Ibrahim Ramadhani vs Melembuki Kitasho (Misc. Civil Application No. 160 of 1999) [2000] TZHC 599 (10 November 2000)

• I .,, / f °"',,./· IN THE HIGH COURT OF TANZANIA AT ARUSHA MISC. CIVIL APPLICATION NO. 160 OF 1999 . ,clt Civi~ 4ppeal No. 73 of .198 -.Oriinal Civ. Case No. 169/27) IBRAHIM RAMADHANI ••o • 0 • • • • • ••

• Versus - M.EJ.tEMBUKI_){ITASHO ,• •• _ ;•.•-• - 1 ., RU L.I NG flSOFFE a J. e 1 0 o ••• ••o .. - n -...--c , ... 0 .,,n·1,,,1\TT .:.'U,!.l.;,-t.. h .i:!J.1.'i In the Primary Court at Arusha, the applicant lost in a claim of a two acre piece of land. He appealed to the District Court of Arusha and lost. In the concurrent findi- ngs of fact by the two lower courts the respondent is the lawful owner of the disputed plot on account of the factual a,nd documentary evidence that was tendered. The appellant is still disatisfied and hence wishes to appeal to this court"· He- is, however~ conseioμs and mindful of tbie fact , · that he is late in appealing_ and. hence this. applic,ation for enlargement of time to· appea1 8 · In both the affidavit .·in support of the Chamber Ap:pli- cation and in the written.submission filed·by the applicant it will be apparent-that the applicant's mairi ground for the failure to appeal within time is that he· is an old., ill-~ terate and sick mano In ot.b.e;,c wo.r4,s., the applicant wishes to

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impss upon the court that in the li-gt of the above condi- tions hi could not easily appreciate the need for .appealing within time. He has atts.c hed a medical report to substanti- r : ,. .... ,... at.e his a).legation that he is ·an old artd sick mano The medical . . . . report is fror,n one 11 Upare Chari table Medical ;i Centre and is dated }/5/99. On the Otfter hand, the respndept has .vehemently oppo- sed the appliqation t.hropgh the·-·services of l"'ir .. D' Souza, · learned. advo,ate•• In f?POSing the application, the res?ondent di lJiOt only ile a CQl.mter Affidavit but went on to file. ·a , Counter Affidavit o(.one Henri Paul. The latter deponed that ~ . !:he not only li,ves close.to the applicant out he was sure that uring the perio,d 22nd June 1999 (the date bf delivery of the District Cour1; judgment) and 11th November 1999 he saw the a.pplicant oif'"·~~ve,ral occasions going on with his ·affairs as usualo 1.fhis·wll.s 9 no doubt put i11 order to show that the applicant 1tlas :q9t, after all, all that sick or old to fai, to appeal within timeo_ · I propose to dispose of the application as follows:- . ? _;'irst, .as corretly pointed out by .M.1.: .. :..:o-.:.. ___ , ~~:·" o.pplica- ·. :' tion ought to b.ave ben brought under Se25(1) (b) of The ' ,. . --------·-•T!1'- -, .. ,_ -··- Maistratr~• C;!\J&is Ac-W 1 128Lt,_ _ I appreciate that the appli- .carit haa aid that he it an.illiterate person who might not have· beeA ·ia a position. to, comprehend o., ._ apr~ 0 ~iate the law . ' .. /, O l7 0 0 • G O /3

'.4 properly but I take note of the facf that he has said some- 1, " .where that he always sought the assistce of people he thought were knowlegeable in law. I.f so, t;Q.ere is no reaso_n why those / same people shtmJ.d not hav.e advised: him properly on· the pro- . • ri . visions governing a matter -of this ,natureo. Second, .the grant or otherwise. of an application of this na.ture is at the dicretien of the Court.' Hence an applicant has the duty of impressing upon the court that the disretion should , be exercised in his/her favouro In. this application, the app- lica,.t is seeking this Court's indulgence to have the discretion exrised in his favour allegedly because he was s) .. ck, he. is ilLiterat~ et~. etc. In my j~dgmentt the applicant might or ,', ' migbt not have been sick at some point in tineo ,· . Howeverj in so ar as this application i3 concerned this point is suspect in that (a) the medical chit is 'a general statem6lllt of the . ' "applicant's condition (b) there is nothing in it to show whether there was any treatment given to:,:\the applica.."1.t between 22/6/99 and 11th November 1999 (when he filed the application), and (c) in any case, the report dated 3/5/99 was written everi before ' . tqa date of the District Court jdgment (22/6/99) and hence it w}ll have rio relevance for P,urposes· of this i:lPPlicationo The I . . i :report :would hc1ve, probably-, been relevant if it had been given after the decision·of the District Courto ' 'l1birq, I .agree wi ~h Mro D' Souzai' hat it was upon the applicant to support his application by "a sufficient statement of the nature of the judgment and his reasons for deserving ' ' to appeal against it to enable the court to deter- whether or not a refusal of the application would ·',1 • appear to ·cause iiljustice" ~ BoDoShah Vo DoJamnadas ti• I ~ 1959 FA 823 EoAoCA,. ooooo/4

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• In the instant application the applicant has not discharged the above burden. Indeed, as earlier.stated,. he lost in .. both Courts and he has not said anything much to suge-~s,t that the concurrent decisions of the two lower Courts were faulty. I· appreciate that somewhere in his writ-ten submission he has said that the decision 0Jf the trial Primary Court was faulty in so fax 'as the land invo:;I. ved was registered,. According to. him, thereforeo the trial Primary Court :l.acked jurisdiction
• a point which, according to him again., maht that the trial was a nullityo Ag.ain., I ag:r:ee with·Mr· D 1 Souza that this poifit is neither here nor there a The ··s'{J.if cit the trial . . Primary Court was filed by himo Yet ii' -he ·-knew that the la· ' was registerkd why did he 'ril~ it with .t.he aid Court .. Fourth, he ha made attempts at discrediting the respective · counter affidavits .. In my view though, he has not gone far enough to dislodge their contents .. At best he has argued .~ ... . . . generally against the' counter affidavits vri thout much concrete substance .. . . ,·~· . : . He has not specific·ally denied? for instance .j that

at the material time he was allegedly sen going a.round colle-- cting rent from tenants _He could t~a\re 'j t the very least 'j said who---Was actually collecting the rents on his behalf from ' 22/6/99 · to 11/11/99 if at all he was sicko That he has not'. done - to suggest that tb.e respondent's allegation that he was fit and well at the time and hence his ability·to ,collect the rents cannot be ruled out easily .. In substance, therefore I 1 satisfied that the applicant has not been able to move this dmirt exercise the discretio·n in his favour The application +s accqrdingly dismissed with coots. Jo Ho MSOFlrn JUDGE 10/11/2000 Delivered this 10th day of November 2000 in the presence of the applicant and Vir., D 1 Souza for the respondent .. I hereby certify this to be copy of pa· .. .Ori5inal · · ··+:s·n . ,.· •·.•'\ .. DISTRICT . ROOIS':L1RAR a true J ... H MSOFFE 12000 -. ARUBF,.L