20161124 TZCA Dar es Salaam

:n~ TiHIE iOOURT OF .AiPIPEAIL o:F TANZANIA AT DAR ES SALAAM i C:ML APPLiiCATION NO. 248 OF 201'6 DAIR ES SA.LAAM INSTITUTE O:F TiECHNOLOGY ,. ............... APPLICANT V!ERSUS ID:EUSiD:E:[UT MUGASHA ,...,.. .... .,.. , .. ,.. ............................... .,. R:ESPONDENT {A1pp!iicatfon ·~,or Ext,ension ,of thne within which to fl.le record of appeal from the declsiion ,of th!e High Court of Tanzaniia at Dar es Salaam) (Nyer,ere, J.) dated the 29 tjh day of Aprrl, 2016 in Ciivil R,evision No . .33 of 2011 RULING .21st Novei-nber & 1st December, .2016 MJASIRI, J. A.:: By a notiice of motiion fi!led in this Court on August 16, 2016 under Rules 10 and 48(1) and (2) of Tanzania Court of Appeal Rules, 2009 (the Court Rules), the appHcant, Dar ,es Salaam Institute of Technology is seeking for extension of time to frle the record of appeal, the written submissions and omitted documents in the record of appeal. ·The application is supported by the affidavit of Datiius Novath, the Lega:1 Officer of Kanywanyi Mbakileki, Mtaki and INditi Advocates. At the hearing of the application, the applicant was represented by Mr. INovatus Rweyemamu, learned advocate and the respondent had the 1 -· servioes of Mr. Dennis Msafiri, learned advocate. Both counsel asked the i - Court to adopt the affidavit and affidavit in rep!ly filled in court as part of i their submissions.. The following is the sequence of events surrounding the application. The app!Jication arises from Oivil Appea I No . 106 of 2016 between the same 1 parties. After the appeall was filed, the respondent on August 12, 2016 filed a notice of prelliiminary objection seeking an order to strike out the appeal for being time barred. The applicant then filed the instant application for extension of time on August 16, 2016. Paragraphs 7 to 9 of the affidavit in rep'ly are reproduced as foUows:- 117. That having found that there was no certificate of delay on .the record of appeal after computing the sixty days period allowable for institution of an appeal I discovered that the appeal lodged on 1!Jh Julr✓ 2016 was so lodged beyond 60 days as it was lodged one day beyond the prescribed time. 8. That I wa1tedfor a period of fourteen {14) days to see if the appellant could include a certificate of delay on the record hoping that it was obtained from the High Court. 2 9.. That as nothing vt1as forthcoming/ on J.:!h August✓ 2016 l lodged a notice of preliminary objection asserting that the appeal was time - barred for reason that it was not instituted within 60 days but instead it was lodged on the 61 st day. A copy of the notice of preliminary objection filed is annexed hereto marked DM- l // forming party of the affidavit. // 11 The cruc,ial issue for determinabon and decision is whether or not the application for extension of time was pre-empted by the notice of preliminary objection. Mr . Rweyemamu was adamant that his application for extension of time did not intend to defeat the preHminary objection.. According to him, his appHcation was ready on August 12, 2016 but was endorsed by the Court on August 16, 2016. Mr. IMsafiri strongly argued that the application was pre-empted by the notiGe of preliminary objection, and was therefore made to defeat the pre:iimiinary objection. He submitted that this is not permitted under the law. He relied on luma Ibrahim Mtale v K.G. Karmali (1983) TLR 50. The !law is sett,led. A pa.rty cannot be permitted to defeat a preliminary objectiion. In Juma Ibrahim Mtale (supra) it was held thus : 3 " .. "A notice of motion seeking extension of time to file a supplementary recordofappeal is no answer to an objection regarding the competency of appeal. 11 The legal position ,is that once a notice of preliminary objection is lodged, the time to remedy the deficiency complained of lapses. See- lNda,w,e!k:a 'V.. Alllly Saidi Mtera, Civ1i 1App!lication No. 5 of 1999 (unreported). 1 This means, it was no longer open to the appelilant to remedy the deficiency complained of, in this case by filing an application for extension of time to ansv1,rer to the complaint that the appea!I was out of time. See - Bahadurali Shamji :and Another v The Tr,easury Regiistrar and 4 Others, Civil A!ppeal No . 4 of 2003 (unreported). In Jla 1u1ma G,enerall Supp'lies Limited v Stanbic (T) Ltd, Civil 1 1 Appeal! 'No . 34 of 2010 ( unrepo:rted) reforence was made to the case of Th,e Minlstier ·fior ilabour and Youth Develo:p:ment and Another v Gaspar swai and 67 Others, the Court observed as under:- nwhere a preliminary objection to an appeal has been lodged in accordance with Rule 100 (now 107(1)✓) it is our view improper for the appellant to seek to defeat the objection by acts designed to 4 remo1te its basis. Ifsuch practice were allowed. Rule .", 100' now 107(1), woutd lose purpose and meaning and decency ofproceedings would be in jeopardy. " See - Twiga IPa1pers !P1rodu,cts Ltd v th e P,erimanent Secretary Ministry 1 of Works and anoth·er,. Oivil Application INo. 156 of 2007 (unreported). Given the circumstances and for the foregoing reasons the application is hereby dism issed with costs . 1 Order aooording1ly . DATED at DAR IES SALAAM this 24th day of November, 2016. S.. IMJASIRI JUSTICE OF .A!PIPiEAIL I certify that this is a true copy of the ori9inal. E.F. ;fZU I IDIEIPUTY REG.I TRAR ' COURT OF A,!P' · AL ~ -~ --!~?' 5