Dede Nyakurumi vs Rashid Matiku (PC Civil Appeal No. 104 of 1999) [2000] TZHC 443 (2 May 2000)

0 .-.·· ., .... ,,. IN THE HIGH COURT OF Ti' .. NZANIA. ... AT MJA-NZJl.. . ----

• APPELLATE JURI3DICTlON (Mwanza Re.giqry) : ~ ··: {!· .. (I?C). CIVE., -_APPEJ\I., NOo 104 OF °1999 -- • . • • • .: • • • • •• - • ' • - • ; t • ' (From the decisioh· f- the District ,Cotll'tr:of Tarime District at Tariine in civil Application no. 3 of 1999 ---B_fOJ:'e E.P. Magul.a; ESq., District Magistrate and Shira.ti primary court Civil= case· No .. 327. of 1994) ·:• . . . DEDE'. INYAKtmtin L, " 0 i 6 0 b • ~ • 0 i, • 0 0 ••• 0 ~ •• 0 0 i> ;o ,i Ii a •• 0 AP PELLA Nr R!'\SHID ViATIKO •• oo •••••••••••••• • -. ,; • •··• •. "'•. •,•·. •.. RESPONDENT JUDGEMENT MREMA; JD .( ., tr" •• · ,; The .appellant Dede Nyankurumu was the defendant in d.vil Case - NQ· ·. '·. . . . . - . . 327/94 ,at Shirati Primary court in Tarime District. He was sued ·byt -the·- . ' . . . . . . :_. - ·' ." . . , . . }'.E;PPp.ent Rah;i.i Matiku for re·covery of a ·parcel· of shamba which the· . - . . .. . . . . ,., ._·; -- ·. respondent c;timed was taken away from his lawful possesio'n by. tii.e : ' appellant in 1978 without colour of right. .. ·.•, ., . ·.. . The primary.court unanimously gav. judgement in favour of the respondent 0 . ' · .. ··-'·rt.- is ,apparent from the procdings in the primary and district .. courts. that· the appella.t did not appeal f:com .the decision of the Prmary Court immediately. This latter statement is. backed by the appellant•s 'affidavit which she filed in the district court, apparently, on 31/1/1996 JI • : • • • • • . in.support of his application purporting to seek eave to appeal out of ,_. ... time again,st the decision of the primary court9 Although the ju:dgement .. . . . . ·.. ·. . . - : . ', of, the dist:rict c?urt does not indicate the date ·when judgement·,wa:s-_ ·pronounced it is, ho;>1ever, my surmise ·that the same ws p.ronouncd on f .- . / . . . lo - ~ • ~ •• , 2,8/2/95 follovJing the previous order (before· judgement)· dated' 14j2/9.5, . . . .... . . . . . . . . ; . . . . . . . . . . . , 111:i,h, :3 to _the fqll )Wng effect ( quoting· th- same ipsi ·si): . . : . .'. . . , ; . . ~ . . ~ _., . . . .- . . '-'lfah~¥1a: :i?~uri, : ha.di 28/2/~~ kusoma. hukumu baa·a.a· ya mw6ngozo ·kwa wazee:

· .,1:.-·t-."- 2 ai_ Kwamba, nilichelewa kuomba rufaa kwa muda umi:6takiwa. ki-?a ·sa"babu hilif'.iwa na mjukuu wangu wa umri ntj.cJ.ka 5 (mitano) mnamo April, 1995 baada ya k-nalizi matanga ya marehemu _ ... ,···,.,•.- . na kupata nafi .. ii.'ya ku6\nba 1 rufaa nikapata Hati ya kuni.hariti;ha iii ri.itoke katika sehemu eneo hilo linalogombaniwa •. :. :-·. 2. · Ki1a1riba/vil'e_ vile ilipofika mna::no July 1995 .. ·•·. i.: :.. .. ..: r. .L.C t';· : , , ·:- : .. : .. ,- :· ·- •. : •..... :. nik:afiwa:tena ,ri? mdogi:i wangri aitwa',1! Njiga Mgabo . . . '. ·- ; : 'I.:.:. . . ' ::, ' " . . ·- ;. ·. •·-· na 'ilipofika ·October,: 1995 ·nili.shtiwa kwa kosa la kutoharna katika ardhi hiyo na nikafungwa . jela 'miezf "(6) ria b;ra ~/ikat:t huh\1ime1\fo.1iza_: k:ifungo"., i,-,,: ·,::"·, The application was outrightly dismissed by the District Court (E 0 P 0 Magula, DM) on the ground that the a:pp;Llant did not show sufficient and good cuse to ... -:..<.:."--- · ... asLwhy he was unable to file his appeal from February, 1995 to 31/l/1996q According to the appellate district magistrate the appellant tl:icf-ri6t-'- '. • ... Z: furnish any good cause a.s wby he never' lodged 'his appear between l4/2/96 •}I ·: -J "-·· and' April, l995 before his alleged graridisoh d:ied., Aie;airi- he did·'n6t conceive ,·•.•.a··=• any good cause that pevented th appeilan:t to file the said appeal ·after the death oi'his grand child beteen.April, ·i995 and ·July; 1995 whe.n in .::; '. i .- . the latter month b.e lost his you!l[ser brothero And when the appellant got imprisoned in October, 1995,' acL)rd.ing to I1agistrate t-1:agula, ·he:. (appellant) did not explain or show cause 1.-1hy between July, 1995 and 0ctober, l995 he ·• took no action to lodge his intended appeal., I have also read the appellant• s grouds of a•ppeal in this court. Also I had the advantage of hearing both the parties during the hearing of this appeal.; In substance, the a.ppellan~ is still maintaining that he was unable to file his· ·appeal n time because he was involved in. a criminal case, allegedly hatched out by the respondent• s wife, te result of,.wbich was conviction arid ul timci.tely itnpri.sorunent for 'six months •. •Th ,his·, submission, but not in: his grounds of appeal,'·· the appellant cli:imed that he'app·ealed on .time"fhi6tign·t:he:prison authority at Tarime but as it turned '-9μt M~ ....

