20091211 TZCA Zanzibar

,, 1 IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR (CORAM: RAMADHANI, C.J., MSOFFE, J.A., And LUANDA, J.A.) CIVIL APPLICATION NO. 10 OF 2008 BETWEEN ALI VUAI ALI ..•.••••.••••••..••••..••••••...••.••...••.•••.•......•.. I ■■ I ■■•■■■ •••• I ■■ ••• APPLICANT AND THE WAKF AND TRUST PROPERTY COMMISSION THE ADMINISTRATOR OF THE ESTATE OF SUWED MZEE SUWED •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (An Application for the Correction of an Error or Omission) (Munuo, l.A., Kileo, J.A., And Kalegeya, l.A.) Dated the 12th day of December, 2007 in Civil Reference No. 9 of 2006 RULING OF THE COURT RAMADHANI, C.J.: This is a very protracted matter in the courts and it is the fourth time that it is before this Court. It first came as Civil Application No. 10 of 2004 before RAMADHANI, J.A. (as he then was) when it was dismissed on 13th January, 2006. At that time Suwedi Mzee Suwedi was still alive. It started as Civil Case No. 38 of 1997, of R. M. Court, Zanzibar. So, it is over twelve years old now! We sincerely hope that this is the last time we deal with it. 2 Before a full Court there was Civil Reference. No. 9 of 2006 where the refusal of a single judge of this Court to extend time was upheld. That was on 1th December, 2007. This so called application to correct errors was lodged on 10th December, 2008, that is almost after a whole year. That prompted the learned counsel for the respondent, Mr. Salim Mnkonje, to raise a preliminary objection containing two grounds. We deal with the first one that the application is time barred. Mr. Mnkonje pointed out that correction of errors is under Rule 40 of the Court of Appeal Rules, 1979, which has not prescribed any period of limitation. However, he submitted that Rule 8 provides that time may be limited by "these Rules or by any decision of the Court". The learned advocate went further to point out that a decision of this Court has set a limitation of sixty days for all applications. He argued further that that period expired on 1th February, 2008 since the ruling in the reference was given on 1th December, 2007. He contended that the application is out of time by eight months. Mr. Lloyd Nchunga, learned counsel for the applicant, resisted the preliminary objection maintaining that the application was in time. He submitted that Rule 40 (1) does not fix time but provides "at any time". Admittedly, Rule 40 (1) is so couched. Does it mean that correction of errors is without limitation? But what is the purpose of limitation? 3 Ternce Prime and Gary Scanlan in The Modern Law of Limitation (Butterworth, 1993) at page 1 state: The basic reasons for having statutes of limitation are probably that potential defendants should not have to live with the risk of legal action indefinitely if for one reason or another a potential plaintiff does not pursue his remedy ... In our considered opinion this is what Rule 8 aims at. So, where the Rules are silent the Court by its decisions is to provide for limitation. This Court has provided limitation for revision to be sixty days in NBC Holding Corp & Another v. Agriculture & Industrial Lubricants Supplies & Another, Civil Application No. 42 of 2000 and also in Halais Pro-Chemie v. Wella A. G., [1996] T. L. R. 269, taking inspiration from The Law of Limitation Act, 1971. As for review this Court again copied from criminal matters in D. P. P. v. Prosper Mwalukasa, Criminal Application No. 6 of 2000 and set sixty days in James Masanja Kasuka v. George Humba Civil Application No. 2 of 1997 said at p. 5 of typed script: We think, however, that it is proper and reasonable that we should impose the same time-limit of sixty days for applications for Review in civil matters such as this one. We i accordingly set the time limit of sixty days in civil applications as we have for criminal applications for review. 4 We agree that it is debatable whether the sixty day limit was for civil review only or it was for all civil applications. We have no doubts on our minds that the phrase "at any time" in Rule 40 (1) is too broad and should not be left to stand. In Abood S. A. Abood v. Mariam M. Saleh & Another, Civil Application No. 30 of 1993, Rule 40 was in question and this Court, conceding that there was no time limit, said that the application has to be made before execution has been completed. We want to go a step further, and we have inspiration from A.G. v. Maalim Kadau & Others [1997] TLR 69, to do so. That appeal involved Rule 61 which provides that "Any person who desires to appeal to the Court shall give notice in writing ... ". It was decided that "any person" means "any person involved in the original case". Short of that it is ridiculously dangerous to say that Rule 61 does not limit who can lodge a notice of appeal. That is so with Rule 40 (1). We limit Rule 40 (1) to sixty days just as in revision and review. Mr. Nchunga, in the alternative, asked us to enlarge time. We are afraid that the violation of eight months is just too big. Therefore, we agree with Mr. Mnkonje that this application is time barred. We strike it out with costs. We think that that ground alone is sufficient to dispose of this application. DATED in ZANZIBAR, this 11 th day of December, 2009. A.S.L. RAMADHANI CHIEF JUSTICE OF APPEAL J. H. MSOFFE JUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL J.~gj== II. DEPUTY REGISTRAR