19970825 TZCA Dar es Salaam

' .. ,,. IN .THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM ,,,. ..... (CORAM: LUBUVA, J.A., SAMATTA 1 J.A. 1 And MROSO, Ag. J.A.} CIVIL REFERENCE NO. 12 OF 1997 BETWEEN DR. WILLIAM SHIJA • • • . . . . . APPLICANT AND DR. FORTUNATUS LWANYANTIKA MASHA• • RESPONDENT (Reference from the' Ruling of a Single • 'Judge of the Court of Appeal of Tanzania 1 at Dar es Salaam) · ( Mf a111-a·,-J:;.':)·- _.,.--------- d~ s t day of May, 1997 in \ Civil Application No. 6 of 1,97 R UL I N G LUBUVA, J.A.: In the Cou•"'· of Appeal. MZA. Civil Application No. 6 of 1,Q97, Dr. Fortunatus Lwanyantika Masha, the respondent had applied for extension of time within which to file the appeal. The learned ..,, ...,..... , .... 4. :~;;. --i..l' single judge (Mfalila, .J.A.) granted the application in terms ·Yy('I.;,.'' of the following order t '• •"t ..~ :~,: ..... ~> ~ .- ·••11 \ ..;,-,. ~' ~, ,,r Ca) The applicant should file the notice I• .. '•,, of appeal fourteen days from the date of this ruling. . .... .... ~... .:: I.' (b) Thereafter the processing of the appeal 1- ,· ~' ,f ., . ·t· ' including the time table will be in \ "· ~ A' J • •~ • ~ '~'I:. ,.~ ·,""'f ~ ..- accordance with the rules of this Court. The applicant being dissatisfied with that decision has • ,,. 2 events in the case its beckground is necessary. Br~f'.ly it is as follows: In Civil Appeal No. 43 of 1996---to this Court the appeal was struck out on th~.ground that it was incompetent because the extracted order was not annexed. The Court directed that the respondent who was the appellant could, if he so wished, institute the appeal afresh by making the appropriate application before the .High Court. Following that decision, the respondent filed Miscellaneous Civil Cause No. 15 of 1995 in the High Court at Mwanza. In that application the respondent sought to have the extension of time within which to appeal to this Court against the ruling of the High Court (Chipeta, J.). The learned judge dealing with that ·application held that the High Court had no power to grant extension of time to appeal in a. matter where· ·the. ~.,.,. · ·• right of appeal to this Court lies as a matter of right. matter had to be dealt with by the Court of Appeal, the learned; ..,. judge further held. Consequently, the matter was brought up to this Court in .MZA;· ·civil Application No. 6 of 1997. Granting the application, the learned single judge of this Court held that the delay on the part of the respondent was technical, not actual. The learned single judge took the view that the original appeal though incompetent was lodged in time. In the view of the learned single jud~e, the respondent acted· immediately after the Court had struck out the first appeal. On these grounds,- the learned single judge was convinced· that sufficient reason had been given to warrant the extension The application was allowed. Before us Mr. Mwale, learned Counsel, appeared for the applicant. On the other hand Mr. Makani and Mr. Muhula, ••• /3 3 counsel, advocated for the first respondent. ., The second respondent, the Hon.our able the Attorney General was represented ;l'.w· Mr. Werema, learned Senior state Attorney. Mr. Mwale vehemently submitted that .the application before the learned single judge for extension pf time to file the appeal was inc9mpetent because it lacked the, p~e-requisite notice of' intention to appeal. This, he said ~as because with the striking out of ·the appeal by this Court in c~i Appeal No. 43 of 1996, the notice of appeal also disappeared. And so, Mr. Mwale observed, in the absence of the notice of appeal, the application before the learned single judge was incompetent,~nd therefore the proceedings were a nullity. The order by the learned Nr single judge,. Mwale further submitted, arising from such proceedings A is incomp~tent, it should be set aside •. In support of his submission, , , Mr. Mwale referred us to the deciSion of this Court in the case of '·1'~ Arusha International Conference Centre V Damas Augustine Ndemasi . Kavishe, Civil Appeal No., 34· of 1988 (unreported). Responding to the submission by Mr. Mwale, Mr. Makani, learned Counsel for the first respondent strongly maintained that the application before the learned single judge was competent. He stated that the issue of the competence of the application was not raised before the single judge and therefore it was not open to be raised at this stage on reference. The only issue before the single judge was an application for extension of time within which to file th~ appeal, Mr. Makani urged. With regard to the notice of appeal, it was the view of Mr. Makani that once an application for extension of time to file the appeal was lodged, by necessary implication there was also an application for extension of time i~. which to file notice of appeal. If we understood Mr. Makani properly, he seemed to be of the view- that on account of ••• /4 4 application regarding notice, the learned single judge granted a· •· relief which was not sought. .,. That is, ·the first -respondent was granted extension of fourteen days within which to file the notice· of appeal. For the second respondent, Mr. Werema, learned Senior State ., :-- Attorney while con~eding that the application before the single judge lacked the requisite notice of appeal, still he insisted that as the matter involved an election petition which is .of great public interest, the learned single judge was