JOHN CHUWA v ANTHONY CIZA 1992 TLR 233 (CA)

 

JOHN CHUWA v ANTHONY CIZA 1992 TLR 233 (CA)

Court Court of Appeal of Tanzania - Tanga

Judge Ramadhani JA

20 August, 1992

Flynote

Civil Practice and Procedure - Appeals - Leave to appeal filed two days out of time -

B Affidavit of material person not filed to explain the delay - Effect.

-Headnote

An application for leave to appeal was filed two days after time. The delay was

explained. It was said that the documents for the application were filed well within C

time but that the receipt for the fees was issued two days out of time. The learned

judge of the High Court ruled that the date of filing the application is the date of the

payment of the fees and not that of the receipt of the relevant documents in the

registry. The delay D in paying the fees was explained by saying the cashier was

absent from the station and hence no receipt could be obtained although the money

was paid on the date the relevant documents were submitted. The said cashier did not

file an affidavit to explain the applicant's delay. E

Held: An affidavit of a person so material, as the cashier in this case, has to be filed.

Case Information

Application dismissed. F

Akaro, for the applicant.

[zJDz]Judgment

Ramadhani, J.A.: Here I have consolidate two applications. In Civil Application No. 3

of 1992 the applicant, John Chuwa, is seeking leave to appeal while in Civil

Application No. 4 of 192 he is praying for a stay of execution of the same decision in

Civil G Appeal No. 2 of 1984 (H.C.). Both parties did not object to the consolidation.

The judgment complained of was delivered by Mushi, J. on 13/6/1990. The notice of

appeal was filed in time on 25/6/1990 which was within time. However, the receipt

for the fees was issued on 29/6/1990 which date was out by two days. According to

the H learned judge, the date of filing the application is the date of the payment of

the fees and not that of the receipt of the relevant documents in the registry. Mr.

Akaro, learned advocate for the applicant, conceded that before me and I cannot fault

the learned I judge there.

1992 TLR p234

RAMADHANI JA

In this application Mr. Akaro sought to explain that discrepancy. He filed two A

affidavits: one by the applicant and the other by one Emmanuel Kanju, who was a

court clerk at the material time. It is stated that the papers were submitted at the

registry on 25/6/1990 and were properly stamped by Mr. Kanju . However, as the

cashier was B absent then the fees were left with Mr. Kanju who undertook to pass

them on to the cashier. That was done and hence the receipt dated 29/6/1990.

Mr. Akaro answered me that he did not find it necessary to produce these affidavits

before Msumi, J. because he was satisfied that the date of filing the documents was C

that which appeared on the registry stamp which was within the statutory limit.

Let me pose here and make an observation that there is a contentious point here of

whether or not it is proper to admit this new evidence which was not produced

before Msumi, J. However, I have chosen not to decide that point but to assail the

additional D evidence itself. One of the reasons for avoiding making that decision is

that the parties did not address me on that point.

The respondent, Anthony Ciza, appeared in person. He pointed out that the affidavit

of Mr. Kanju does not show when the fees were passed on to the cashier. Then, the E

respondent argued, that if Mr. Akaro or the applicant were really serious they would

have made a follow-up on the payment of the fees to the cashier the next day i.e.

26/6/1990 and that they would not have waited until 29/6/1990 and that they would

not have waited until 29/6/1990 when the receipt was given to them by Mr. Kanju. F

These are two very strong points which demolish the effect of the affidavit of Mr.

Kanju. In addition the failure to file an affidavit by the cashier is even more

devastating. This Court decided in Kighoma Ali Malima v Abas Yusufu Mwingamno

Ci v Application G No. 5 of 1987 (unreported) that an affidavit of a person so

material, as the cashier in this case, has to be filed.

So with the shortcomings detailed above the production of the new evidence,

whether rightly or wrongly, does not cure the defect which confronted Msumi, J.

And for that very reason, like Msumi, J., I have to dismiss this application with costs.

H

The respondent submitted that if the application for leave to appeal fails then the

prayer for a stay of execution must fail too. I think there cannot be a more logical

proposition than that. So too the prayer for a stay of execution is dismissed with costs.

I Appeal dismissed.

1992 TLR p235

A