19990701 TZCA Dar es Salaam1

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Before me, Mr0 Moses Maira, learned counsel who appeared for the aplicant, con-tended that the delay was unavoidable since the application could not be made without first obtaining the ruling and order applied for in order to comply with .the reqiiirerients of 0.43, r2 of the Civil Procedure Code and rule. 46(3) of the Curt Rules. An application under the former has to .be supported by an affidavit while one under the latter has to be accompnied by the order of the High Court0 Mr. Maira argued that both provisions applied in an application to the High Court', Learned'counsel for the responaent, Mr. Nustafa Chandoo, replied that rule 46(3) applied to applications to the Court of Appeal and generelly that it is not necessary to obtain the ruling before applying for leaVe t. appeal. Mr. Chandoo went further and contended that the period for ming the application has to be computed from 25/8/98, the date of the decision, and riot 7/9/98 when the decisiOn became imown, • and, lastly, that in fact there was no application for leave to /- appeal before , the High Court, but an application for enlarernent of time toinsitute the appeal, hence the present application contravened rule 44 I will begin from the end of Mr. Chandoos submissions. After hearing Mr. Maira and after perusing the chamber summons, I have no doubt that what was before the High Court was an application for leave to appeal to this Court.. The chamber summons cited rule 44 and s0 5(1)(c) of theAppellate Jurisdiction Act, 1979, which are relevant only to an application for leave to appeal, andthe further citation therein of a. 11+ of the Limitation Act, 1971, and rule 8 was for' extending the tim& for -3- that application. ,Admitedly, the wording of the prayer in the 'chamber summons was somewhat ttaiising, for it. said: That this Horiourable Court may be pleased to grant ieave to the applicant to appeal to the Court of Appeal Out of Time but if there was 'aky uncertainty about it it ought to have been retnoved.by th citation of rule 44 and s. 5(i)(c) and the fact that the period for instituting the appeal itself had not yet expired. I am satisfied that the present application is proper following thel refusal of a similar application by the High Court. As regords computtion of the period for making the application, I,share the view of the High Court that it should be from 7/9/98 when counsel for the applicant became aware of the ruling. A ruling or judgment, is delivered when it is brought, to the attention of the pasties concerne'dbut not, merely when it is sined Neither of the parties was present in court on 25/8/981 and this for no fanit of their own. As . 1 note that the ruling was to be given on notice, formal notification should have been addressed to the parties, and this was not satisfied by the issuance of a cause list. The only crucial question in this application is whether there was sufficient cause for not making the application on or before 21/9/98. Mr. Maira thinks, that the applicant had to comply with both 0. 43, r 0 2 and rule 6(3) therefore," had to obtain the High Courts s ruling and drawn or.der I do not thin1 so. In the •first place,. Mr. 'Chandoo is correct in saying that rule *6(3) applies only to 'applications to the Court of 'Appeal. ' That is when an applicant is required to annex to the application a copy of the order,of the High Court refusing a similar application, apart from the decision agains-t whdch it is desired to appeal. - , -s 0/4 The provision does not apply td applications before the High Court. Furthermore, it does not appear to me that compliance with 0. 4 3, r.2 necessarilyreqiires possession of the High proceedings, ruling and drawn order. I think it is not correct to say, as Mr. Mairá did, that the affidavi required under the rule has to state reasons for the intended appeal. The correct position appears to be that the affidavit shouldtate reasons for the failure to make an infor'mal application0 In the instant case there was good reason for that failure0 Moreover, the High Court may, under therule, disp ense with an affidavit altogether, and entertain an application made orally. In all considerations, therefore, it was not necessary f or the applicant to obtain the proceedings ruling and drawn order of the High Court in order to apply for leave to appeal. lagree with Mr. Chaidoo that the applicatio could have been made on 7/9/98 a. the time of lodging the notice of appeal, but the omission apparently arose from a misapprehension of the law. A misinterpretation of the law, like ignorance of law, is not an excusable cause for delay in doing an act directed to be done within ag1vn time. I thus find no reason leave alone sufficient reason, for granting the application. • Mr. Naira also argued that probate and administration suit are special in themselves, perhaps with a view that I should depart from the rules, but he did not say how0 And sihce I was not addressed on the matter, I do not have to hazard the circumstances in which the Court may depart from the rules. It remains to say that since leave to appeal cannot be granted, the • prayer for extension of time. to lodge the. appeal similarly fails, • The application is dismissed with costs. I 0000 -5- DAThD at DAR ES SALAAN this 1st day of July, .1999.