THE Court of Appeal has refused to throw away the appeal by three Karagwe District residents, challenging dismissal of suit for 550m/- payments by the District Commissioner (DC) and three others for seizure and sell of their 1,500 herds of cattle.
Justices Augustine Mwarija, Stella Mugasha and Rehema Mkuye ruled in favour of Charles Chama, Muzola Kaisholi and Kadugu Kahindi, after dismissing a ground of objection presented by the DC, Kagera Regional Manager of Tanzania Revenue Authority, District Immigration officer and Attorney General.
The DC and his three corespondents had objected to the hearing of the appeal because it was incompetent for contravening Rule 97(1) of the Tanzania Court of Appeal Rules, 2009, for the appellant failure to serve the Memorandum of Appeal and Record of Appeal within the prescribed time of the law.
In their ruling, however, the justices of the appeal court found that the preliminary objection raised by the respondents does not raise a pure point of law, thus, the same must, for that reason, fail.
"In the event, the objection is hereby overruled with costs," they declared.
During hearing, counsel for the respondents had contended that his clients were served with the record and memorandum of appeal (the documents) outside the period of seven days from the date of filing the same as required under Rule 97(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules).
He contended that, whereas the documents were lodged on January 15, 2018, the respondents were served on May 7, 2018, the period of over three months thereafter.
The counsel argued that by so doing, the appellants contravened the Rules, hence rendering the appeal incompetent.
However, the advocates for the residents, the appellants in the appeal, had submitted that the preliminary objection raised was misconceived, as the respondents have not established that they were served with the documents outside the period of time prescribed under Rule 97(1) of the Rules.
According to the learned counsel, the documents were served to the respondents on January 17, 2018 within the period of seven days from the date of lodgment of the same in Court.
He contended that, since the point raised by the respondents' counsel requires proof of the date of service, the fact which had to be established through evidence, the objection by respondents is not based on a pure point of law.
In the ruling, the justices noted that the counsel for the respondents had conceded that the notice of preliminary objection does not contain any attachment showing that the respondents were served with the documents belatedly on May 7, 2018.
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