hilson ndetaramo minja vs john godson ngowi 2005 tzhc 277 1 november 2005

'"IN THE HIGH COURT OF TANZANIA "^MfesiEC--- — ..... ..... MISC. CIVIL AFPLi NO.- 51 OF 2002 -g CAEISJNG FROM (PC) CIVIL'APPALL NQl3^ OF 2001; OF'THE" '• ■V HIGH COURT MOSHI)- • ,(CIVIL APPEAL NO,? OF 2001OF THE DISTRICT COURT OF MOSHI) • ‘ r (ORG. CIVIL CASE NO." 36’ OF 2000 MWIKA:PlVCOURT WILSON NDETARAMO MINJA "APPLICANT '. ’ ; VERSUS . , ■ JOHN .GODSON NGOWI ..... RESPONDENT ’• ' r jRJJ L_I n^g :■ . .j u n d u , J. ■ :v'-’ In'the aj^lication^before' this court, the Applicant, one Wilson Nde'taranio Minja, is apply in |pr£axi--su certificate of point of law and for .that purpose, for leave to appeal'to the Court of Appeal of Tanzania * from th6 decision of this court in (PC) Civil Appeal No* of 2001, To this end, the Applicant has filed Chamber Summons supported by his affidavit* He is advocated by Mr. Akaro, learned counsel. In para of his affidavit, the Applicant contends that in the intended appeal to the Court of Appeal of Tanzania, he will raise points of law, interalia that the.learned High Court Judge in (PC). Civil Appeal No. Jk of 2001 erred in law in not holding that the Respondents claim was time barred, an aspect of which according to him was so. obvious on the faqe of the record. The Respondent is a layman and sis unrepresented* In response to the affidavit of the Applicant he filed what he called /‘Affidavit of Respondent.,f However, my proper reading of the said document shows actually the Respondent meant a i;Counter-Affidavit,,:which I hereby so treat. My understanding of para 3 of the said Counter-affidavit1- is that the Respondent contends that all the courts below and this court had considered the time bar point and..declared the Respondent the winner or the lawful owner of the suitlandi. -'In Reply to Court-Affidavit, the Applicant, in para A thereof'contends in reply that the District Court did not at.all address itself to the issue of time bar while the learned' High Court Judge who heard the second appeal' had misdirected herself as to when calculation of pe d of limitation should start* Therefore, the Applicant, in para 5 c he.. said Reply to Coui>ter»-A££icUv,it. contends- that the intended app^aJL 1 3r«iae a Itjgal issue as far as the facts of the case were concerned tc whether period of limitation in the case of a minor should start tc n upon the minor attaining age of majority or upon euch minor ^tartin o claijn property in issue. In addition to the above named exchange in the affidavit, Counter­ affidavit and reply to court-affidavit, the parties by consent were ordered to make written submissions in arguing the application. In short the dispute between the parties concerns a piece of land* The Appellant contends to have bought the same on 29/5/1982 from one Elimwokozi •Mi^ui*. The .Respondent a e :fajp aJs the record of the lower court is concerned * contends to have inherited the same from’the said~151iTOWT^t*£i--Mtu±, who was his father# The Applicant's contention is that the Respondent instead of settling for his portion of land he had inherited from his late father, he also claimed a greater part of the land which the Applicant had bought from the late Elimwokozi Mtui. In his submission, the Applicant contends that the the dispute* which the Respondent instituted at the trial court was time barred b u t . the said court had totally disregarded the issue of time, bar by ;holding that the Respondent was and: minor and"-that although the Applicant at th.e District Court had specifically"complied against the trial court’s mis­ direction on the said issue, the said District Court in its decision did not at all torch on the said issue. He contends further that again the Applicant in his appeal before this court had complained in grounds 1 and 2 of the appeal on the said point but it avoided to address itself or ■ >y. ':l * to decide it. On the other hand, the Respondent, in his submission has not submitted m e a n in g f u l about the issue of time bar. as alleged by the Applicant. • , - Having perused carefully the record and having considered the submission of both parties I am satisfied that the issue of ..time- bar did arise in the lower court ajid invthis court in (PC) Civil Appeal N'o. jM of 2001. In my firm view, it deserves consideration by the Court of Appeal among others. ‘ It may be styled as follows: whether it is legally proper' for the decision of the High Court to be left to stand without the High Court or the first appellate court deciding on the Applicant’s consistent coraplaint of time bar. Therefore, I hereby certify that a point of law is involved in the Applicant ?s intended appeal to the Court of Appeal of Tanzania* Further, I ftereby £ra_nt leave to the Applicant to appeal to the Court of Appeal of Tanzania against the decision of this court in (PC) Civil Appeal No* 3*f of 2001. 'The Applicant shall have his costs* It is so Ordered. JUDGE, 1/11/2005 Right of Appeal explained F, A. Ro JUNDU, JUDGE, 1/11/2005 1/1 1 /2005 Coram: F. A* R. Jundu, 2J, For the Applicant: Present For the Respondent: Present CC: Kimario Court: Ruling delivered in the presence of the Applicant and in the ^.presence of the Respondent. JUDGE, 1/11/2005