MISC

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM AMENDED MISC. CIVIL APPLICATION NO. 287 OF 2022 (Originating from the judgment and decree of the High Court in Civil Appeal No. 37 of 2020) BIDCO OIL AND SOAP (RUCHIRI)….…………..………………..………..APPLICANT VERSUS VEROZENT CATERING SERVICE….………………………..……………RESPONDENT Date of Last Order: 24/10/2023 Date of Ruling: 07/11/2023 RULING OF THE COURT KAFANABO, J.: This is an application for an extension of time for the applicant to apply for leave to appeal to the court of appeal against the judgment and decree of this court (Hon. Massabo, J.) pronounced on 26th November 2021. The application is made under section 11(1) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2019. The application is supported by an affidavit of Ebenezer Hans Msechu an administrative officer of the applicant. The facts of the case can be construed from the affidavit supporting the application. On 18th February 2019, the respondent instituted Civil Case No. 69 of 2019 against the applicant herein in the primary court of Sinza/Manzese for breach of contract claiming a total of Tanzania Shillings 18,726,000/=. The whole claim was granted by the primary court in its 1 decision dated 06/09/2019. Aggrieved by the decision, the applicant appealed to the district court in Civil Appeal No. 51 of 2020 where the trial court decision was upheld. Undeterred, the applicant appealed to this court through Civil Appeal No. 37 of 2020. This court (Hon. Masabo, J.) partly allowed the appeal by quashing and setting aside TZS 1,048,000/= awarded as costs for advocates. Still aggrieved, the applicant seeks to appeal to the Court of Appeal, hence this application for an extension of time for the applicant to apply for leave to appeal. Before this application made a step further the respondent, on 9th January 2023, filed a notice of the preliminary objection to the effect that: ‘By virtue of the matter being originated from the primary court, the purported application for extension of time within which to lodge application for leave to appeal to the court of appeal out of time is untenable in law as this Honourable Court has not been properly moved to entertain the matter’ Since the preliminary point of law has been raised this court is bound to determine it first. On 26th September 2023, this court ordered the preliminary objection to be determined by way of written submissions. The parties filed their submissions as per the schedule. 2 The gist of the respondent’s submission is that given that the appeal originates from the primary court, it is a third appeal and its proceedings fall under head (c) of part III of the Magistrates’ Courts Act, Cap. 11 R.E. 2019 (hereinafter referred to as the ‘MCA’). Then the applicable provision for purposes of the appeal is section 5(2)(c) and not section 11(1) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2019 (hereinafter referred to as the ‘AJA’). Briefly, the respondent is of the view that the applicant is not supposed to apply for an extension of time within which to apply for leave to appeal to the Court of Appeal. Given that this is the third appeal and originates from the primary court, the proper course is to apply for an extension of time within which to apply for certification of the point of law by the High Court as provided under section 5(2)(c) of the AJA. It was the respondent’s submission that it is wrong to apply for an extension of time to apply for leave to appeal under section 11(1) of the AJA. In support of her stance, respondent cited the cases of Happiness Charles Mayebe vs. Ezekiel Jeremiah Mbogo, Misc. Civil application No. 194 of 2020 and Happiness Charles Mayebe vs. Ezekiel Jeremiah Mbogo, Misc. Civil application No. 98 of 2021 (both unreported). 3 The applicant in responding to the submissions in support of the preliminary objection submitted that Part III (c) of the MCA does not provide about extension of time to file leave to appeal, but provides for appellate jurisdiction of the High Court in matters originating from the primary court. Therefore, invoking the same in respect of this application is a misconception of the law. The applicant submitted that this court has jurisdiction to entertain the present application under section 11(1) of the AJA. The applicant cited the case of Andrew Mseul and Others vs the National Ranching Co. Ltd (Civil Application 35 of 2018) [2020] TZHC 963 (21 May 2020) in support of his stance. After hearing the parties’ submissions, this court shall, now, determine the issue of whether this application for an extension of time within which to apply for leave to appeal is proper before this court. The submissions of the parties depart on ‘whether it was proper to bring this application as an application for extension of time to apply for leave to appeal under section 11(1) of the AJA. The said section provides that: ‘Subject to subsection (2), the High Court or, where an appeal lies from a subordinate court exercising extended powers, the subordinate court concerned, may extend the time for giving notice of intention to appeal from a judgment of the High Court or of the subordinate court 4 concerned, for making an application for leave to appeal or for a certificate that the case is a fit case for appeal, notwithstanding that the time for giving the notice or making the application has already expired.’ It is not in dispute, as submitted by the applicant that this court is clothed with jurisdiction to extend the time for making an application for leave to appeal. However, the question to be answered, is whether it is proper for the applicant to apply for an extension of time for making an application for leave to appeal. This will be answered if, first, the question of whether under the circumstances of the applicant’s case leave to appeal is required. The question is answered by section 5(2)(c) of the AJA which provides that: (2) Notwithstanding the provisions of subsection (1)- (a) N/A (b) N/A (c) no appeal shall lie against any decision or order of the High Court in any proceedings under Head (c) of Part III of the Magistrates’ Courts Act unless the High Court certifies that a point of law is involved in the decision or order; 5 Head (c) of Part III of the MCA provides for appellate and revisional jurisdiction of the High Court concerning matters originating in primary courts. This means that the section makes it clear that if the High Court makes any decision when determining a revision, or an appeal that originates from a primary court, no appeal shall lie to the Court of Appeal unless the High Court certifies that a point of law is involved in the decision or order. This means that, if you want to appeal against the decision of the High Court when exercising its appellate or revisional jurisdiction on a matter originating from the primary court leave to appeal is not a statutory requirement. However, a certificate from the High Court that point of law is involved is necessary. Hence, in the applicant’s case leave to appeal is not required. Therefore, if leave to appeal is not required, is it proper for the applicant to apply for an extension of time for making an application for leave to appeal which is not a statutory requirement? The answer to the same is, obviously, ‘No’. Then what was the applicant supposed to do under the circumstances of this case? The answer is found in section 5(2)(c) of AJA, the applicant was supposed to apply for an extension of time for making an application for the High Court to certify that a point of law is involved in the decision or order sought to be appealed against. 6 It fOllows that, this court agrees with the respondent that the application for extension of time for making an application for leave to appeal to the court of appeal for a matter that originated from a primary court is misconceived and bad in law. This was also the position of this court in Happiness Charles Mayebe vs. Ezekielleremiah Mbogo, Misc. Civil application No. 194 of 2020 and Happiness Charles Mayebe vs. Ezekielleremiah Mbogo, Misc. Civil application No. 98 of 2021. Therefore, the preliminary objection is upheld, and the application for extension of time for the applicant to file an application for leave to appeal to the court of appeal is hereby struck out. The applicant shall bear costs of ~ K. I. KAFANABO lUDGE 07/11/2023 Ruling delivered in the presence of Mr. Emmanuel Mashamba, Advocate for the applicant and in the presence of Mr. Godwin Mtandala, Director of the respondent. $,1.:0. K.I. KAFANABO lUDGE 07/11/2023 7