20010116 TZHC Mwanza

JL- I I ~ l , - le- -S . ,- ~ ' IN THE HI~H COURT OF TANZANIA AT MWANZt\ APPELLI\TE ;TURISDICTION (Mwanz.a: Registry) HIGH COURT CIVIL APPEAL I't)~ 47 OF . 19/)6 (From the de cis:Lon: of' Resident Mag1istrl~ te . court of Mu.scima. in.RM civil case uoi. .45 of 1994 -.Befori3 R. I. Riita.t:f.ntsibwh.; :ESq1; Resident Magistrate) . . .. , , .1 l " WARIOPA N'lAKDitm± i~•k~~~,.~~~o~.~~o&i~o,~,oii,~, APPElLIANr VERSUS: MORRIS MASEKE MUGUSHJI 0°0 . . O e O O e U e e e O • e o •• e . . o e e e e RESPONDENT RULING MREMA., JUDGE The appellant in this Civil. Appeal No. 47/1996 is WARIOPA NYAKIMORI and the Respondent is MORRIS MASEKE MUGUSHI. The appellant is represent by Mr. Matata, learned advocate, and the respondent appears in person. The appeal is seeking to reverse the decision of the !{Mte Court Musana (Ruta., RM) in respect of Civil case Noo45 of 1994.· But the appeal has not been smooth on the side of the appellant. The respondent has raised a preliminary objection, orally, to the fact tbat the appellantts appeal is hopelessly out of time and, therefore, this court has no legal mandate to henr and adjudicate the matter which is materially stale,according to l.aw. This objection was raised on 13/4/2000 when the appeal was duly set down for hearing before me. It is common ground, and I agree with the respondent, that the judgement of the District court whose decision is sought to be reversed or set aside by this court was delivered· by Ruta, esquare, learned Resident Magistrate on the 18th of August, 1995; and the same was certified on the 8th of September, 1995. It is also evidently clear from the proceedings that this court (Sekule, J.) had to engage itself J .i I -1 i J r •I ,I )t .. ;I ._,J_. . ...,.,... -r-•,~--,.··::•·• .. a:·- ·.;_,·.: ... ~:-::\[ i 2 ----- --------.. ___ _1-_~ the hearing of Misc.· civil Application No. 21 of 1995 filed by the appellant (Appiicant-)-for._ .?.nlargement -· - ... ' of time to file his appeal out of _ time. Reluctantly, though, the court allo~~c:f ·the---applic.a.tfon on the basis of the learned judget s obserfatior1t which is as follows( n .... I agree with th;;, respondent on this :, issue~ The applicantt s contention that ii . · it is illness which delayed him is suspect. )' Be that as it may1 since as far as the present application is concerned, I am satisfied that it is his earlier application whi_ch was :. ',: : i misconce:t'Ved which ied to tbs deiay, I would a.liow the app1:ic& H.011 ~ h • it That order was made on 25/4/96 in the presence of both the parties. But as it turned out, the appellant, though represented, had the appeal filed on 10/9/1996, thus it took him four months and 16 days. !tts this the apparent length of time L. respondent is challenging·- that the period is inherently out of time because the court did not intend that the having · appellantl. been allmved to file his appeal out of time should take such a longer period than even the one of 90 days stipulated by law~: .. · He further lamented that it would be injustice to him if the appellant· would be allowed to prosecute his 0 st_ale11 appeal which the latter apparently filed upon being actuated to do so by his letter of complaint . to the District Registrar... That the delay is not supported with any good or sufficient cause or ground and especially on the fact that the appellant was legally represented by advocate who knew or ought to know on the law of Limitation. The appellant having defaulted previo~ly to file his appeal within time, the respondent argued, ought to have bean cauticus and diligent to honour.the.time extended to him to file his appeal, though out of time 1 . t:imeously and/or vrithcut a minimum delay. Re is therefore of the view that the appellant•s appeal that was filed :after the statutory period of 90 days had elapsed (i.e·•. afte!' 136 days) is hopelessly time barred and, . hence, incanpetent before this court.' .He /' ·':.•,·'-' .. :· Ill . --··-.tri··. if ii .-..-:,. ··.· r -· ,J ,.-·· ~, ·-· .t-.·•,. i 11 ,j .. ,., ··::j::~· ·.;. '.'1.i'' 'J:f.l.T( :c ··:_i_t·-••.;,,o•-.." 3 ... prays the court to strike/ out the appeal ori the accouht of incompetency• Mr. Matata, iea.r'hed advbcatej sw{ftiy iihd it'!!patientiy !'eact~d to With - -· the respondent• s objection. [ • respedtf I do not kgree with hiin that he filed Memorandum of appeal on 30/8/96. The document containing the gtouhds of appeal very clearly shows t}i.,-:1t it was presented for filing on _the 10th of September, 1996 and this statement is augemented by the endorsement signature of the Co'Ul.'