19961025 TZCA Dar es Salaam 1

IN THE COURT OF APPEAL OF TANZANIA f AT DAR ES SALAAM .J CIVIL APPLICATION NO. 25 OF_ 1996 In the Matter of an Intended Appeal BETWEEN DEUSDEDIT RWEBANDIZA KAIJAGE APPLICANT AND ESSO TANZANLI:\. LIMITED RESPONDENT (Application ~or Extension of time and 1eave to Appeal out of time from the decision of the High Court of Tanzania at Dar es Salaam) (B1:1beshi, J.) dated the 5th-day of June, 1995 in Civil Case No. 28 of 1981 ------- MA.:CAME_,___J .A~: This matter has a truly chequered history, some aspects of it having being tackled by a number of High Court judges, as well as by the Court of Appeal. The application now before me concerns the applicant's effort to appeal from a ruling by Bubeshi, J. dated 29th March 1996 following her other decision of 5th June 1995. When the applicant came before my learned brother Kisanga, J.Ao on 8th May this year, and wapted to apply for leave to amend his affidavit in support of his intended Notice of Motion, Kisanga, J .A. upheld a request by Mr. Kisusi, learned advocate for the respondent, for an adjournment. Mr. Kisu.si was ·afforded time t~ file an affidavit in rep~y, having already by then filed, merely, a preliminary If' •••. /2 - 2 - objection to the application. At the hearing of the present application before me the applicant decided to forgo his right to start and elected to confine himself to responding to Mr. Kisusi's submissions. Mr. Kisusi complained that the original Notice of Motion was never served on him. He merely stumbled on it at the Registry after he had been served with an amended Notice of Motion dated 3rd May· 1996. It was then that he discovered that the original affidavit had no verification. Mr. Kisusi complains also that the amendment, to include a verification, was made without first obtaining the leave of the Court. He further claims that the amended Notice of Motion subsequent to the filing of the defective affidavit was in any event itself out of time, the High Court ruling sought to be appealed against having been made on 29th 'March 1996 as aforesaid. The applicant•s response was that his application for leave to amend the Notice of Motion was lodged on 3rd May 1996, before the intended hearing on 8th May 1996 and so within time, in terms of Rule 47 of the Rules. He further submitted that he swore the affidavit in good faith and on matters true to his own knowledge and that the mere lack of verification does not render his affidavit useless. It is conceivable that the applice..nt does not really understand the central issue, or perhaps he is trying to be too clevero It is a fact that the original affidavit was defective and he evidently appreciated that as much, and that was why he sought to cure it. To that extent his Notice of Motion was wanting. What he took to Kisanga, J .A., and subsequently brought to me, was merely an !1ltendeJ! Amended Notice of Motion, the amendment being the inclusion of the verification in the new version of his affidavit. It was alright, •... /3 " - 3 - and in accordance with Rule 47, to come to Court with the proposed amendment in hand, as the applicant did; but tten where was the application for leave to amend? There was none. The 2nd May 1996 letter addressed to the Registrar of the Court of Appeal is L~deed what was enclosed was albeit only copies of the Amended Notice of M-o-tion... The proposed Amended Notice of Motion does not mention any application for }_!!:~t<?..,_,arn__~~ and I note also that the proposed Amended Notice was out of time. Further, I have found nothing to contradict Mr. Kisusi's assertion that the original Notice of Motion was never served on him - he merely came by it. I must refrain from otherwise commenting on the contents of the proposed Amended Notice. The foregoing are enough to sustain Mro Kisusi's prayer for dismissing the application. I accordingly dismiss the application, with costs. DATED at DAR }::s SALAAM ~.....' this 25th day of October, 1996. t:;· ·t. M. HAKAME JUSTICE OF APPEAL ,,/ e,1/ I certify• that' this is a true copy of the original.