20100831 TZCA Arusha

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IN THE COURT OF APPEAL OF TANZANIA

ATARUSHA MSH. CIVIL APPLICATION NO. 3 OF 2009 ABSALOM BENJAMIN ................................................................... APPLICANT

VERSUS 1. BERTHA URASSA 2. JASPER W. MLAY •••••••••••••••••••••••••••••••••••••••••••••• _••••••••••••••••• •RESPONDENTS (Application from the decision of the High Court of Tanzania at Moshi) (Mugasha, l.) dated the 8 th day of May, 2009 in Misc. Application No. 22 of 2008

RULING 31 Aug. & 1 September, 2010 MSOFFE, J.A.: The record before me appears to show that in Misc. Civil Application No. 22 of 2008 of the High Court of Tanzania at Moshi the applicant herein sought an extension of time to appeal against the decision of the District Court of Moshi in Civil Appeal No. 22 of 2001. The High Court (Mugasha, J.) dismissed the application on 8/5/2009. Pursuant to the order of dismissal the applicant has now come to this court with an "application" which is by way of a notice of motion. 2 At the hearing of this "application" the applicant appeared in person. The respondents appeared in person(s) too. Besides saying that the courts below never gave him the opportunity to be heard there was nothing else the applicant could say on what this application is all about. The respondents too had nothing useful to say on the competence or otherwise of this "application". In my considered view, this so called "application" is incompetent for reasons which will emerge hereunder. One, the citation shows that this is: 11 an appeal from the whole decision of the High Court of Tanzania at Moshi (Madam Justice S. E Mugasha, Judge Dated gh May 2009 Misc. Appl. No. 22/2008)." It is not clear from the above citation as to the applicant's real intention in this matter. Is this application meant or intended to be an "appeal" against the above decision? · If an "appeal",

does the applicant know that there was no properly instituted appeal in terms of Rule 83 of the Tanzania 3 Court of Appeal Rules, 1979 which were the applicable rules when this "application" was filed on 30/7/2009? Two, the "application" is not properly grounded in the sense that there is no citation of any of the Court Rules under which it is brought. In the absence of such citation it is evident that the court has not been properly moved. Indeed, this Court has consistently held in a number of decisions that the court has to be properly moved by citing the correct provision under which an application is grounded before it can act accordingly. Further to the said decisions, the law as it is now under Rule 48 (1) of the Tanzania Court of Appeal Rules, 2009 is that it is mandatory to cite the specific rule under which an application is brought. Three, as already stated, this "application" was lodged on 30/7/2009 when the applicable Rules were the Tanzania Court of Appeal Rules, 1979. Under Rule 45(1) thereof, it is provided that: - ... all applications to the Court shall be by motion, which shall state the grounds of the application. (Emphasis supplied.) 4 As it is, in this "application" no grounds have been stated contrary to the dictates of the above sub-rule. In the event, for the reasons stated, this "application" is incompetent. It is accordingly struck out. Since the above points are a result of my own research and understanding of the record before me I will not make an order as to costs. DATED at ARUSHA this 31 st day of August, 2010. J. H. MSOFFE

JUSTICE OF APPEAL I certify that this is a true copy of the original. ,. - - p.-:;, ·,, "~\ (E. Y. MKWIZU)

DEPUTY REGISTRAR

COURT OF APPEAL