Court name
Court of Appeal of Tanzania

John Chuwa vs Anthony Ciza () [1992] TZCA 35 (20 August 1992);

Law report citations
1992 TLR 233 (TZCA)
Media neutral citation
[1992] TZCA 35

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.

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.

A
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