20061220 TZCA Dar es Salaam

.C' IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM:RAMADHANI, J.A.;MUNUO, J.A.;And RUTAKANGWA, J.A.) CIVIL REFERENCE NO. 17 OF 2005 BETWEEN DAVID MWAKIKUNGA ... APPELLANT AND MZUMBE UNIVERSITY} COUNCIL {SUCCESSOR IN TITLE} RESPONDENT OF GOVERNING BODY) } (Reference from the ruling of a single judge of the Court of Appeal of Tanzania at Dar es Salaam) (Kaj~AJ dated the 15th day of August, 2005 in Civil Application No. 103 of 2004 RULING 4 & 28 December, 2006 RAMADHANI, J. A.: The applicant, David Mwakikunga, had unsuccessfully applied in the High Court (IHEMA, J.) for leave to appeal to this Court and his second bite before a single judge of this Court (KAJI, J. A.) was equally sour. Our learned brother decided that the applicant was not properly before him as there was no copy of the order of the High Court refusing leave to appeal. The applicant is now making a third and final attempt in this reference. Before us the applicant was in person and he said that he had applied for a decree and order of IHEMA, J. but he was not supplied 2 {-... \._ with the same. However, he pointed out that he had attached to the application the ruling of the learned Judge. The applicant lamented that the Court did not give him time to obtain a copy of that order. On behalf of the respondent was Mr. Mpaya Kamara, learned counsel. He reiterated that a copy of the order had not been annexed as required by Rule 46(3) and that only a copy of the ruling was attached as was confessed by the applicant in paragraph 11 of his affidavit. The learned advocate pointed out that the applicant did not ask for time to secure a copy of the order but that before KAJI, J. A. he merely pleaded ignorance of that requirement. In reply the applicant wanted to make a mountain out of a mole hill by pointing out that the advocate before the Court (KAJI, J. A.) raised no objection to the grant of leave to appeal but that it was the learned judge who came up with the issue of the absence of a copy of the order of IHEMA, J. refusing leave to appeal. It is true that Mr. Kamara before KAJI, J. A. categorically stated that he had no objection to the grant of leave to appeal and that it was KAJI, J. A. who, suo motu, raised the issue of order. But we ask: Was the single Judge wrong in doing so? We are positive that he was not. There are a number of decisions of this Court where we have religiously enforced Rule 46(3). In fact this Court filled the lacunae in 3 • C'\ that sub-rule when in Alex Maganga v. Director Msimbazi Centre, Civil Application No. 81 of 2001, the Court provided: ... the words "order of the High Court" in the sub-rule mean an extracted order of the High Court ... As we cannot fault our learned brother, this reference cannot survive and is hereby dismissed with costs. DATED at DAR ES SALAAM this 20 th day of December, 2006. A. S. L. RAMADHANI JUSTICE OF APPEAL E.N.MUNUO JUSTICE OF APPEAL E. M. RUTAKANGWA \, \ . JUSTICE OF APPEAL .~~=:..........---~. ·, ·-·. _/4/. ·certify that this is a true copy of the original.