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Judgment

c1A (rctXt IN THE HIGH COURT OF TANZANIA AT NBEYA

MISC. CIVIL APPLICATION NO, 14 OF 1997 • (From the decision of the District Court of Mbozi atVwawa in Civil Appeal No. 6 of 1997 Before L.S. Mtambo (Mrs) - Distra't Magistrate) TUWLANE SAHANI ......,......... kPLICANT Versus ••• NORMANNLOSITE OO . O ., 00000O . 000 . IESPONDENT RULING This is an application for leave to appeal to this court out of time from the decision of the district court of Mbozi district at Vwawa in Civil Appeal No. 6 of 1997. There is an affidavit sworn by the anplicant, Tuwelane .Sahani, in support of the application, and the application was argued before me by Mr. Mkumbej leanied advocate for the applicant, and resisted by Mr. Mbise, learned advocate for the respondent, Norman Ndosite. From the affidavit and learned àounsel's submissions these facts 6ame out. The district court's judgment was delivered on 53.97 in the presence of the parties, and rights of further appeal were explained0 On 7.3.97 the applicant got a typhoid attack and fell sick for about one month 1 hrid had to attend hospital for treatment. A hospital outpatient treatment card wasattached to the affidavit. Meanwhile he assigned his son the duty to pursue copies of proceedings and judgment in the district court. On 12.+.97 he received the copies of the district court's proceedings and judgment, and on 2.5.97 he lodged this application and attached the memorandum of the intended appeal. • •There are s with respect, two reasons on which this application must be allowed. Firstly, not occur to me that the appeal was already out of time at the time this application was lodged. Once the time taken to obtain the copies of the district's court proceedings arid.judgment is discounted as •...... /2
2- required by law, it becomes clear that an appeal, if intended, was still within the time prescribed under the law at the time this application was lodged. It is a settled principle that leave to appeal out of, time can be granted upon the court being satisfied that there were sufficient reasons for failure to appeal within time. This was, therefore, not relevant in the circumstances as explained. This application was thus a misconception on the part of the app cant. Second1, I have perused the lower courts 9 proceedings and judgments as well as the memoranduni of the intended appeal. The matter in dispute between the parties centred on the ownership of a shaniba. The intended appeal, in my view, gives rise to vital points of contention between the parties. The question of possible injustice, therefore, must take priority over the &rict adheranL to, or,enforcement of, the technical rules of procedure, and I am satisfied that it is meet and proper for this court to excercise its discretion in favour of the:. applicant and grant the application. I accordingly allow the application, and hereby grant leave to appeal out of time. Costs of this application toabide the results of the appeal. -' • "T."-. 1: '' (''.' ; ' '• •-, .,,•' Ne // B.P. MOSHI JUDGEO AT MBEYA, 5 November 1999.
For Applicant: !1r. Mkumbe, advocate.
For Respondent: Mr. Mbise, advocate.

Judgment

c1A (rctXt IN THE HIGH COURT OF TANZANIA AT NBEYA

MISC. CIVIL APPLICATION NO, 14 OF 1997 • (From the decision of the District Court of Mbozi atVwawa in Civil Appeal No. 6 of 1997 Before L.S. Mtambo (Mrs) - Distra't Magistrate) TUWLANE SAHANI ......,......... kPLICANT Versus ••• NORMANNLOSITE OO . O ., 00000O . 000 . IESPONDENT RULING This is an application for leave to appeal to this court out of time from the decision of the district court of Mbozi district at Vwawa in Civil Appeal No. 6 of 1997. There is an affidavit sworn by the anplicant, Tuwelane .Sahani, in support of the application, and the application was argued before me by Mr. Mkumbej leanied advocate for the applicant, and resisted by Mr. Mbise, learned advocate for the respondent, Norman Ndosite. From the affidavit and learned àounsel's submissions these facts 6ame out. The district court's judgment was delivered on 53.97 in the presence of the parties, and rights of further appeal were explained0 On 7.3.97 the applicant got a typhoid attack and fell sick for about one month 1 hrid had to attend hospital for treatment. A hospital outpatient treatment card wasattached to the affidavit. Meanwhile he assigned his son the duty to pursue copies of proceedings and judgment in the district court. On 12.+.97 he received the copies of the district court's proceedings and judgment, and on 2.5.97 he lodged this application and attached the memorandum of the intended appeal. • •There are s with respect, two reasons on which this application must be allowed. Firstly, not occur to me that the appeal was already out of time at the time this application was lodged. Once the time taken to obtain the copies of the district's court proceedings arid.judgment is discounted as •...... /2
2- required by law, it becomes clear that an appeal, if intended, was still within the time prescribed under the law at the time this application was lodged. It is a settled principle that leave to appeal out of, time can be granted upon the court being satisfied that there were sufficient reasons for failure to appeal within time. This was, therefore, not relevant in the circumstances as explained. This application was thus a misconception on the part of the app cant. Second1, I have perused the lower courts 9 proceedings and judgments as well as the memoranduni of the intended appeal. The matter in dispute between the parties centred on the ownership of a shaniba. The intended appeal, in my view, gives rise to vital points of contention between the parties. The question of possible injustice, therefore, must take priority over the &rict adheranL to, or,enforcement of, the technical rules of procedure, and I am satisfied that it is meet and proper for this court to excercise its discretion in favour of the:. applicant and grant the application. I accordingly allow the application, and hereby grant leave to appeal out of time. Costs of this application toabide the results of the appeal. -' • "T."-. 1: '' (''.' ; ' '• •-, .,,•' Ne // B.P. MOSHI JUDGEO AT MBEYA, 5 November 1999.
For Applicant: !1r. Mkumbe, advocate.
For Respondent: Mr. Mbise, advocate.

Tuwelane Sahani vs Norman Ndosite (MISC. CIVIL APPLICATION NO, 14 OF 1997) [1999] TZHC 255 (5 November 1999)

Judgment

Discussion

Tuwelane Sahani vs Norman Ndosite (MISC. CIVIL APPLICATION NO, 14 OF 1997) [1999] TZHC 255 (5 November 1999)

Judgment

Discussion