!tts Registry Officer, But again, with respect to i1 · the learned advocate, even if it were true that the appeal was filed on 30/8/96, but a fact which is not true, it would mean that the appeal was filed (fran the date of the Ruling) after 125 days. The Law of Limitation governing proceedings instituted under the Rules provided in the civil Procedure Code, 1966, and in relation to appeals is never ambigous. In instances where the period of Limitation is not otherwise provided for by arry written law, such as in the present case, the prescribed time limit is ninenty days. According to advocate Matata, the Order of this court (Sekule,J) did not specify the period within which the appellant was to tfile his appeal; or rather that the learned Judge did not limit him as when the appeal should be filed. I respectfully disagree with him(Mr. Mata.ta). In my view, the Judge was not bound to inform the appellant (applicant) as when he should file his appeal. EVen if the appellant was hot canvassing his appeal with the aid of his advocate it was expected of him that after he had defaulted to appeal within the statutory prescribed period of 90 days for the first time, he must have therefore had cognisance of the fact that the period of timitation accorded to him in tbis mntter was not more than ninenty _ days. And to make it even more worse than ever he was enjoying the legal services of his legal expert - Mr. Mntata. Mr.Matata also claimed that he W!l:S late to file the appeal because the appellant• s proceedings or file were with another advocate Mr. Mackunja who had advocated for the appellant in the Jower court and he is residing · in Dar-es-Salaam. I find this statement roseless becnuse the appellant .◄'·. ,. ,:. .. - ·c: JI .i' ' \.· .. i,;, ,l .) ' ... Lt ... must have been in possession of the relevant documents and that was why he sticcessfulli obt~ined leave to fil~ hi1? appeal as :way- back in.'April, 1996.'. ~/ ;~uld-:is~ -!lll~e ob;airted s!hlii;·- c;~le~ f;brl1 •· r \;, , !_. ., i _ (: .. .• •.. ,. ..,... . .: t~i eowt' ·bttt th~fe is no erid~n.ce showing ., that·-:•.•··he ijver ntt~mpte:d ... to get one~; '.'In my ::judgement -: '· ± o_ .. : --~ ~ satisfied that the _appeliantts advocate was negligent or inacti~e to file the appeal within reasonable time after lsave was granted oh 25/4/1996. _Th~ learned advocate ought to have taken cognisance of the, fa.ct that the -~:t: .: ;.-~~- ·:· . -~ ,J:·t .•:. respondent had the •jud.gerti~nt of the district court in his hand qut.whieh ,· .. \;. ·: ':' • he could not execute -'be{iuse of the appellant• s purported intention to appeal. He delayed to appeal and the court exercis~W its discr~t-i~n to ' extend the t:ime for him to appeal J::11.tt he abused that :;i~dul:~~~6~ ext~nded to him by repeating the previous mistake_-· e> I am aware of the learned obse~vati;n:s by' this court in a number of cases that the Rules of court do""·-~ot in actual fact determine the real :_c,,r: ·-: '.', issues in controversy between the parties; ~r ra'theJ:' they ,do not determine the substantive rights under litigations. But, they are however very important and necessary to enable the courts . make such orders as may be necessary for the ends -of justice, or to prevent abuse of the process of the courts. I-:a --the instant matter I am satisfied from the conduct of -the appellant-~nd ¢r his advocate that there was no seriousness in processincr: the purported appeal and such conduct, in my inclined view, would tend to amounting to abuse of the process of the court - especially on the fact that the appellant had different lame execuses for not filing the appeal within 90 days after the district court• s judgement was delivered on 18/8/1995 in the presence of the appellant and the respondent, and certified copy of judgement apparently made available to bim on 8/9/95. rt is on the foregoing reasons I am inclined to agreeing with the respondent that the present appeal is time barred and should be struck out, as I hereby do. And it• s so struck out because the appellant has ........ - 5 ..... : .. ,....failed td:~how ·go;·d ·bi-· suffic'ierit reason fij;- th~fdelay ·to -file .. the'appeaJ., . .•. • ·;_ : ::: ~- r z. i·• ..... ·, i•· • • . ,. . . even within ··90--da.ys'..after tJie 'Ruling! of'\this-~~0J1rt ,dated~ 25/¾/1996. The ·: ! _. ,• :,-; (,:. \~.µ.' ' '1) ,• : .. ,,,:._J· A"•. -. t. ·. MREMi - ,. . ::•;; 'JOliGE hr;:~ ·1(: .t.::::v;; :_•.,Morr.is.Mi:).sek~ MU!NPhi to receive Ruling. ·-::.;..._ . .. . . ·, ~· :: . .. .: ,.:·:(. :·:) :.:. :J .i: _.;, ;;: •.. . ~ :'. ' >n·,,·.: ,,The applicant i.e:i .ap-;3ent •. - ,. •·,: '!· ... ...:, ... 3·,,.' • .... -; . ,. ' : :. . c. ,.'. MREMA. ·•.: . . JUDGE .1: 1;6/01/2001. ,··.- .-.: ' ' ...... - , ·:,• ···"·· ► .•(.·•.: ,.