20100302 TZCA Dar es salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MUNUO, ].A., KIMARO, J.A. AND MJASIRI, J.A) CIVIL REFFERENCE NO. 1 OF 2007 I DD SEIV1VUA 1ISAN,GI .......................................................APPELI..AItIT VERSUS THE LIQUIDATOR OF TANZANIA CROWN COCK COMPANY LTD. AND ANOTHER ...................................... RESPONDENTS (Reference from the Ruling of a single judge Msoffe J.A, given on 16t11 day of November, 2006 Tanzania at Dares salaam) (Msoffe, J.A) dated the 16th day of November, 2006) In Civil Application NO. 100 OF 2006) RULING OF THE COURT MUNUO, J.A.: Mr. Rwebangira, learned advocate for the respondent, filed a preliminary objection under Rule 4 (2) © of the Tanzania Court of Appeal Rules, 2009, which states verbatim: 1 4 (1) The practice and procedure of the court in connection with appeals, intended appeals and revisions from the High Court, and the practice and procedure of the High Court and the tribunals to the Court shall be as prescribed in these Rules or any other written law, but the Court may at any time, direct a departure from these Rules in any case in which this is required in the interest of justice. (2) Where it is necessary to make an order for the purpose of ............................ ........................... © preventing an abuse of the process of the Court, the Court may, on application or on its motion, give directions as to the procedure to be adopted or make any other order which it considers necessary. The gist of the preliminary objection is that the reference is hopelessly time barred under the provisions of Rule 62 (1) of the Tanzania Court of Appeal Rules, 2009. Counsel for the respondent, contended that the Reference is time barred by forty days. He observed that while the decision of the single justice was delivered on the 16th November, 2006, the Reference was not filed within 7 days as stipulated under the provisions of Rule 57 (1) of the Tanzania Court of Appeal Rules, 1979 which are in parimateria with the current Rule 62 (1) of the Tanzania Court of Appeal Rules, 2009. Counsel for the respondent cited the case of Naibu Katibu Mkuu (CCM) versus Mohamed Ibrahim Versi and Sons Civil Reference No. 5 of 2003, Court of Appeal of Tanzania, Zanzibar, at (unreported), wherein the court struck out an application which was filed two days out of time. In the said application, the Court observed, and we quote: '....... Two, that in any case, the application is time barred for being filed out of the 7 days period prescribed under Rule 57 (1) of the Court Rules. We will begin with the question whether the application before us is time barred. There is no dispute that the Revision of the single judge was given on 2711012003. It is also not in dispute that the reference was filed on 1211112003 vide receipt No. 00152794 of that date. It will, therefore, be evident that when the reference was filed on the 1211112003, it was already time barred in terms of the period prescribed under Rule 57 (1) of the Court Rules, 1979. Without wasting the Court's time, Mr. Msemwa readily 3 conceded that the application is time barred on account of the above fact." Mr. Makange, learned advocate for the applicant, contended that the preliminary objection was brought under the wrong provisions of the law so it is not properly before the Court so it ought to be struck off with costs. The issue before us is whether the Reference is time barred. We note that the Reference was correctly brought under the provisions of Rules 4 (2) (a) of the Tanzania Court of Appeal Rules, 2009. With regard to the preliminary objection, the single justice's decision was delivered on the 16th day of November, 2006. Hence, under the provisions of Rule 62(1), the applicant, if dissatisfied, could apply for reference within a period of seven days, from the date of the delivery of the decision. Rule 62(1) (b) of the Court of Appeal Rules, states verbatim: "62(1) where any person is dissatisfied with the decision of a single Justice exercising the powers conferred by 11 article 123 of the Constitution, he may apply informally to the Justice at the time when the decision is given or by writing, to the Registrar within seven days after the decision of the Justice. in any criniinal................... In any civil matter, to have any order, direction or decision of a single Justice varied, discharged or reversed by the Court. (2) At the hearing by the Court of an application previously decided by a single Justice, no additional evidence shall be adduced except with the leave of the Court." We are settled in our minds that in terms of Rule 62(1) of the Court of Appeal Rules, 2009 since the applicant was dissatisfied with the decision of the single Justice, he should either have: 5 Orally applied upon the delivery of the decision on the 16th day of November, 2006 to file a reference. Had the applicant done so, the record would have reflected the same. or The Applicant could have written to the Registrar expressing his intention to apply for a reference. This the applicant had to do within seven days from the date of the delivery of the decision, i.e. before or by the 23rd day of November, 2006. As it was, the applicant neither orally so applied nor wrote a letter to the Registrar within a period of seven days under the then applicable Rule 57(1) of the repealed Court of Appeal Rules, 1979 which Rule 57(1) has now been repealed and replaced by Rule 62(1) of the Tanzania Court of Appeal Rules, 2009. We find support in the case cited by Mr. Rwebaringa for in that case, the 2 days delay caused the reference to be struck off. We find further support in the case of Mrs. KamizAbduilah M. D. Kermali versus the Registrar of Buildings and Miss Hawa Bayona (1988) TLR 1999 (C.A) wherein the Court held :- "... where delay in instituting an appeal is caused by good reasons other than the time taken in preparing the record of appeal, a prudent party in the proceedings may safeguard its position by applying for extension of the period prescribed for the doing of any act under Rule 8 of the Tanzania Court of Appeal Rules/' In this reference, the applicant neither made an oral application at the time of the delivery of the decision complained of, nor wrote a letter to the Registrar within a period of seven days indicating that he would apply for a reference. Instead, the applicant applied for a 7 reference after forty days, an inordinate delay by any standard. Under the circumstances the Reference is indeed hopelessly time barred. We accordingly sustain the preliminary objection. Costs to the respondents. Dated at Dar es Salaam this 2nd day of March, 2010. E.N. MUNUO JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL p4/47 Iertift this is a true copy of the original ( ' jIJ 7- 1 5 ~ DEPUTY REGISTRAR H .