zacharia nanyaro another vs zacharia zephania urio 2009 tzhc 283 4 may 2009

IN THE HIGH COURT OF TANZANIA AT ARUSHA. CIVIL APPEAL NO.50 OF 2004 (ARISING OUT OF A RULING OF DISTRICT COURT OF ARUSHA IN MISC. CIVIL APPLICATION N0.15 OF 2003 RELATING TO ORIGINAL USA RIVER PRIMARY COURT CIVIL CASE NOL45 OF 2001) 1. ZACHARIA NANYARO................................................... 1st APPELLANT 2. JOHN MOSES...............................................................2nd APPELLANT VERSUS ZACHARIA ZEPHANIA URIO........................................... RESPONDENT (APPEAL FROM THE DECISION OF DISTRICT COURT OF ARUSHA) (.S.S. KOMBA RM) Dated 3rd September, 2004 in Misc. Civil Appeal n o . 15/03 28th August, 2006 - 4th May, 2009 J UDGMENT OF THE COURT R. SHEIKH,J. This is an appeal against the decision of the arusha District Court in Misc. Civil Application no .15 of 2003. in Misc. civil Application No.15 of 2003, the appellants herein ZACHARIA NANYARO and JOHN MOSES had sough an order foe extension of time for filing an appeal from the decision of the usa River primary court in civil case No.45 of 2001. The aforesaid application for extension of time was dismissed on the ground that no sufficient cause had be advanced for granting the extension. l The court also held that the application could not be entertained for failure by the applicants to give notice of intention to appeal. The appellants are aggrieved with the dismissal of their application for extension of time, hence this appeal. The memorandum of Appeal filed by the appellants raises three grounds, to wit:- 1. The District court erred in law and in fact when it cited the date of Appellant's applying for proceedings and judgm ent of Usa River primary court in civil case No.45 of 2001 as 11/3/2003 instead of 13/1/2003. 2. The District Court erred in law and in fact when it held that the appellant’s letter applying for proceedings and judgm ent of the usa River Primary court in civil case No.45 of 2001 was different from a notice of intention to appeal as envisaged by the law. 3. The District Court erred in law and in fact in dismissing the application of the appellants on the ground that the appellants did not give first notice of their intention to appeal. The appeal is strongly resisted by the respondent. in his written submission in support of the appeal Mr. Mwalukio submitted that the District Court has erroneously stated in its ruling (at page 3) that the appellant had applied for a copy of the proceedings by a letter 11.3.2003, while in fact the letter was dated 13.1.2003. Mr. Mwaluko argued that due to this mistake the District court had wrongly concluded that the appellant's application for a copy of the proceedings and judgm ent was made on a date when they were already time-barred. Learned counsel further contended that the District Court had erred in finding that the letter submitted by the appellants was merely an application for a copy of the proceedings and judgment and that no notice to appeal was given by the appellants. Mr. Mwaluko assisted that sufficient cause had been advanced for the granting of the extension of time and that the dismissal of the application for extension was wrongly made. On the other hand the respondent has maintained that the decision of the District Court cannot be faulted. it is not disputed that the judgm ent of the primary court sought to be appealed from was delivered on 10/10/2003. The record discloses that by a letter dated 13/1/2003 the appellants had applied for a copy the proceedings and judgment. The rubber stamp of the District Court put on the aforesaid letter evidences that the letter was lodged in the court on 13/1/2003, two days after delivery of the judgment. The judgm ent was certified on 11/03/2003 by which time the 30 days period prescribed for filing an appeal from a decision of a primary had expired. (See section 20(3) of the magistrates’ Courts Act). This delay in obtaining a copy of the proceedings and judgment is sufficient reason and cause for extending time. A copy of the proceedings and a copy of the judgm ent are necessary for purposes of framing a sound memorandum of appeal. (See Mary Kimaro v. Khalfani Mohamed 1995 T.L.R. 202). As regards the issue of the notice of appeal, I have closesly examined the letter of application for copies of the proceedings and judgment. The letter clearly states that the appellants are dissatisfied with the decision of the primary court and that they intended to appeal to the District Court. This is a sufficient to constitute a notice of appeal. I cannot but agree with Mr. Mwaluko that there is no legal requirement for an intending appellant from a decision of a primary court to issue a separate letter of notice of intention to appeal. Such intention is normally expressed in a letter applying for a copy of the judgm ent and proceedings. The District court indeed erred in holding that no sufficient cause had been advanced for extending time. For the above reasons l find tnat all the three grounds of appeal have merit, in the event the appeal is allowed with costs. The dismissal of the application for extension of time is quashed and set aside. The appellants are accordingly granted 21 days extension of time in which to lodge their intended appeal to run from the date of the delivery of this judgment. Order accordingly. Sdg: R. SHEIKH JUDGE 29/1/2009 Date:- 4/05/2009 Coram:- F.S.k. Mutungi Dr. Appellant:- 1st appellant present, 2nd absent For the appellant:- Respondent For respondent:- absent B/C:- Priscila Order:- Judgm ent 14/5/2009 Respondent be notified