20071206 TZCA Zanzibar

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR ZNZ CIVIL APPLICATION 08 OF 2006 BARAZA LA WADHAMINI WA CCM ..................................... APPLICANT VERSUS MOHAMED JUSSA ALAIYA ................ ~ .....................•....... RESPONDENT (Appeal from the decision of the High Court of Zanzibar at Vuga) (Kayange, RM - Extended Jurisdiction) dated the 04th May, 2006 in HC Civil Appeal No. 13 of 2004 RULING 3 & 6 December 2007 _,/' KALEGEYA, J.A.: The Applicant, Baraza la Wadhamini wa CCM, by a Notice of Motion filed on 26th September, 2006 in terms of Rule 82 of the Court of Appeal Rules, 1979, is seeking to strike out the Respondent's notice of appeal lodged in the High Court on 11th May, 2006. The said notice of appeal targeted to challenge the decision of the High Court (Yesaya Kayange - Extended Jurisdiction) in Civil Appeal No. 30 of 2005 handed down on 4th May, 2006. 2 . , The Applicant is represented by Mr. Mbwezeleni and Mr. Mnkonje, learned counsel, while the Respondent is on his own. The application is supported by Mr. Mnkonje's affidavit whose key paragraphs 2 - 4 state as under:-, ''2. That the judgment in High Court Civil Appeal No. 30 of 2005 which is the subject matter of the intended appeal was delivered on the .fh day of May, 2006 and the Respondent herein filed his Notice of Appeal on the 1 fh day of May, 2006 and served the same to the Applicant's advocates. A copy of the Notice of Appeal and a copy of the letter requesting for proceedings, judgment and decree are attached herewith marked 'CCM 1 'and 'CCM 2' as exhibits to this affidavit. 3. That the original matter, started in the Rent Restriction Board Application No. 13 of 2004 and High Court Civil Appeal No. 30 of 2005 was the first appeal and the appeal to the Court will be a second appeal, which requires leave to appeal. 4. That the Applicant herein who is the Respondent in the intended appeal and her advocates are not acquainted with any information that leave to appeal has been applied for and granted to the would be appellant either by the High Court or by the Court of Appeal of Tanzania. We have never been served with .... 3 such an application. The intended Appellant had failed to take an essential step in the proceedings as required." Submitting in support of the application, Mr. Mnkonje adopted the contents of his affidavit and added that the Respondent has already gone a step further and filed Civil Appeal No. 77 of 2007 on 23 rd January, 2007, which step however does not change the legal status. Mr. Mnkonje insisted that as the notice of appeal and the subsequent appeal are intended to impugn a decision on 2nd appeal, the matter having originated from the Rent Restriction Board, a decision made in Application No. 13 of 2004 and which was appealed against in (HC) Civil Appeal No. 30 of 2006, in terms of S. 5 (1) (C) of the Appellate Jurisdiction Act, 1979, a further appeal can only be pursued with leave either of the High Court or the Court itself. The learned Counsel concluded by making reference to - Mechanical Installation and Engineering Co. Ltd Vs Abubakar Ndenza Maporo and other [1987] T.L.R 44; Atlantic Electric Ltd. Vs Morogoro Region Cooperative Union (1984) T.L.R 12; Jose X. • 4 Ferreira vs Mbarak Salum [1994] T.L.R 214; Augustus N. And D.G. Halikas vs M.K. Mithani and Mehboob Yusufu Ali Manji ' [1984] T.L.R 75; Enock M. Chacha vs Manager, NBC Tarime [1995] T.L.R 270 and implored the Court to strike out the Notice of Appeal and so is the appeal itself for incompetency. I Mr. Mohamed Jussa Alaiya, the Respondent, as a layman, did not have much to say. He genuinely lamented that he was not I aware nor did the High Court make him aware of the requirement to I secure leave first; that he duly filed the Notice and so is the appeal without any precautionary word or related from the Court Clerks. He ' I stated that not only was he surprised by the seemingly ignorance of I the Court Clerks on the requirement ~ut also on a further step of the Court which has fixed the appeal for _hearing on ih December, 2007. He prayed that the omission be ignored and the appeal proceed as scheduled. 