Mussa Mahola vs Charles Fasheni (PC Civil Appeal No. 166 of 1999) [2000] TZHC 258 (24 October 2000)

IN THE HIGH COUHT OF TANZANIA AT K11ANZA (PC) CIVIL APPEAL NO, 166 OF 1999 (From the decision of the District Court of Mwanza District at Nwariza in Civil Appeal No. 12 of 1995. Original Buriegeji Primary Court Civil Case No, 10 of 1998. Before:M.M,Mang!ana, Es, DM.). MT.JSSA MAHOLA 00 00000000.00 0000 00 000 APLLANT VE1SUS CHAPLES FAS}IENI •0000000000 0000,000000 HESPONDENT JU D GM H N T This is: an appeal against a ruling of the lower court dismissing an application for leave to file an appeal out of time. The grounds of appeal as drawn by Counsel for the appellant are two, nsrnely that the lower court erred in law in holding that the appellant was not prevented by a sufficient cause from filing his appeal in time and that the lower court erred in law in holding that Exh,Ar?did not need to be witnessed by an independent witness. The appellant was the plinr2ftbc pmary court in which / he lost a claim for a piece of land from the respoidenL The respondent contended that he had bought the disputed piece of land from the appellant. The judgment of the primary coui't was delivered on 16/10/98. The appellant applied for a copy Of proceedings on an unspecified date. A copy of judgment, and presumably of the proceedings, were ready by 18/3/99. The appellant collected them- from the District Court in mid June, - 1999. But by that time the statutory period for appealing against the primary court decision had elapsed, hence the application to the district court for leave to appeal out of time. ) The District Court found that the appellant had not demonstrated requisite diligence to collect the copy of judgment soon after it was

• 2 ready for collection in earcn, 1999 butinstood..coliected it three months later 0 The court also held that the:re was no important ppit of law for discussion regarding the sufficieny or otherwse of exhibit Ak. 1 which was tendered at the tr.alQ He said that although Exh. 'A' was sufficient evidence of sale as claimed by the defendant at the trial, the trial court also considered and beliCved the evidence of SU2 who had witnessed the payment of the purchase price to the appellant. For those reasons the lower court held that sufficient reason had not been shown to justify the granting to the appellant leave to appeal out of time 0 .. Bfore me the appeliat has claimed that his advocate who argued• his application to the lower court did not really give to court the proper reasonsfo.r his faflure to appeal in time and that, infant, he did not agree with the reaCons g'i7en by his advocate who spoke in English, a language the appellant did not understand. Even after disowning what hi advocate said to the lower court, the appellant did not tell this court what more cogent reasons he had and which his. advocate fdiiéd to present to the lower court. The appellants advocate had told the lower court that the fai.Iure:. by the appellant to appeal in time was due to old age, a reasonthe respondent challenged and effectively disp±oved. I wouLd agreewith .•. the lower court that no sufficient cause had been shown for the lorg delay of three months to collect the copy of jud.guent from court after it was ready for collection. : The sole intended ground of appeal to heaguo.d if leave to appeal were granted was in the following words— . "That the Primary Court had erredhoth in law and fact by holding - thpt. exhibit 'A' by- the respondent was a conclusive proof, of the alleged sale hving taker plcc w thoot thOre being any ainature 01 arindependent • witness' 1;

3 • ' Of course, E. 'A', if believed, could provide .sfficiet"reason for the court to accept the iespondents c]aim that he bought the piece of land in dispute 0 Hoiiever, when thero is some doubt about the authenticity f Exh 0 'A', it woüld'bë prüdeii± tolooic for supporting evidence. In the case under di'cussion thefo wes supporting evidence ' /rom SU2," which the two lower courts believed. The appellant could not say why that witness should not have been believed. It follows, • therefore.,' that if leave to appeal had been granted, by the.,:District Court there would not have been 'any important point of law for consideration as claimed by the appellant. • This appeal has no merit and is dismissed. H J. A. MPOSO • .. JUDGE At Mwanza, • 24/10/20000. /