| dc.description | BUKOBA MUNICIPAL COUNCIL VS. NEW METRO MERCHANDISE
COURT OF APPEAL OF TANZANIA AT BUKOBA [MWARIJA, SEHEL, MAIGE, JJ.A.]
CIVIL APPEAL NO. 374 OF 2021
(From the Decision of the High Court of Tanzania, at
Bukoba (Mlacha J.) dated the 9th day of March, 2019
in DC Civil Appeal No. 15 of 2017)
Law of Limitation Act-Exclusion of certain periods-time spent in obtaining copies of judgment and decree-whether can be excluded automatically
Law of Limitation Act- An appeal under the Civil Procedure Code where the period of limitation is not otherwise provided for by any written law- appeal from District Court to High Court-time within which an appeal is to be lodged.
Appeals- appeal from High Court to the Court of Appeal-matters or issues which can be appealed against- whether the Court of Appeal can look into matters that were not decided upon by the High Court.
This appeal is against the decision of the High Court of Tanzania (the High Court) that sustained the respondent’s preliminary objection that the appeal against the decision of the District Court of Bukoba lodged by the appellant was time barred. The brief facts led to this appeal are such that; the respondent successfully sued the appellant in the District Court of Bukoba at Bukoba (the District Court) for breach of contract. In its judgment delivered on 27th September, 2016, the trial court decided in favour of the Respondent. Aggrieved by that finding, on 3rd July, 2017 the appellant lodged its appeal in the High Court. The appeal by the appellant was encountered by a preliminary objection that it was time barred as it was contended that it was filed over and above ninety (90) days period prescribed under item no. 1 of Part II of the Schedule to the Law of Limitation Act, Cap. 89 R.E. 2002 (now R.E. 2019) (the LLA). In opposing the preliminary objection, the appellant argued that in terms of section 19 (2) of the LLA, the time spent in obtaining a copy of the judgment of the District Court is excluded in computing the 90 days period. It was submitted that since a copy of the judgment was certified and supplied to the appellant on 15th May, 2017 then the appeal was filed in time. The respondent did not dispute the date of certification rather he argued that the same could have been good ground for seeking an extension of time to lodge an appeal out of time. In other words, the argument by the respondent was that section 19 (2) of the LLA is subject to an order of the court for an application for extension of time. It does not provide automatic exclusion of time. The High Court sustained the preliminary objection on the ground that appeal was time barred. That decision of the High Court displeased the appellant as such after obtaining leave of the High Court, the appellant lodged this appeal advancing one ground in the Memorandum of Appeal that the High Court erred in law for dismissing the appeal filed within time as per the law.
Held
(i). Section 19 (2) and (3) of the Law of Limitation Act provides for an automatic exclusion of time requisite for obtaining a copy of the decree or judgment appealed from when computing the period of limitation for lodging an appeal to the High Court.
(ii). In terms of item number 1 of Part II of the Schedule to the Law of Limitation Act, a ninety days limitation period is prescribed for lodging an appeal under the Civil Procedure Code. Such period is computed from the date on which the judgment, decision, award, decree or order appealed against was delivered.
(iii). It is trite law that, this Court can only look into matters that came up in the first appellate court and were decided upon and not matters that were neither raised nor determined by the court from which the appeal emanates, unless they are points of law.
Appeal allowed
Statutory Provisions referred to:
1. Civil Procedure Code, Cap 33 RE 2002 Order XXXIX rule 1 (1),
2. Law of Limitation Act, Cap 89 R.E 2019 Section 6, 19(2) and (3), item 1 of part II of the Schedule
Cases referred to:
1. Alex Senkoro & 3 Others v. Eliambuya Lyimo (as administrator of the estate of Frederick Lyimo, deceased), Civil Appeal No. 16 of 2017 (unreported)
2. Director of Public Prosecutions v, Mawazo Saliboko @ Shagi &. 15 Others, Criminal Appeal No. 384 of 2017 (unreported)
Mr. Hangi Chang'a, Principal State Attorney, Mr. Gerald Njooka, learned State Attorney and Mr. Urso Luoga, Learned State Attorney for the appellant
Mr. Stephen Mosha, learned Advocate for the Respondent | en_US |
| dc.description.abstract | (i). Section 19 (2) and (3) of the Law of Limitation Act provides for an automatic exclusion of time requisite for obtaining a copy of the decree or judgment appealed from when computing the period of limitation for lodging an appeal to the High Court.
(ii). In terms of item number 1 of Part II of the Schedule to the Law of Limitation Act, a ninety days limitation period is prescribed for lodging an appeal under the Civil Procedure Code. Such period is computed from the date on which the judgment, decision, award, decree or order appealed against was delivered.
(iii). It is trite law that, this Court can only look into matters that came up in the first appellate court and were decided upon and not matters that were neither raised nor determined by the court from which the appeal emanates, unless they are points of law. | en_US |
