SAIDA SAID v SAIDI MOHAMEDI 1989 TLR 206 (HC)

 

SAIDA SAID v SAIDI MOHAMEDI 1989 TLR 206 (HC)

Court High Court of Tanzania- Songea

Judge Maina J

30 October, 1989 B

Flynote

Court of Appeal Rules - Appeals - Application for extension of time to appeal to the

Court of Appeal - Whether sufficient reasons shown.

Law of Limitation - Delay in filing an appeal - Whether appellant has sufficient cause

for the delay. C

-Headnote

This is an application for the extension of time within which to appeal to the Court of

Appeal and for leave to appeal to the Court of Appeal. The judgment of the first

appellant court (The High Court) was delivered in the High Court on 14 November D

1988 at Songea in the presence of the parties. The applicant filed a notice of appeal in

time. She however got a copy of the judgment, at Mtwara registry, on 26 January

1989. She could not, therefore, apply for leave in the High Court to appeal to the

Court of E Appeal within fourteen days as required by Rule 43(a) of the Tanzania

Court of Appeal Rules. The point of law and mixed law and fact for determination by

the Court of Appeal are sufficiently highlighted in the ruling.

Held: (i) As reasonable and sufficient cause for delay has been shown application for

F extension of time is granted;

(ii) there are both points of law and mixed law and fact needing determination

by the Court of Appeal in this case.

Case Information

The application is granted as prayed. G

Mwajasho, for the applicant

Haule, for the respondent

[zJDz]Judgment

Maina, J.: This is an application for extension of time within which to appeal to the H

Court of Appeal and for leave to appeal to the Court of Appeal.

The judgment of this court was delivered on 14 November 1988 at Songea in the

presence of both parties. The applicant gave notice of intention to appeal to the Court

of I Appeal on the same day, and she paid the relevant fees. The applicant was

required to

1989 TLR p207

MAINA J

seek leave of the High Court within fourteen days of appeal, as required by Rule 43(a)

A of the Tanzania Court of Appeal Rules. But she did not do so within the period

prescribed. Her reason for delay is that she could not obtain the copy of the judgment

until 26 January 1989 and she had to send it to her advocate at Dar es Salaam. She had

to travel to the High Court Registry at Mtwara for the purpose of obtaining the copy

of B judgment. She says in her affidavit that the clerks at the High Court Registry

were not cooperative and they kept telling her that only her advocate could obtain

the copy of the judgment. How she eventually obtained it is not known. Mr. Haule,

for the respondent, has strongly opposed the application saying that the applicant is

indolent and a liar. C

There is no dispute that the appeal was heard by this Court at Songea where the

judgment was delivered. It is common knowledge that the High Court Registry for

Mtwara Zone is at Mtwara, and whatever judgments are pronounced at Songea, the

D copies of those judgments cannot be ready for distribution to the parties until after

the files are returned to Mtwara. There is no record to show when the copy of

judgment in this case was ready. In my view, it could not be possible to have the

judgment ready for distribution immediately. The applicant had to travel to Mtwara

for her copy of the E judgment. It is alleged that she did not receive it until 26

January 1989, just over two months after the judgment was delivered. Mr. Haule

demanded a receipt as proof of the date the applicant received the copy of judgment.

This, Mr. Mwajasho, counsel for the applicant, could not produce because the matter

was heard at Songea while the F applicant was residing in Dar es Salaam and Tanga.

In the circumstances of this case, as I have said, it was not possible for the applicant

who was then resident at Songea where the appeal was heard, to have obtained the

copy of the judgment at Mtwara immediately, or within a short period. The problems

of G communication between Songea, Mtwara and Dar es Salaam are well known.

