20010420 TZCA Dar es Salaam

----------- .....,_ IN 'ffiE COURT OF APPEi.L OF TANMNIA AT DAR ES SALJ\AM _, r,c -• • CIVlL Jl.l'.PLICATIGN NO. 2 Qli' 2001 In the }latter of an lntended Appeal l3SACK SE'B:I:ili!:LE. • • APi?LICANT AND TANZANIA PORTLAND CcltiENT •• • 0 • • • • RBSPONDENT (Application for leave to appeal to Court of Appeal of T.:.nzania from the decision of the High Court of Tanz.mia at liar es Salaam) (Manento, J.) dated the 16th day of December, 1999 · · .. in I .. '· ,I } ~.!-§v~l AJ?Plica t ion No ••_l.9_o f 1228. .1, ·1,c.,, rc~t t : 1•9lication " LUBUVA, J .A.: i rr. /. The applicant, Issack Scbegele 1 is by notice of motion seeking • . -.\ ._ .,. • • j • '• I leave to appeal to the Court against the decision of the High 9o~tt." .• ~X 0 , II I ' (Manento 1 J.) of 16.12.2000 in Hise. Civil Applicati~n No •. 3(?,.o.f. ;19_98. '·<.~ _(...,_ ... J ... • 4 - I In the High Court he sought leave to appeal, ._hich 1. ~\IQ9_,refused on . , : . ') .. ! .. .,. ~ ............ "" ' 14.12.2000. Dismissing the application for leave to appeal, !hem~~~. .. . . -~ . t held that the applicant had not shown. sufficient cause f~i;- the ., delay,. • l..i•~ He o.lso held that th~re was no point of law involved to be considereci 11 /' by the Court. The applicant has now come to the Court in terms qi- :t~ •• < ◄ 1.., .. -.1!..:.ill?_ provisions of rule 43 {b). I.. The application by way of a notice of motion is supported: by affidavit sworn by the applicant. The background giving-ri.ie,"to th~,..!s matter is straightforward. It all started from the decision of the Taxin-g Officer in Il-1P. Civil Cuse No. 195 of 1996. The applicant being·· ,/5 •••/2 'I I 2 dissatisfied with the decision, took a roference to the High Court, where, i~ was dismissed on 16 .. 12.1999. The High Court was of the view tba.t· therei l was no material error warranting interference with tho decision·oflthethc Trucing Officer. 1 Hence, the application in the High Court ·seeking'··leave1 to appeal which, as already indicated, was refused on 14.12.2ooo~t•~ 1 ,. 1c.:umc.,ot1:.. kJ a i 1 Before me in this application the applica,nt was unreproserltedt . '' Ir ' · '·'-' i ,; ~.1·i1. r . On the other hand, the respondent was represented by Dr. Angelo Mapunda, 1.1.?..~lJ. learned counsel who, had also represented the respondent in the courts '•· ..., (.\: .,._ When the a11plicatiiin was called on for hearing, Dr. Mapunda raised ; below. t . . L ~ 1\. a preliminary objection notice bf which he had duly filed~ In support of f.,1 'S.,'. ,••.1 (!''.i the prelimino.ry objection, he ht.d filed three grounds. However, at the ;'"if -1 hearing of the application he •pted to argue only ono· ground, the·-rest jl! / ' J of the grounds were abandoned. , The ground he argued was that the application 11'.' ·:,, 'I is incompetent, it was filed out of time.. He submitted that as the ,., 1!/. application for leave to appe::i1 was dismissed on 14.12.2000,· the application in this Court filed on 11.1.2001 1 is out of time. The application'_.Zne'10, 111 II said, should have been filed 14 days from the date of refusal ,i;e.· 14.12.2000. r r . I At the latest, he stressed, the applic&tion should have been.:lodged by .... !I 28.12.2000. i:io, Dr. Mapunda went on, under rule '43, (b) the~application was· ) ' I } filed ·out of time by about two weeks. As there wo.s no application: fori t' .,....,..; \. ~, extension of time, the application is incompetent on account of it being; ' :· I -· . out of time, he contended. In support of his submission, he referred,'..to the decision of the Court in the cases of: J'anf'i.WlL~~ulole Workshop V Yusuf Sha.bani Mzimba, Civil Reference No. 24 of 1997, (unreported), Daudi Mlenge V Titus N. Mako111be, Civil Application No. 93 of 1998, , 1· (unreported) and The Editor Mfanya!aizi Newspapers And Mahmoud'Mwinyi' ,V ,Silas ~ , Civil Application No. 97 of 1999, (unreported). t. !.:. ... •._;!. C / ••• 3 I •••• .a. ------ ------- 3 - I Resisting the preliminary objection, the applicant, _Isaack S~~gele. 9 _ :j , T I ...... ... • ~,:~ .. vigorously. contended that the application was timeous,~ He a.aid after the ,... I l.& ... .£ ! ..Ut!f.J application for leave was dismissed by the High Court on 14_-12.2<?00, -he ~ t, ,,; i • # ,_ • \, , filed the o.pplico.tion on 22.12.2000 1 ~ut was directe_d by t~e, Co"::l'fs, ., .. , ·-t..-'---"' ............ ,.l'-'••ll1. Registry Official to effect some rectification in the docum~nts. As a . , ~ -!. L ! ..,. '- ';A''•;1...:.: ·_,::; tt...._;1tl.y r- result 1 _he said, it took sometime until 11.1.2001, when he. pa~~ the_ • ..1 au...... .... . . ..... ,.t ,. r.aquisite fees and the application was registered the,s~e gay (11·.1.2001). f . • • .... .1'J.v l JJ10.i..., :.n the He argued that if _there was any_ delay in the filing_ o_r, :r,eh~t8ttr~~~i of 11. If.' · the ·application, it was through no. fault of his but, ttie CB\frt ilegistry ~"' ... I It is my view that this matter can be disp06ed of within a narrow compass•. The issue is whether the application was filed within the · pres~ribed time _under rule 43 (b). Under this rule, application for leave ·to appeal shall be made within fourteen days of the refusal by the High C•urt. In this case, the application for leave was refused en 14.12.2000, .1 therefore, as correctly·submitted by counsel for the respondent, the ,,. application ,to the Court should, at the latest, have been lodged-by ~.A.2000. As the application 'wclS filed on 11.1.2001, it is:,oµt,-of t:ime \ . .by a.~out two weeks. The applicant's contention that the dE)lay -~..1..iaused , :~( iM the Court's Registry Official sounds attractive, but I.~am .no:t P!l..J'ji?B-dede J-"' ·i:_az:.ted that the Ceurt s Registry Clerk had directed him to r,egularise his ,~ 1 ~ •;) ..... •~}, · ·· )nc.uinents which is not uncommon for Court officials to assist, especia11 - . -~ I" • t._ . f : ''hhen the parties involved nre lay men as w:lB the case here, _st~ll,. that f~ iuld not absolve him from the mandatory requirement _,-f the ~ule.,. .Being . 1 a ~layman, is, with due respect, • no greund I for exempting the applic~! from due compliance with the legal requirement under the rule. Whi~e. t~e · applicant ·was endeavouring to regularise his papers as advised by t~e: Court's Registry Official, an extension of time should have: been sought J •••/4 ) 4 to enlarge the time within which to process the application for leave to appeal. In this case; the:1;'~.was no application f~r.il t!ie~e~~tl~f time •.- ... u . .?-t · sought in which case, there is no ground for ex.empting_, ~ . ;;,. ,.;:., ~!3fe, -...",,,~u t-- the applicant from the Nquirement of t.he rule to lc)dge the application within Ii 14 days of the refusal. In the cases cited above, the Court has consistent'.q held thtlt applications for leave to appeal which are lodged iutside, the • .•.: I ,, ' . I l' period prescribed under rule 43 {b) arc incompetent~ . For inatance 9 in the ! c:lBe of The Editor Mfanyakazi Newspaper, (supra) in somewha.t similar circumstances, the Court inter o.lia. 1 stated as follows: l'I i;••• as there was no extension of time applied 1' Q· for and obtained, the application to the Court I/ I should have been filed by 22.10.1999. Instead, I. !/ I I. the application wast as conceded by Dr. Lamwai 'I filed on ,.22.11.1999. This 1 I am settled in II I. my mind 1 was hopelessly eut of time. 11 i 1. ~ '': ! I. I In that case, it was•vigorously contended that the applicant co'4d nQt : l lodge the application within 14 days after refusal by the High Court because the applicant had not obtained cepy of the High Court order refusing leave for enclosure in the application. In the absence of an extension of time, the contention was of no avail. In. the instant case, II the applicant argues that it was the Court Registry Officer who 1 on ~ ' account of his advice to the applicant, caused the delay in filing the j i application. This, like the Mfonyakazi Newspaper case, would not 1 in my view, hold. At any rate, apart from this deficiency, the applicant's claim that the Court official was the cause of the del.D.y is nothing more tban a mere assertion. If indeed that is what happened, the applicant ought to file an affidavit sworn by the alleged Court official in support of his assertion. He did not do that and so 1 the Court is left to make d• with the o.pplicant 1 s mere assertion. That would not do. • ••/5 ·- ._.,;., - ~---- ---- ::. ·- . -· - - . -- -- -----'---- ~. ~- 5 /, f.' ,! Consequently I I am satisfied that the application has been filed 'i .. out of time, it is incompetent. The preliminary objection is_ sustained . ,. with the result that the application is struck out with. costs. . ~ DATED at DAR ES SALAAM this 20th· 'day of· April 1 ;,.'72()01.: D.Z. LUBUVA I JUSTICE OF APPEAL 11 I certify that thia ie a true copy .C·.tho original•· • ,g · . i:,n /i f I I ' ! I I• I I rT. :.-:1,·-::;J; ( F.L.K. WAMBALI) £.EPUTY REGISTRAR · •• !• .· .l