20060406 TZCA Dar es Salaam2 1

,· IN fHE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 30 OF 2005 JUSTIN K. MUSHI ............................................................... APPLICANT VERSUS 1. TOYOTA TANZANIA LIMITED ] 2. INTERNATIONAL MOTORS LIMITED ] .................. RESPONDENTS 3. KARIMJEE JIVANJE.E LIMITED ] (Application for Leave to Appeal to the Court of Appeal of Tanzania from the decision of the High Court of Tanzania at Dar es Salaam) (Kimaro, J.) dated the 30th day of September, 2003 in Civil Revision No. 101 of 2001 Date hearing of the matter was concluded: 3 rd April, 2006 Date Ruling was delivered: 6 th April, 2006 RULING MSOFFE, J.A.: Civil Revision No. 101/2001 of the High Court of Tanzania at Dar es Salaam was determined on 1/3/2002. Thereafter, the applicant moved the same court with, or rather in an application for leave to appeal to this Court. In a Ruling delivered on 30/9/2003 the High Court (Kimaro, J.) struck out the application in response to a preliminary objection raised on the competence of the application 2 following a failure by the applicant to annex a copy of the decision desired to appeal. The High Court invoked Rule 46 (3) in striking out the application in question. With respect, the High Court erred in invoking Rule 46 (3). It is now settled that the whole of Rule 46 does not apply to applications for leave made before the High Court. In Faustine G. Kiwia and Another v. Scolastica Paul - Civil Appeal No. 24 of 2000 (unreported) this Court stated:- " .......... Our construction of sub-rules (1) and (2) is that those sub-rules apply only to the Court of Appeal. This is because of the use of the words "Court" and Judge" which according to the definition rule 2 (1) refer to the Court of Appeal. Now, if these two sub-rules apply exclusively to the Court of Appeal, we could find nothing in the remaining sub-rule (3) which makes that sub-rule applicable to the High Court as well. We think it is more commendable to construe the sub-rule consistently with the other two sub-rules to mean that the whole of rule 46 applies to applications for leave made to the Court of 3 Appeal only. In other words sub-rule (3) does not apply to application for leave made to the High Court". Once the application was struck out as aforesaid, the applicant filed this application in line with Rule 43 (b ). The application has, hqwever, been met with a preliminary objection the gist of which is that there was no valid application made in the High Court in the first instance, and refused before the applicant could file this application. Mr. Galeba, learned advocate for the respondent, was of a general view that since the application before the High Court was merely struck out and not dismissed, it was still open to the applicant to move the High Court in an application for leave to appeal before resorting to this Court on a similar application. On the other hand, the applicant, being a layman, could not assist the Court much on this important point of law and procedure. At best his submission was a plea that justice be done to him at whatever cost. Mr. Galeba is certainly correct in his general assertion and view that the applicant should not have come to this Court at this stage. In terms of Rule 43 (b) an intended appellant could only file an 4 application for leave to appeal to this Court after a similar application was made to the High Court and refused. As it is here, there was no such refusal by the High Court because the application before it was not determined on merit. Technically therefore, no application for leave was refused by the High Court before the applicant could come here at this point in time. Indeed, the position here is more or less similar or akin to that which obtained in Ital African Transporters Limited v. Giafar M. Beder - Civil Application No. 15 of 1998 where Kisanga, JA, sitting as a single judge of this Court stated:- " .......... Kileo, J. struck out the application for being incompetent in that the application was not properly before her, and that rendered her without jurisdiction to hear it. In other words the purported application was something which did not exist in law and which therefore, she could not entertain. So that in law there has been no application to the High Court for leave to appeal. The purported application before me, therefore, is not properly before me because it contravenes the provisions of rule 44 of the Court of Appeal Rules which requires that 5 such application be made before the High Court first. In terms of that rule the applicant must have made a valid application to the High Court before coming to knock on the door of this Court; it is not enough merely to show, as in this case, that ,a purported application was made to the High Court. The purported application before me, therefore, is incompetent, and that is sufficient ground of striking it out." Perhaps it is pertinent to mention here that, as stated above, Kimaro, J. struck out the application on a misapprehension of the law. Under normal circumstances, I could vacate her decision and order that the application for leave be determined on merit by the High Court. I realize, however, that in doing so that would actually mean or entail invoking the revisional jurisdiction of this Court; a power which can only be exercised by three judges of this Court under section 4 (5) of the Appellate Jurisdiction Act, 1979 as amended by section 2 of the Appellate Jurisdiction (Amendment) Act No. 17/1993. In the circumstances, I think, it is still open to the 6 applicant to go back to the High Court and move it on first instance in an application for leave to appeal. In the event, for the foregoing reasons, the application is incompetent. It is accordingly struck out. Since the learned counsel for the respondent was partly to blame in wrongly advising the High Court to strike out the application for failing to comply with Rule 46 (3) I will not make an order for costs in this application. DATED at DAR ES SALAAM this 6th day of April, 2006. J. H. MSOFFE JUSTICE OF APPEAL I certify that this is a true copy of the original.