licants' oral submissions, 1 the said applicants are essentially saying that time oug,ht to have begun running ., from 18/8/2001 when they were supplied with copy of judgment. And accordir:ig to them, on receiving the same, . they made sure that o'n' 18/9/2001 their petition ' of appeal was presented to the Court where it was stamped, but it was not until 2 I 14/9/2001when it was paid for because there was no clerk:at the Monduli District Court to attend them at the time. In other words, in the absence of the said I clerk another clerk at the Kisongo Primary Court attended ,them on 24/9/2001 by I issuing them with the necessary exchequer receipt. I I I have gone through the record very carefully. In :the end, I am satisfied I that the application must fail for the fo'llowing reasons:- ; I One, a look at the memorandum of review will show tha,t this is nothing but an ' "appeal" in disguise. If so, one wonders why the applicants have filed this "appeal", so to say, instead of filing an "appropriate appeal" with the Court of Appeal. Two, in my reading and understanding of S.25(1} Cb) of The Magistrates' I Courts Act, 1984 I do not get the impression that it was necessary for the I applicants to wait for copy of judgment before appealing. In saying so, I am very much aware of S.19(2} of The Law of Limitation Act, 1971 but I do not think that this sub-section would apply in a matter ~rising from the Primary Court. I I Three, even assuming that it was necessary to wait for ,copy of judgment before appealing, one wonders what the applicants were d9ing from 18/8/2001 to ' 18/9/2001 i.e. from the date of receiving the copy of j~dgment and the date of presenting the petition to the Court! I I I I may also say one thing in passing. If the applicants have all along been ' so keen to appeal against the decision of the District: Court one wonders why they have not taken the necessary steps to prosecut~ that intention. Surely, they could have always filed an application for leave to appeal out of time and I assign reasons for their failure to appeal within ti;me - reasons which, if plausible, would always receive a kind consideration by:the Court. The application is dismissed with costs. 3 J. H. MSOFFE JUDGE 1/8/2003 Date: 1/8/2003 Coram: P. M. Kente -Ag.DR For the 1 st Applicant: - Absent. For the 2nd Applicant: - Absent. For Respondent: Present in person. I Court: Ruling delivered to the respondent this 1st day of August, 2003. (Sgd) P. M. KENTE AG. DISTRICT REGISTRAR' I ARUSHA 1/8/2003 JHM/jn.