Alphonce Manyanya vs Hamisi Nkuluzi (PC Civil Appeal No. 7 of 1999) [1999] TZHC 213 (3 May 1999)
Judgment
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· IN THE· HIGH COURT OF TANZANIA
AT· TJI.BORA
...vour o_f Alphonoe 1-bnyanya _as prayed. •.
Hamisi Nkuluzi appealed -'.:.#r.tl .....
(PC) CI\TIL i\PPEAL NO. 7 OF 1999
(ARISJNG FROM Kll30NDO DISTRICT COURT
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CIVIL 1\PPEAL NO. 7/97 FROM OR•L C:rilIL
CASE NO. 2/97 OF IcrBONDO URBAN PRIMARY
COURT .. KIBQNDO)
l.LPHONCE .. '\NYANYA • ~ •• Cl •• • APPELLt-..NT
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HAMISI NKULUZI ••• •• •••••.RESPONDENT
Alphonce Man;yanya sued Hamisi Nkuluzi at the Kibondo Urball
Primary Court in Civil Case No. 2 of 1997 claiming a sum of Shs.
3,46o,Oli0/= being the amount of ls and value of goods given
· en credit to Ha.mis Nkul.uzi for the period 1993 to 996. Mr. Nkuluzi
admitted liability to the tune of Shs.1,174,640/= only. !Ble Primary
Court promounced jument in fo the District Court which all9wed the
appeal in part •. The ,District Court entered judgment in favour of
A1phonce M:.nyanya for· ·the a.mount· admitted by Hrunis Nkuluzi at the ·
Primary Court, that 4s Shs.1
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174,640/= and allowed the appeal. in.
respect of the balance. urt
as evidence.
4. That the learned bistriet Magistrate erred in
·· not· reading ing dissaisfied Alphonce Manyanya.
(Appellant) .has appealed to this court.
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At the hearing of this appeal none of the parties was represented.
by counsel.
The main grounds of appeal as shown in. the petition of appeal
which appears to have . been prepared on advice of counsel are as
follows:
1._ That tne learned District Magistrate erred in law b1
admitting the appeal out of time.
2.-. That on the evidence on record the learned District
M3.gistrate.erred in law in upholding the decision
of the Primary Court.
3. That t,he 'learned District Magistrate erred ·:1.n law ·
and fact in deciding suit basing on the fact
f:rom the.record which were not tendered in cughly and evaluating properl,: .·
a documentary exhibit shown .from th record·bμt
only base on wrong explanation of the. Respondent.
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( 2 )
At the hearing of the appeal the Appellant raised the additional.
ground of appeal, name],.y, bias on the part of '11• District M:,gistrate.
On going through the record there appear to be. three issues for
decision in respect of this appeal, namely:
(a) -lh.ether·the appeal to the District Court was
time barred;
(b) Whether the Appellant had adduced sufficient
evidence to establir,h his claim on a balance
of probabilities.
( c) Whether there w&s bias on the pa.rt of the
District Magistrate.
With regard to the contention that the District Court awnitted
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the appeal which was time barred, it is not disputed that the Primary
Court.&s judgment was• delivei-ed- on.-28-.2.1997-.-- In term~-of-.·#,e---20· _,
( 3) of the 11:lgistrate• s Dourts Act, 4:984 the Respondent had; ?,('5:°days
within which to file his.petition of appeal to the District-Court.
The said petition of appeal. was not filed wi th:in 30 days. lt,tis
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filed on 1.4.1999 when it was about 2_days out of time. Under section
20 ( 4) of -the M=J.gistraters Courts Act~~984 the District cour~
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has
power to extend the time for fil:ing appeal either before or fter such
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period has expired. By his ruling dated 25.7.1997 the lear.ned •
District 1':istrata extended time for filing the said appeal. There
was no appeai from such ruiing. Hence the appeal. to the District·
Court was not time bal:'rede
I now turn to the evidonoe adduced by the Appellant at the
Primary Court. Apart from the Appellant five other witnesses
gave evidence in sttpport of his clatn.sM3, sM4 and SM5 told
th~ Primary Court that they knew the Appellant and Respondents
.to have been friends and that the Respondent used· to ibta:ln goods
.•n credit from the Appellant's shop. ~ey ge.ve no particulars as
to dates, quantity and value of goods given to the Respondent on
credit. Such evidence cannot be said to be proof of' the claim of t.l.
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the pellant aga:inst the Respondent. SM2 tendered a list of
debtors (E:xh. PJ.4). On this list the· name of the Respondent appears
and the amount he a.ll.egedly owes the Appellant. On the said list
there is no signature of the Respondent aknowledging the obtaining
of such goods on d:redit. It therefore, does not prove the claim of t:_
the Appell9.11t aga:inst the ~espondent•
The appellant as GMI tendered a. number of dootunentary- exhibits.
Exhibit PI is a list Qf 1laims by the Appellant against the
- . Respondent for the period 1993 to 1996. No item on it bears the signa~ of the Respondent as acknowledgment Of ·responsibility.
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( 3 )
Exhibits P2 to P13 are letters by the Respondent irequesting loans
and goods on credit. There is no proof that those requests were
honoured.
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Having failed to prove his claim, th~ _ pj.i<:-t----Magia;te was
right in entering judgment. in favour· -£··-the appellant to the tune
of the amount admitted by the Respondent and to allow the appeal
in respect of the ba.J.ance.
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D.M,M:IITA
JUDGE
~m\t the hearing of this appeal th_e Appeallant ·,compl.e.ined .of bias
on the part of the District Court. He stated th.at at the hearing of
the appeal at the District Court the Appellant (by then Respondent)
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had required the District Magistrate to disqualify himself on account
of the friendship between himself ( trie District _.¥.iagist:r,ttte) and the
Re$pondent (by the:zf,Appellant) but the District -..lgistte did not
disqualify himself• There is nothing on the record a?out this issue.
There is nothing on record to indicate that the learned District
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M3.gistrate was biased against the Appelia.nt and the Appellant does
not a.llege any incident indicating bias, apart from allegations of
friendship between the District M:i.gistrate.and Respondent. This
ground of appeal has no reasonable basis.
The decision of the District Court is upheld.
The appeal. is dismissed with· oosts,.
. D.M,M·lrrA
JtJDGE
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Delivered ;in chambers during High Court Sessions in Kigoma. in the
presence of Nku.1.Uzi, Respondent; this 3rd day of M:ty-
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1999•
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