bank of tanzania vs saidi marinda others 2010 tzhc 430 27 july 2010

IN THE HIGH COURT OF TANZANIA AT PAR ES SALAAM MISC. CIVIL CAUSE NO. 67 OF 2002 THE BANK OF TANZANIA......................... APPLICANT VERSUS SAIDI MARINDA AND 30 OTHERS . . . . RESPONDENTS Date of last order -14/7/2010 Date of Ruling - 27/7/2010 RULING Shangwa, J.: On 12th May, 2009, counsel for the Applicant, Mr. Mponda of Asia Attorneys filed an application on behalf of the Applicant Bank of Tanzania for leave to appeal to the Court of Appeal of Tanzania against the Ruling of this Court by Mruke, J. delivered on 30th April, 2009 in Miscellaneous Civil Cause No. 67 of 2002. The Application itself is supported by affidavit of Senen Edmund Mponda. Counsel for the Respondents, Mr. Julius Kalolo Bundala filed a counter - affidavit in opposition to this Application. Both counsel presented written submissions on behalf of their clients. In his written submissions in support of this Application, Mr. Mponda contended that this court’s decision to dismiss the Applicant’s application for extension of time to appeal to the Court of Appeal against the decision of this Court which was made on 10th October, 2003 is a set back to its intended appeal which contains issues of law and facts deserving adjudication by the Court of Appeal. He gave three grounds upon which his Application for leave to appeal to the Court of Appeal against the Ruling of this Court dated 30th April, 2009 is based. They are as follows:- (1) That the learned trial judge erred in law and fact in holding that no sufficient cause was shown for the delay in filing the Notice of Appeal in time despite the clarity of the affidavit in support of the application and the Applicant’s written submissions. (2) That the learned trial judge erred in law in holding that the Applicant had delayed for 48 days despite the clear provisions of the law. (3) That the decision of the learned trial judge is otherwise faulty and bad at law. Counsel for the Respondents submitted on behalf of his clients namely Said Marinda and 30 others that the Application for leave to appeal to the Court of Appeal against the Ruling of this Court delivered on 30th April, 2004 is misplaced and misguided. He gave two reasons for his submission. They are as follows:- (1) That under Rules 8 and 44 of the Court of Appeal Rules when the High Court refuses to extend time to file Notice of Appeal, the proper remedy is not to appeal against the refusal but to lodge an application in the Court of Appeal for extension of time to file Notice of Appeal. (2) That it is not open for the Applicant to seek leave to appeal against the refusal to extend time to file Notice of Appeal and that the Applicant ought to have filed another fresh application in the Court of Appeal for extension of time by Notice of Motion and not to appeal. In support of his submission, counsel for the Respondents referred this court to the following cases. 1. Umoja Garage V. NBC [1997] TLR 109. 2. TRA V. Tango, Civil Application No.5 of 2006 - Court of Appeal of Tanzania (unreported) 3. Court of Appeal Civil Application No. 158 of 2005 Mabi Auctioneers (T) V. NBC Holding. These Authorities were distinguished by Counsel for the Applicant in his rejoinder submissions. He said that in Umoja Garage and Mabi Cases cited above, the Court of Appeal did not make a decision on whether the decision of the High Court refusing an application for extension of time is appealable or not. He also said that in TRA case cited above, the Court of Appeal confirms their position that a refusal of the High Court to extend time within which to file Notice of Appeal is a decision capable of being appealed against. In my considered opinion, the refusal by this Court to extend time to file Notice of Appeal is appealable to the Court of Appeal of Tanzania and before appealing to the Court of Appeal against such a refusal, the aggrieved party has to seek leave to appeal to the Court of Appeal. Indeed, there is nothing in the Authorities which were cited by counsel for the Respondent which decisively bars an appeal against the refusal by this Court to extend time for lodging a Notice of Appeal. Therefore, I do not agree with counsel for the Respondents' submission that the Applicant in this case is barred from seeking leave to appeal against the refusal by this Court to extend time to file Notice of Appeal. Also, I do not agree with counsel for the Respondents’ submission that the Applicant ought to have filed another fresh application in the Court of Appeal for extension of time. In cases such as this one where the High Court refuses to extend time to file a Notice of Appeal, the way open for the aggrieved Party is to appeal against such a refusal and not to file a fresh application in the Court of Appeal. In my view, filing a fresh application in the Court of Appeal instead of filing an appeal in such Court where the High Court has heard an application for leave and determined it by refusing it would be a duplication of work because the High Court and the Court of Appeal have concurrent original jurisdiction to hear such applications. Under Rule 44 of the Court of Appeal Rules, 1979, it is provided inter-alia that whenever application may be made either to the Court i.e Court of Appeal or to the High Court, In his submissions in opposition for leave to appeal, counsel for the Respondents remarked that no Notice of Appeal has been filed. He argued that no appeal can be filed without a pending Notice of Appeal. As correctly pointed out by counsel for the Applicant, counsel for the Respondents’ remark above mentioned is incorrect because the Notice of Appeal against the Ruling of this Court delivered by Mruke, J. on 30th April, 2009 was filed in Court on 12th May 2009. Having held that the refusal by this Court to grant extension of time to file Notice of Appeal is appealable to the Court of Appeal and that before lodging an appeal against such a refusal, leave of this court has to be sought by the aggrieved Party, I hold that the Respondents’ opposition to this application for leave to appeal to the Court of Appeal against the relevant Ruling of this Court has no merit. I have examined the grounds upon which the Application for leave to appeal to the Court of Appeal against the relevant Ruling of this Court is based, and I am satisfied that there are points of law that are involved in it which are worthy of consideration by the Court of Appeal of Tanzania. These points are three in number. The first one is whether there was evidence to prove that the delay in filing the Notice of Appeal was due to sufficient cause. The second one is whether it was correct for this court to hold that the Applicant had delayed for 48 days in filing the Notice of Appeal. The third one is whether the decision of this court is faulty and bad at law. Having been satisfied that there are points of law that are involved in the relevant Ruling of this Court for consideration by the Court of Appeal, I hereby grant this application for leave to appeal to the said Court against it. I make no order as to costs. A. Shangwa JUDGE 27.7.2010 Delivered in open Court this 27th day of July, 2010 in the presence of Mr. Mponda for the Applicant and Mr. Ndanzi for Mr. Kalolo for the Respondent. ----- A— *. Shangwa 27.7.2010