5 In reply, Mr. Mnkonje simply reiterated his main submissions adding that this is a legal and procedural requirement that cannot be ignored. While I sympathise with the Respondent because he is a layman there is nothing I can do to stand in his favour in view of the application at hand. Rule 82 upon which the application was made is very clear. It provides: "82. A person on whom a notice of appeal has been served may at any time, either before or after the institution of the appeal, apply to the Court to strike out the notice or the appeal, as the case may be on the ground that no appeal lies or that some essentialstep in the proceedings has not been taken or has not been taken within the prescribed time. " Section 5 of the Appellate Jurisdiction Act, 1979 provides instances in which appeals can be preferred from the High Court to 6 the Court. Subsection (1) (a) and (b) of the said section prescribe direct appealable decisions/orders of the High Court when acting in its original jurisdiction. Subsection 1 (c) and 2 prescribed appealable decisions/orders of the High Court with leave either of the High Court or the Court. On the facts at hand, subsection 2 is not relevant. \ What is relevant and relied upon is subsection (1) (c). Section 5 ( 1) ( c) provides: ''5 (1) In civil proceedings, except where any other law for the time being in force provides otherwise, an appeal shall lie to the Court of Appeal - (a) (b) (c) With the leave of the High Court or of the Court of Appeal, against every other decree, order, judgement, decision or finding of the High Court ......... " It is not disputed that the decision which the Respondent sought to challenge is a decision of the High Court in its appellate jurisdiction. It is a decision in respect of an appeal against a decision 7 of the Rent Restriction Board. The Respondent's appeal to this Court would therefore be a second appeal. As rightly pointed out by Mr. Mnkonje, this type of an appeal falls squarely under S. 5 (1) (c) of the Appellate Jurisdiction Act, 1979 and for which leave has to be sought and secured either from the High Court informally at the time of handing down the decision or by way of a chamber summons \ (Rule 43 (a) of the Court of Appeal Rules, 1979) or where the High Court has refused to grant it, by the Court (Rule 43 (b)). Such application has first to be made to the High Court (Rule 44). Respondent has conceded that he has not secured the requisite leave let alone applying for it. And what is vividly discerned from his reaction is ignorance of the required procedure. Ignorance of the law however is no defence. In the upshot, I have but to hold that the application is meritorious. In Harman Singh Bhoghal t/a Harman Sing & Co. Ltd. versus ladva Karsan (1953) 20 EACA 17 at page 18 the Court of Appeal for Eastern Africa. made a pertinent observation thus:- 8 • ' ''It is well settled law that a right of appeal can only be founded on a statute and that any party who seeks to avail himself of the right must strictly comply with the conditions prescribed by the statute. " In our case, the law has provided that a party who seeks to impugn a decision of the High Court on 2nd appeal to this Court, as is the case with Respondent in relation to the decision handed down on 4th May, 2006 in (HC) Civil Appeal No. 30 of 2006, has to seek and secure leave first. That was not done. Ignorance of the Respondent and failure by the High Court Registry to sound him on this vital legal requirement do not correct the defect. All the decisions referred to by Mr. Mnkonje save the Augustus case which concerned an application for leave to the Court are relevant to the facts at hand. Failure to secure leave leads to the notice being struck out. Mr. Mnkonje has submitted that the notice of appeal should be struck out as well as the appeal already instituted. It has been unchallengedly pointed out that Civil Appeal No. 77 of 2006 was instituted on 23 rd January, 2007, subsequent to the filing of the 9 present application, on 26th September, 2006. It is no wonder therefore that the notice of motion referred only to the notice of appeal. In this scenario, apart from other legal factors, there is no way I can make an order on the appeal which is not before me. My order can only be confined to the application before me. For reasons discussed above, the notice of appeal is declared incompetent for the Respondent's failure to take an essential step in the proceedings in terms of Rule 82 of the Court of Appeal Rules, 1979 and it is struck out accordingly. Respondent is condemned in costs. DATED at ZANZIBAR this 5th day of December, 2007. L. B. KALEGEYA JUSTICE OF APPEAL