20161115 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA . DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 352 OF 2015 ZAINABU MUSSA NAMTUKA ..............................APPLICANT VERSUS ADAMU HEM ED MENG! (Administrator of the Estate of the late SAID HEMED MENGI) ..... ■ •• ■ ••••• ■ ••••••••••••••••••••••• ■• ■ •••••• RES PON DENT I •••••••••••••••••••••••••• RULING This is an application for an order of this court extending time in which to appeal. The application is made by way of Chamber Summons filed under Section 25 (1) (6) of the Magistrates Court Act [Cap. 11 R.E 2002] and Rule 3 of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, G.N 312 of 1964. The chamber summons is supported by the Affidavit of ZAINABU MUSSA NAMTUKA (Applicant). In the affidavit the deponent avers shortly that, she had lost an application for extension of time in which to appeal lodged in Temeke District Court by the ruling of the court delivered on 24/2/2015. On 27/2/2015 she wrote to the court requesting for a copy of the ruling which was supplied to him on 2/4/2015. Due to health problems she could not promptly appeal and it is until she recently became stable to proceed with the appeal. Her delay in appealing has not been caused by negligence on her part but by reasons beyond her control as a human being. The deponent also avers in the affidavit that the intended appeal has overwhelming chance of success and if the application is not granted she will suffer irreparable loss. On the other hand ADAM HEMED MENGI (Respondent) filed a counter Affidavit and when the matter came for hearing before me the parties appeared in person. When 1 was invited to argue the application, the applicant contended that sometime in 2015 the District Court at Temeke dismissed her application for extension of time in which to appeal against the decision of the Primary Court at Temeke. She intended to appeal to this court against the decision but fell sick on 27/5/2015 and submitted herself to Temeke Hospital for treatment. On the same month she was summoned to Temeke Primary Court. It is when she approached the LASWOT (Legal Assistance and Social Economic Welfare Organization of Tanzania). The later drafted this application. She therefore could not timely file the appeal for she was precluded by sickness. She prays the court to grant leave to appeal out of time as sought. On the other hand the respondent objects to the application. He contended that -- the suborainate court informed the parties of their right -of appeal If were aggrieved by° the ruling of the court. There was no appeal preferred by the parties within the prescribed period. He therefore went back to the trial court so that the matter before it proceeds and the applicant was served with a notice. When the applicant appeared in the trial court she asked for adjournment of the matter which prayer was granted. It is when she prepared this application. The Respondent submitted that in this matter the Applicant has not shown a reasonable cause why her prayer should be granted. He added that the contested decision was given in February, 2015 and the applicant fell sick in May, 2015. The sickness is evidently not the ground for this application. He prays the court that it dismisses the application. That is all from the parties. From the records and submissions made to the court by the parties it is clear that the Applicant's application for extension of time in which to appeal against the decision of Temeke Primary court lodged in the District Court of Temeke was dismissed on 24/2/2015. The Applicant is dissatisfied by the decision of the District court and intends to appeal to this court challenging it. Having been caught by time limitation the applicant applies for leave of this court that he files the appeal out of time. The applicant tries to persuade the court to grant the application showing 2 e 'I that she could not appeal within time as she was not timely supplied with the copy of the ruling contested and that immediately after obtaining the copy she fell sick. In an application for extension of time within which to act, the application must establish to the court that there was a sufficient cause for delay. The issue to be decided is whether the applicant has a sufficient cause in her application. As shown, the applicant contends that she was not timely supplied with the copy of the ruling contested for her to appeal. The intended appeal is against the decision of a district court given under its appellate jurisdiction. This is governed by the provisions of Section 25 of the Magistrates Courts Act [Cap. 11 R.E 2002]. According to the Section any party to civil proceedings aggrieved by the decision or order of a district court in the exercise of its appellate or revisional jurisdiction may within thirty days after the date of the decision or order appeal therefrom to this court. The appeal to this court shall be by way of petition and shall be filed in the district court from which the decision or order in respect of which the appeal is brought. The district court, upon receipt of a petition shall, without any delay dispatch it together with the record of the proceedings in the Primary court and district court to the High Court. This procedure does not necessitate that the party has to have a copy of the order of decision appealed against for him on her to appeal. As such in an application for extension of time in which to appeal to the High Court from the decision of a district court in the exercise of its appellate or revisional jurisdiction, a plea that the applicant was delayed to be supplied with a copy of the decision or order a subject of the appeal does not constitute a sufficient cause. As to the applicant's health ii is alleged that the applicant did on 27/5/2015 fall sick and therefore submitted herself to Temeke Hospital. According to the Out Patient Card (Annexture M-4 to the Affidavit) the applicant was attended in the Hospital on 27/3/2015. It was a one day event and it has not been shown that from the sickness she could not perform her duties. I will agree with the Respondent therefore that the sickness alleged does not constitute a ground for granting this application. 3 •• All in all the applicant has failed to establish a sufficient cause in this application for extension of time in which to appeal. As such, I find no merit in it. The same is accordingly dismissed. aAs this matter was instituted by LASWOT gratis, no order as to costs is made. Dated at Dar es Salaam this 15th of November, 2016 E. J. Mkasimongwa JUDGE 15/11/2016 4 Date: 15/11/2016 Coram: Mkasimongwa, J For the Applicant: Present For the Respondent: Absent C.C. Mr. Mabugo: Court: Ruling delivered in chambers his 15th day of November, 2016 In the presence of the applicant and in the absence of the respondent. E.~ JUDGE 15/11/2016 5