.. . J 3 ( 1 ·:memor,and'ijI!l' of appea:1-"got· mislacd somewhere~ He then had to seek leave was to_apec!-:l•'·OUt. of time in 1 the.district cou±t but his prayer/turned down. " .. ·: . ·-- : . . . Iri"'hls''writte reply to the memorandum of appeal the respondedr t· _..,t.~ . • i' I• • • ; ·1 ·. '. • • . • • totally 'disagreed with the appellant for the following reasons: · first, that" the ppli;nt failed. to give t:he reasons 1 .-.1hy the ·death f his . • • •• ' ' • 1 ·'· . r grandfather in April, 1995 and his young brother in.July, 1995 caused · liirn ·(apri°ellant) to delay in appealing against the decision which h , . . . has been very much bitter abouto .' i· Second, the appellant failed to substantiate his poverty. According to the respondent, the appellant is not poor because he has five children, all are:working, as some of ·1. them are engaged· in mining activities and others are fish mongers. Tt they could therefore pay,on his behalf,the court fees and other expenses necessary for filing the appeal. Third, that the intenied appeal, besides :, .. being hopeiessly out of time, has no any chance of.sccess. This is '·· because. the land in dispute belongs to the respondentt s anqestors~ hence ., a 113-J•'•1and of Kami te.-o And lastly that the appellant• s delay in filing his appeal was :.'riorciiria.te. and ··without. ood cause and therefore its ... circumstances'. I am in full agreement with the respondent. The appellantts imprisonment in October, 1995 couibd not be used as a scape goat for delaying to file hi_s_;-appeal. Infact he has lied to the cour t:ha-t -he-• .. · • · filed his appeal on time through the Tarime prison authority, but t_h.q~ the appeal was losto ~:-.He is a liar in .:the first class. because· this statement was never tj.eponed to 'his affidavit in the District Court, , . ' and even in his memorandum of appeal to this courtQ And even if ·it could be admitted that. he 9--id lodge his appeal through the prison authority still the position would not change. This is because the appeal was .. : already timo:i barre·d· ·because that was in October, 1995, and judgement ♦ was given in February, 1995. Under the Primacy court Rules, 1964 ( Civil)

.. Jlie time_ pr_ovided for- appeal to tJ:1e DiEftrict co:ur.\ ,is 30 days •.. )fur'l:;her, he never bothered to take the affidavit of the prison officer i/c, or prion officer concerned, to confirm the appellant's assertiono As regads the appellant• s assertion that he was unable to file hi,s appeal on time beca.use of the deaths of l'iis relatf ves, in _my view, as.summing that the assertion is· true, there is no any reason shown why he did not file his appeal during the whole month of March, 1995 before his grand- child died. And if it were true that the grandchild died in April, 1995, but which I 8.m still doubtful, wha~ then happened in the whole month of May and June, 1995 before the second death in July, 1995? ;,: : :. --:N• • Also assumming that the appellant was bereaved in July, 1995, on a date he did not even say, why the appeal was not even filed between August and otober, 1995 before he was sentenced to imprisonrnent? All these questions remain unanswered and the burden to clear any doubt, on the 1?alanc of probabilities, is on the person rna.1<.ing the assertions, who is the appellant. rn the-.light of the foregoing reasons I am satisfied, and, indeed ··an I agree with the respondent that the appellant's assertions came slafter i thought 0 And fb.r those reasons I dismiss the appeal forthwith, with costs to the respondent. AT M\4ANZA: . ! 1/- ... .: ,. ,, ..... A. - :c{ . MR8lll'. 2/5/2000 JUDGE Delivered. a·t Mwanza, 7 ·. 'before the appellad and respondent, both in persons. Right of appeal explained. \ '~AJ- .. ~- ~~ A. C. MRJ..:MA ., . . ' 2/5/2000