Tuwelane Sahani vs Norman Ndosite (Misc. Civil Application No. 14 of 1997) [1999] TZHC 480 (5 November 1999)

t10SHI 1 Jo IN THE HIGH COURr OF TANZANIA AT MBEYA MISC. CIVIL APPLICATION NO. 14 OF 1997 (Frrn th decision of -the District Court ·or· . ' Mbozi at Vwawa in Civil_ppeal N6. 6 of 1997 Befre: L.s. Mtam~~ (Mrs) - !>istrict Magtrate) TUWELANE SAHANI o.; o. o • o o o •.• o o • 1, e 1\I'PLICANT Versus NORMAN NOOSITE RESPONDENT RULI_NG_. This is an ·application for lea:ve to appeal to this court out of time from C · .. ,, C. • the decision of the district court" bf Mbozi district. at Vwawa in Civil Appeal .?l :.L. No. 6 of 1997. There is an•affidavit sworn by- the applicant, Tuwelane Sahani, in support of the application, and the· application was argued before me by Mr •. Mkumbe, learned advocate for the applicant,· ah'd-resisted by Mro Mbise, leed advocate for the respondent, Norman. _I'{dosite •.. · ·, . . · .• -:·1 .From the affidavit and learnd counsel's submissions these facts-~~-- out~ The district court's judgment was delivered on 5r.3P.97 in the presence of the parties, and rights of further appeal were explained. Jn 7.3.97 the applicant got a typhoid attack and fell sick for about one month and had to attend hospital_ for treatment. A hospital outpatient treatment card was attached to the affidavit~ Meanwhile he assigned his son the duty to pursue copies of proceedings and judgment in the district court. On 12.4.97 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, with respect, two reasons or. which this application must be . :i.;t 4o~ allowed. Firstly, . . __ not occur to me that the appeal· was .alr,eady out. of time at the time this application was lodged. Once the time-taken to obtain the copies of the district's court proceedings ..an.d_judgment is discounted as ' ' ••o••••• /2

\ 2 ... 'r ,, •.. 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 ou_t of time can be granted upon the court being satisfied that there were sufficient reasons for failure to appeal : r ,- :·. . within time. This was, therefore, not relevant in the circumstances as explained. This application was thus a misconception on the p.qrt of the applicant. Secondli, I have perused the lower courts 9 proceedings and judgments as well as the memorandum of the intended appealo The matter in dispute between the parties centred on the ownership of a shamba. The intended appeal, in my view, g:i'.ves rise to vital points of contention between the parties. The question of possibie injustice, therefore, must take priority over the strict adheranee;to, dr enforcement of, the technical rules of procedure, and I am satisfied that it :[s meet and proper for this court to excercise its discretion in favour of the: ~~plicant and grant .the application. I accordingly allow the application, and hereby grant leave to appeal out of time 0 Costs of this application to abide the results of the appeal. AT MBEYAo 5 November 1999e

For Applicant: , . ;· For Respondent: ,. ' Mr. Mkumbe, Mr., Mbis~, advocate. advocate. BoPo MOSHI JUDGEo J