Mungozi v Ntunzwe (Miscellaneous Civil Application No. 13 of 1998) [2000] TZHC 676 (22 August 2000)

BARENGA MUNGOZI v. MARYNTUNZWE 141 BARENGA MUNGOZI v. MARYNTUNZWE HIGH COURT OF TANZANIA ATTABORA (Mwita, J.) MISCELLANEOUS CIVIL APPLICATION No. 13 OF 1998 (From Kibondo District Court, Civil Appeal No. 9 of 1997, from original Kibondo Urban Primary Court, Civil Case No. 12 of 1997) Civil Practice and Procedure - Appeals - Appeals to the High Court — Extension of time to Appeal - Power of Resident Magistrate to extend time to appeal

• Section 25(6) of the Magistrates ’ Courts Act 1984. Civil Practice and Procedure - Appeals - Appeals to the High Court - Limitation of time to appeal - Period of thirty eight days passes from date of receipt of copy of judgment - Whether the court may extend time beyond the prescribed 30-day limit - Section 25(l)(a) of the Magistrates Court Act of

This was an application made under section 25 of the Magistrates ’ Courts Act 1984, for extension of time to lodge an appeal to the High Court. The applicant was furnished with a copy of the judgment 38 days back while the law required him to appeal within thirty days from receipt of a copy of the judgment appealed against, as per section 19(2) of the Law of Limitation Act 1971. Held: (i) In terms of section 25 of the Magistrate ’ s Court Act of 1984, the court has discretion to extend time to appeal, but the discretion cannot be exercised arbitrarly; (ii) In the present application it is just and equitable to relax the provisions of section 25 of the Magistrates ’ Courts Act 1984 and extend time. Application allowed Cases referred to:

1. Edward v. Edwards [1967] 2 All ER 1032

142 TANZANIA LAW REPORTS [2002] TLR. 2) Stephen Masato Wasira v. Joseph Sinde Warioba and Attorney General [1999] T.L.R. 334 Statutory provisions referred to: B 1. Law of Limitation Act 1971, section 19(2) 2. Magistrates ’ Courts Act 1984, section 25, 25(6), 25(1 )(a), (l)(b) RULING C (Delivered 22 August 2000) Mwita, J.: This is an application under section 25 of the Magistrate ’ s P Courts Act 1984, for extension of time in which to lodge an appeal to this Court. At the hearing of this application the applicant appeared and argued the application in person. Though duly served the respondent did E not appear. Consequently the application was heard ex-parte. Briefly the background to the matter is as follows: In 1997 Balenga Mungozi instituted a civil suit at Kibondo Urban Primary Court against Mary Ntunzwe claiming TZS. 418 000 being the value of 11 crates of beer, plus value of the 11 empty crates and interest. The Primary Court entered judgment in favour of Balenga Mungozi for TZS. 312 000. Both parties were dissatisfied with the Primary Court ’ s decision. They cross-appealed to the Kibondo District G Court. The District Court appears to have dismissed Balenga Mungozi ’ s cross appeal and to have partly allowed Mary Ntunzwe ’ s appeal. In the result the Primary Court ’ s decision was set aside and judgment entered in favour of Balenga Mungozi for TZS. 70 000 being the H value of ten empty crates. Being aggrieved by the District Court ’ s decision, Balenga Mungozi intends to appeal to this Court. The time within which to lodge his petition of appeal having expired, Balenga Mungozi has lodged this 1 application.

BARENGA MUNGOZI v. MARYNTUNZWE 143 Judgment against which it is intended to appeal was delivered a on 28 August 1997. In terms of section 25(l)(b) of the Magistrates Courts Act 1984 the applicant had thirty days since the date of the judgment in which to lodge his petition of appeal; provided that this Couft may extend the time for filing the appeal either before or b after such period of thirty days has expired. In his affidavit the applicant avers that he received copy of the judgment on 26 September 1997 but at the hearing of the application he alleged to have received copy of the judgment on 30 October c 1997. The record indicates that the applicant was furnished with the copy of judgment on 24 September 1997 and lodged this application on 3 November 1997, that is 38 days since the date he was supplied with a copy of the Judgment. © In terms of section 19(2) of the Law of Limitation Act 1971 in computing the period of limitation prescribed for an appeal the day on which the judgment complained of was delivered, and the period requisite for obtaining a copy of the decree or order appealed from K shall be excluded. Hence in the instant application time started to run on 24 September 1997 when the applicant received copy of the judgment. Under section 25 of the Magistrates Courts Act 1984, no conditions are imposed for the exercise of the court ’ s discretion to extend time within which to appeal. The section does not require good cause to be shown before this Court can exercise its discretion to extend the period of limitation. Nevertheless, that discretion can not be G exercised arbitrarily. In Edward v. Edwards (1), Sir Jocelyn Simon, at page 1034 said: So far as procedural delays are concerned, Parliament has left a discretion w in the courts to dispense with the time requirements in certain respects. That does not mean, however, that the rules are to be regarded as, so to speak, antique timepieces of an ornamental value but no chronometric significance, so that lip service only need be paid to them. On the contrary, in my view, the stipulations which Parliament has laid down or sanctioned

144 TANZANIA LAW REPORTS[2002]T.L.R. A- as to time are to be observed unless justice clearly indicates that they should be relaxed. The above extract was quoted with approval by Samatta, J. A. (as he then was) in Stephen Masato Wasira v. Joseph Sinde Warioba and B Attorney General (2). * The question now is, does justice require relaxation of the provisions of section 25 of the Magistrates Courts Act 1984, with regard to c limitation period. In this case perusal of the judgment complained of shows clearly that the learned District Court Magistrate took into consideration extraneous matters when coming to his decision; the delay is of only 8 days which cannot be said to be inordinate taking into account the fact that the applicant is a layman who is not represented by counsel. In my opinion, it is just and equitable to relax the stipulation as to time of limitation in the instant application. The applicant should lodge his petition of appeal within 14 days E of the date he is notified of this ruling. TRUST BANK TANZANIA LTD u LE-MARSH ENTERPRISES LTD AND OTHERS HIGH COURT OF TANZANIA AT DARES SALAAM (Nsekela, J.) COMMERCIAL CASE No. 4 OF 2000 Evidence - Bankers ' books - Meaning of bankers ' books - Whether of bankers ' books includes computer print outs - Sections 76, 77, 78 and 79 of the Evidence Act 1967.