20100312 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CIVIL REVISION.NO.7 OF 2007 (Originating from Kisutu RM'S Court in Employment cause no. 48 of 1993) HAJI KHALFANI ................ APPLICANT

VERSUS SHlRIKA LA USAFIRI DAR ES SALAAM (UDA) .. ·.. ;~ ...... RESPONDENT --· Date of last order: 26/2/2010 Date of Ruling: 12/3/2010

RULING Aboud,] The applicant has filed a Chamber Summons supported by an affidavit under Section 5 (1) (c) of The Appellate Jurisdiction Act Cap. 141 R.E. 2002, Rules 43 (b) and 44 of The Tanzania Court of Appeal Rules, 1999, section 95 of the Civil Procedure Code (Cap. 33 R.E. 2002) _and any other enabling provision of the law. The orders sought by the applicant are: (a) That this Honourable court be pleased to grant leave to the Applicant to appeal to the Court of Appeal against the whole decision of Hon. Mr. Justice Othman Chande dated 17th September 2007. 1 --------- I ,, ' (b) That this Honorable Court be pleased to make any other order as may appear to be just and convenient. (c) That costs be provided for. Before the application was called for hearing, the Respondent through the services of Mr. John Lyimo, learned _Advocate filed a notice of preliminary objection grounded on two points as follows: 1. That in as much as there is Ruling on the Court of Appeal (Munuo J.A) dated 19/12/2008 striking out the Notice_ of Appeal on a~count of failure by the applicant to have filed an application for leave to appeal, the purported application for leave to appeal now before the High court is incompetent and of no effect.

2. That as the applicant had on 10/2/2009 filed in the Court of Appeal an application for Review of the ruling of the Court of Appeal (Munuo J.A dated 19/12/2009) and that application is still pending in the Court of Appeal, the High court is not competent to hear and determine the present application for leave to appeal to the court of appeal. · Therefore the respondent prays the court to strike out the application with costs. Parties argued this application by way of written submission as the court ordered them on 29/2/2010. In his written submission the respondent through Mr. Lyimo, Advocate submitted that in the first place the chamber summons before this court seem to be wrongly placed as it is titled in the Court of Appeal of Tanzania at Dar es salaam and not in the High Court of Tanzania at Dar es 2 C salaam as was supposed to be. Not only that, but also the dates which the application was set for hearing and that when the Registrar signed and sealed reflects some serious irregularities on the application. It was fixed for hearing sometimes in 2007 while the registrar signed and scheduled it on 2/9/2009 which shows the date of hearing was set before the registrar signed it as per the normal procedure. I found it necessary to consider this observation of the respondent as it reflects the way this matter has been handled by the applicant from the beginning when it landed

to this court. Submitting on the ground of the preliminary objection Mr. Lyimo, learned counsel said as regard to the first point of objection so long as the Ruling of Munuo J.A which struck out the Notice of appeal to the Court of Appeal was filed by the applicant after been dissatisfied by the decision of Othmani Chande, J in Civil Revision No 7 2007, he cannot apply for the leave to appeal in this court. In such ruling Munuo J.A struck out the notice on the· ground that there was no leave to appeal to the Court of Appeal which was sought in the High Court as required by Rule 43 (a) of the court of appeal Rules, 1979. Therefore so long as the court of appeal decision is still valid the applicant ought to have complied with by seeking a leave to appeal to the Court of Appeal from the High Court as he did if the time of limitation was in his favour and if not he ought to have applied for extension of time as provided for under section 11 (1) of the Appellate jurisdiction Act (Cap. 141 R.E. 2002). I 3 ' < I Therefore he concluded that the applicant failure to comply with the requirement of apply for extension of time a clearly provided in a cited law above renders this application to be incompetent and should be struck out. As regard to the second ground of preliminary objection. Mr. Lyimo, leaned counsel for the respondent strongly submitted that the applicant has filed an

application before the Court of Appeal challenging the decision of Munuo J.A by way of Review and such application is still pending in that court. Therefore he submitted that since the application before the court of appeal is yet to be determined, it is pre-mature to have a parallel application in this seeking leave to appeal because the outcome of the application now before the court of appeal may be to overrule Munuo J.A. in which case the notice will be restored and the application proceed in normal way. Therefore he prayed that this application be stuck out because the court is incompetent to deal with this application before the outcome of the application for review in the court of appeal is known yet. Resisting to the points of objections, the applicant who is not represented submitted that Notice of Appeal was filed on time as well as the application for leave to appeal. The respondent new that fact but misled the court of appeal on that fact. He asked the court of appeal to strike out the notice of appeal while he knew that the application for leave to the court of appeal was pending before this court. So it is his submission that the pending determination of the review application. in the court of 4 appeal cannot oust this court inherent power to determine the application at hand which was properly lodged. He concluded that the application has no merit and should

be dismissed with costs. Considering the submissions of the parties in this application as well as the record, the point for defamation is whether this court can entertain and determine this application while there is another application before the court of appeal for reviewing the decision which struck out the notice of appeal of the applicant. It is very clear that by striking the notice of appeal of the applicant for a leave to appeal to the court of appeal granted by the high court as referred in law, the applicant had an opportunity to come back to this court to apply for leave if the time limit was in his favour. Instead of he decided to apply for review of the decision of Munuo J.A which struck out that Notice of Appeal. By such application the applicant challenged that decision and that means he was not ready to come back and seek the required leave to appeal to the court of appeal according to the requirement of law. It is the fact that he was out of time since the law requires application for leave to appeal to the court of appeal against the decision , of the high court on revision to be done within 14 days as submitted by Mr. Lyimo. So even if we take that his act of applying the leave inferrers that he decided not to proceed with his application for review in the court of appeal, still he was out of time and he ought to have applied for the extension of time as

provided for under section 11 (1} of the Appellate Jurisdiction Act (Cap. 141 R.E. 2002). 5 ( On the other hand the applicant act of applying different application in the High Court and the Court of Appeal was the abuse of court process. The two applications cannot be entertained parallel. The reason for that is, if the applicant application for review is not yet determined in the court of appeal how can he come to the high court and say that he is complying with the order which he has challenged? In his submission he said, this application for leave to appeal was filed on time as well as the notice and that the respondent new that fact ---1:>ut- he misled the-co □ rt-of appeal. Then if that was or is or is the posit_ion and the basis for challenging the decision of the court of appeal by Munuo J.A why should he bother to come to this court before determination of the review applicant in court of appeal. As rightly submitted by the respondent counsel that the court is incompetent to entertain and determine this applicant as the outcome of the review application in the court of appeal is still in its womb not yet delivered. In the result I uphold the preliminary objection and struck out the

JUDGE 12/3/1010 6 'II -