properly vested with ~ ',· jurisdiction to deal with the application • .r~ With respect, we. are in agreement with Mr. Mwale -that when f" Ct ,. Civil Appeal No. 43 of 199, was struck out, the notice of appeal w_as also struck out. In that situation, it is our view that if it t is still so desired to appeal, a fresh application has to be filed ., i . in the Hi!h Court seeking extension of time in which to give .. notic::e· .. _·;.,:.," ·· . . t of appeal. In the case of_ Arusha International Conference Centre ·v: Damas Augustine Ndemasi Kavishe 1 Civil Appeal No. 34 of 1988 (not yet reported) ihis Court had occasion to consider .the effect of striking out an appeal. In that case it was stated: lI "The application for extension of time t. to file the memorandum and record of i appeal presuposes that there is already ..•·f ' \ / a notice of appeal ;n existence. Dut the notice of appeal which brought into being the appeal which has just·beea struck out, disappeared with the striking out of that appeal." In this case, as pointed out by Mr. Makani, learned Counsel,· it is apparent from the record that the issue of jurisniction·.and l l :1 ••• /5 5 competence of the application before the learned single judge was •· hot raised at the hearing of the application~ It:_;ems clear to ·Us that the complaint before the learned single judge was that ' the application was incompetent because rule 8 was not cited· in the heading of the notice of motion. On this, the learned single judge ruled that, that din not affect the validity of the application. We can see no ground for faulting the judge on that. Otherwise the learned single judge did not have the benefit of hearing the views of _the learned Counsel for either of the parties on the issue of I· jurisdiction. For that reason, the application was determined .I . '· jurisdiction as such. without addressing the question of However, considering the fact that the Court's proceedings are governed by - the Court of Appeal Rules, 1979, it is our view that it does not ~· matter whether the issue of jurisdiction was raised at the hearing . ;, •;.,. , ~ of the application before the single judge. We think the matter . was properly raised at the hearing of this reference before us in !<· order to ensure that the mandatory .requirement of the rules ..•. , ...., regarding the processing of appeals was complied with. As it turned II ~ 1 out in this case, the notice of appeal, a necessary requirement .. ... ,\ under rule 76 which was lacking would not have come to light if l the matter was not raised in the Court. For that reason, and with due respect, we do not accept Mr. Makani's submission that there was an implied application for extension of time to file notice of appeal. This is because, in situations such as this where, I• rule 76 of the Court's rules explicitly provides for notice of appeal as a necessary condition, compliance with it cannot be .. l. attained by implication. It has to be aone in fact and nothing ·r· ' . .·, short of that. In here, the application before the learned single judge was· filed before an application for extension of " ••• /6 .' t l ' 6 time to give notice of appeal had been made in the High Court. This fact apparently the learned single judge realis~ •·when he .,,.. granted an extension of ~ourteen days in which to file notice of appeal, a relief which was not sought in the application. In the r. circumstances, we do not think that Mr. Makani's assertion on implied notice of appeal does in any way improve the applicant's case. On the other hand, even if Mr. Makani's submission that th.ere was an implied application for extension of time in which to file notice of appeal is accepted, we think such an implied application, if any, would still be incompetent. The reason is that in terms of the provisions of Section 11 (1) of the Appellate Jurisdiction Act 1979 and ruie 8 of the Court• s rules, this Court and the High Court have concurrent jurisdiction to grant extension of time to give notice of appeal. However, under rule 44, the application for extension of time shall in the first instance be made to the High Court. In the instant case, no such application had been made to the High Court. Therefore, the matter before the learned single judge was incompetent for non-compliance with rule 44. That is, the Court had no jurisdiction to entertain the application which had not satisfied '; the conditions set out under this rule. In somewhat similar circumstances, in the case of The Director of Public Prosecutions V Priska Asha Kwambaza, Criminal Reference No. 1 of 1991 ' .. ' (unreported) this Court held that as the conditions under rule 44 l were not fulfilled, the learned single judge wrongly assumed t i jurisdiction. In this case as the application was decided without addressing the issue of jurisdiction, with respect, we think if the learned single judge had done so, he would have come "lt,ib -this conclusion. 7 Lack of jurisdiction alone would be sufficient.