It was also said that the delay in filing the application was due to unavoidable

circumstances. The application was filed in August 1989. This, as Mr. Haule said, the

H applicant obtained the copy of the judgment on or about 26 January, 1989. She had

to take it from Mtwara to Dar es Salaam where her advocate is based. She sought legal

opinion and the affidavit was signed in March 1989. It is evident from the annextures

to the affidavit that the application was sent to the High Court Registry at Mtwara in

March I 1989, and not February 1989 as stated in the supplementary affidavit. The

1989 TLR p208

MAINA J

letter from the District Registrar dated 6 March 1989 returning the application to the

A advocate for the applicant is proof that the application was submitted at the High

Court in late February 1989 or early march 1989. There was an exchange of

correspondence between the District Registrar and Mr. Mwajasho for certain

corrections to be made in B the application and for fees payable, until the application

was eventually accepted by the High Court Registry and filed on 21 August 1989. So,

between March 1989 and August 1989, there was a chain of correspondence between

the High Court Registry and the advocate for the applicant about the application. It

cannot be said that the C applicant had delayed until August 1989 when the

application was filed.

The application was presented for filing before March 1989, but the District Registrar

refused to register the application due to certain matters which the District Registrar

D pointed out that they needed corrections. The question is whether the applicant

has shown sufficient or reasonable cause of the delay so that she may get an extension

as provided in section 14(1) of the Law of Limitation Act, 1971. On the whole, the

applicant was diligent and not indolent. She gave notice to appeal on the same day the

E judgment was delivered by the High Court at Songea. She had to travel to Mtwara

to get a copy of the judgment. I believe her that she did not get the copy she needed

at the time she wanted it. There was no reason for her to travel to Mtwara and then

sit back. When she eventually got the copy of judgment she had to take it to Dar es

Salaam to her F advocate. The papers which were eventually filed at the High Court

Registry at Mtwara were not immediately accepted, and the applicant cannot be held

responsible for the ensuing delay. In the circumstances, I find that there is reasonable

and sufficient cause for the delay. G

Mr. Haule had submitted that the affidavit in support of the application was defective

for non-disclosure of the source of information. I do not agree with him. The affidavit

clearly stated the source of information on the matters stated thereon. It was not

necessary of the applicant to give names of the clerks of the High Court Registry. She

said that the H clerks did not cooperate in giving her the copy of judgment. That was

sufficient disclosure.

For the reasons which I have given, I find that reasonable and sufficient cause for the

delay has been shown and the extension applied for is granted.

As regards the points of law, Mr. Mwajasho submitted that there are several, while

Mr. I Haule said that no points of law are

1989 TLR p209

MAINA J

involved. The parties were husband and wife. Their marriage was dissolved by a

decree A of divorce issued by this court of appeal. The dispute is over a house on

Plot 15 Mbamba Bay road in Songea Township. Both the District Court and the High

Court found that the respondent is the lawful owner of the house. The applicant wife

claims that it is her house, and that it is not matrimonial property but personal

property. The B certificate of Right of Occupancy is in the name of the Applicant.

The Respondent alleged that he wanted to register the house in the name of his son,

Saidi Saidi, and the applicant, by fraud, had the house registered in her name. C

There is another house, No. 11 Block C in Songea Township which the applicant had

claimed she bought by paying shs.50,000/=. That evidence appears, according to Mr.

Mwajasho, to have been confused as referring to the purchase of the house now in

dispute. D

In my view, there are points of law involved in this case. They are as follows:

1. Whether a mere prior visit by contender to the Land Office is sufficient

proof to rebut legal and registered ownership of an immovable property, to wit Plot E

15 C Mbamba Bay Road Songea Township, registered in the name of the Applicant.

2. Whether the fact of marriage per se rebuts the legal ownership of a

granted Right of Occupancy. F

3. Whether in law a minor can hold or apply for a Right of Occupancy.

4. Whether the finding by the Appellate Judge as to ownership of the

house on Plot 15 C Mbamba Bay Road in Songea Township is maintainable in law G

when it seems the judge was addressing his mind to the evidence of DW9 Mrs.

Hamza, the fact of shs.50,000/= which was in respect to another house No. 11 Block C

Songea, property bought by the Applicant in the name of the respondent's son. H

Those are the points of law involved in this matter, and some may be of mixed law

and facts.

I Application granted.

1989 TLR p210

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