Azaram Mohamed Dadi vs Abilah Mfaume (Civil Appeal No. 1 of 2014) [2014] TZCA 2380 (3 December 2014)

IN THE COURT OF APPEAL OF TANZANIA , ATMTWARA CIVIL APPEAL NO. 1 OF 2014 (CORAM: BWANA, J.A., ORIYO, l.A. And KAIJAGE, J.A.) AZARAM MOHAMED DADI ...... ; ...•................................. APPELLANT VERSUS ABILAH MFAUME .................................................... .. RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Mtwara) (Mipawa, l.) dated the 21 st day of October, 2010 . in Land Appeal No. 46 of 2008 ........•. RULING OF THE COURT 2 nd & 3 rd December 2014 I KAIJAGE J.A.: This was supposed to be an appeal from a decision of the High Court dated 21 st November, 2010 in .. Land Appeal Case No. 46 of 2008. Going by the record, it app~ars that the appellant lodged his notice of appeal on 10 th December, 2013 after he had applied for and obtained an order extending time in which to lodge the notice out of the thirty (30) days period prescribed under rule 83(2) of the Court of Appeal Rules, 2009 (the Rules). The record further reveals that the appellant instituted the present purported appeal on 1/8/2014. Before us, the parties herein appeared in .Person, unrepresented. ' - 1

When the appeal was called on for hearing, the Court, suo motu, ' drew the attention of the parties to the patent fundamental defect besetting the appeal as instituted. We were of the view that the present appeal was instituted in violation of rule 90, (1) of the Rules. Being ' . laymen, the parties made no significant response to the legal point we raised. The institution of civil appeals is governed by rule 90 (1) of the Rules which provides, in part, thus:- 11 90(1) Subject to the provisions of Rule 128, an appeal shall be instituted by lodging in the appropriate registry, within sixty davs of the date when the notice of ~ppeal was lodged with:- (a) A memorandum of appeal in quintuplicate; (b) A record of appeal in quintuplicate; (c) . Se9urity for the cost$Ofthe appeal..." The appellant having limeously lodged· his notice of appeal on 10/12/2013, he should have instituted his appeal within sixty (60) days prescribed under rule 90(1) of the Rules. The institution of his appeal on 1/8/2014 clearly violated the Rule quoted hereinabove. for reasons which are not apparent to the Court, the appellant did not find it 2

. v necessary to apply, in terms bf rule 10 of the Rules, for extension of time in which to institute his intended appeal out of time. _ _ . _ In the light of the foregoing, we are satisfied that the present appeal is time barred and, therefore, incompetent. Consequently, we hereby strike it out. In view of the fact that the legal point which led to the disposal of t_his matter was raised by the Court, suo motu, we make no order as to costs. Each party shall bare his own costs. DATED at MTWARA this 3 rd day of December, 2014. SJ. BWANA JUSTICE OF APPEAL K.K. ORIYO JUSTICE OF APPEAL S.S. KAIJAGE JUSTICE OF APPEAL I certify that _this is a true copy of the original. P.~KYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 3