~o dispose of this reference. But Mr. Mwale, learned Counsel had" gone further in his submis.sion before us. He contended that in order for the Court to exercise its discretion judiciously under rule 8 to enlarge time to appeal sufficient reason should be shown to explain the delay~ In this case, Mr. Mwale urged, no reason let ;._ alone sufficient reason, had been shown by the· applicant to explain the delay. Mr. Mwale went on in.his submission, the distinction drawn by the learned single judge between technical (ffe : I and actual delay did not in his view, amount to sufficient reason. t The delay in instituting the appeal anci _seeking extention of time I. l for filing notice of appeal was due to the negligence of the ~. :C applicant's Counsel which is no sufficient reason, Mr. Mwale (j / emphasized. Mr. Werema learned Senior State Attorney also conceded that no sufficient reason had been advanced to explain the delay. With regard to the merits of the application, Mr. Makani ardently maintained that there was no negligence in connection with the application for extension of time either before the single .o judge of this Court or in the High Court at Mwanza. He sa~d, it 1- f was in connection with Civil Appeal No. 43 of 1996 in this Court to which negligence could be attributed o"n account of non-inclus'ion of an extracted order. Following the Court's decision in striking I out Civil Appeal No. 43 of 1996, Mr. Makani submitted, the ~,~ ,. ,. applicant promptly took action. That is, the application in the High Court at Mwanza and then the application before the single judge, the subject of this reference were filed, Mr. Makani .,.. observed. .., . 8 We have given anxious consideration to these submissions on whether sufficient reason had been given to warrant j;he•• extension ,.,,. .. -"' of time. It is common knowledge that it is a matter of discretion "'-t,, on the part of the Court to extend the time in which to fj.le the .t I appeal or notice of appeal. That such discretion is to be exercised judicially is also elementary. It is however, to be observed that in the exercise. of such power, the requisite condition is that .. sufficient reason is to be given. Dealing with the application for extension of time in which to file the appeal the learned single judge held that the delay was technical and that the applicant acted 1111mediately after the pronouncement of the ruling of t:he Court striking out the appeal. Apparently, in an endeavour J.' •· to comply with the direction of this Court to institute the appeal afresh by an appropriate application before the High Court, the first respondent filed a wrong application in ·the High Court at M./anza. That is, h~ filed an application for extension of time to .' '.'.; I appeal to this Court. That was, as correctly stated by Mr. Mwale I .i' ' :. i~·- ,. t:~~ <:,;: I (· a wrong application. It is common ground that an application of that nature is filed in this Court. The appropriate application .. I :·, envisaged to be filed in the High Court was an application for h: '. 1· .... _. extension of time in which to file notice of appeal. Once that_· .:~/ .. . "' ._ .. ~ application is granted in the High Cou.1:t, then the application for .... "11!: - -·~~~l ~ C exte~sion of time to appeal before a single judge would be filed. ·"'1- ...., ~ ... ,, ( I' As it happened, the application to the single judge of this Court· .... t ( was filed before the appropriate application was made before the t ' High Court and granted. Thus, the delay was caused by the wrong ..,,·t . application filed in the High Court. This, we are ·convinced, is a clear manifestation of negligence on the part of Counsel. In · · \ i- our view, such negligence on the part of the Counsel for the first. ••• /9 •i -- 9 respondent goes to the very root of the matter, it cannot be regarded as a mere slip. .. On a number of occasions, ~is Court has held that negligence on the part of Counsel is not sufficient reason· for extending time uhder rule 8, See the followitig among others: (1) Maulidi Juma V Abdalla Juma. Civil Application No. 20 of 1988 (unreported), ' I .• (2) Kighoma Ali Malima V Abas Yusuf '.'·: t 0 Mwingamno, Civil Application No. 5 ,·, ''·l of 1987 (unreported). The Court of .l Appeal for Eastern Africa had also : .! dealt with this aspect in the case of shah Hemra 1 Bharmas and Brothers fl • ·., t I I 1· (j V Santosh Kumar wf..o J.N. Bhola (1961) E. A. 679. ~ ( ' l.. :- I I Applying the principle enunciated in these cases to the instant ., ·'f case, we are with respect, satisfied· that the negligence on the part of the Counsel for the first respondent in filing wrong • applications which caused the delay cannot constitute sufficient reason. In our understanding, what featured prominently before the learned single juclge was the fact that the wrong appl~cat~on to the High Court . ·. was filed immediately. after this . : Court struck out the appeal and that the delay in filing the · application which was before him was technical. Had the learned single judge taken into account the fact that it was the Counsel's ac·t of filing wrong applications which caused the delay, we think he would well have come to a different decision. • •• /10 • 10 In the resultj and for the foregoing reasons we a.;l·•· resolutely of the v.ie\.l that the leai:ned single judge dealt wit~ ah in~?mpetent application which did not comply with the Court's 1 rules 44 ahd 7l. Consequently, the proceedings before the learned single judge were a nullity. J Accordingly, we allow the reference and set aside the order of the learned single Judge dated 21st· '.\• ..... May,-1997. The applicant is awarded costs for this reference. ' i "\ DATED at DAR ES SALAAM this 25th day of -August, 1997. o.z. LUBUVA JUSTICE OF APPEAL B.A. SAMATTA .. JUSTICE OF APPEAL ' . " " " • MROSO Ag. JUSTICE OF APPEAL this is a true copy of the original. r--~.. :. -.----, M. S ;1 AN ,ALI )·_ DEPUTY REGISTRAR