19990806 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAM~ DISTRICT REGISTRY AT DAR ES SALAAM CIVIL CAUSE N0.201 OF 1998 KIJAKAZI HEMEDI DOMANI ••.••••.•.•• .l'1PPELLANT VERSUS CHRISTOPHER DOWSON T<EJVJBI • e • •RESPOI\i1JENT • • • o • RULING BUBESHI, J: In course of hearing an application for leave to appeal under Section 5 of the Appellate Jurisdiction Act, 1979 and Rule 43 (a) of Tanzania Court of Appeal Rules, 1979, Mr. Uronu learned advocate for the Respondent raised three preliminary objections - namely that the application was filed out of time and without leave of court granting extension to do so; "'."" that the accompanying affidavit was defective - contrary to Order VI Rules 1, 2 and 3 1 and that the judgement sought to be appealed against has not been attached - Rule 46 (3). ~ Jr. 'I\,1aib for the applicant did not agree. He submittef . ' that on the defective affidavit, verification clause ha• no legal basis. That,it was important merely to show that the deponent had sworn. On the jurat it was enough if shown that deponent resides in Dar es Salaam and counsel has office in somecity • .. On failure to disclose points of law, he was of the view that as affidavits are confined to issue of fact, it was not proper to disclose matters of law. That it was sufficient if the legal points were merely stated without naming them -.... specifically. And failure to attach ruling/judgment or order, Mr. Tvvaib stated that this requirement was not a legal requirement during applications for leave • ....... 2 As on whether he filed his application for leavep Dr. Twaib was of the view that the 14 days rule apply to isuance of notice - which he filed on 2/10/98 ~ within time. And that as he got a copy of decree on 13/10/98 the 14 days_ rule apply from that date. Let me first deal with the issue of whether or not the application was filed on time or rrnt, Rule 43 state that applications for leave of this Court may be made informally or by chamber summons within 14 days of the decision. The judgment of this court was delivered on 22/9/98 and application filed on 22/10/98 -_that is within 30 days and not 14 days~ I disagree therefore with the contention by Dr. Twaib that the 14 days rule applies to the giving of notice of appeal. The record of ' the court indicates that the copies of the judgment were ready for collection on 22/9/9'8P had the applicant wished to collect sarne for purposes of appeal. That he received .. the copy of decree and proceedings on 13/10/98 is not supported by record. Agail} in terms of .H.ule 46 (3) every application for leave shall be accompanied by copy judgment to be appealed against or a copy of the order of this court. There is no such copy of the order attached. This is mandatory requirement and the applicant cannot be excused for non comP,lianC?e• · -. ~' _ Without belaboJ:.~ing much on the other points raised by Mr.~. UronuP I am satisfied the application filed must fail I ... for being filed out of time and non compliance with. Rule 46 (3)~ neave refused. ; ,, , / •i i _.. [i ; 1. J.. . , I/ .J'l i J_,_.): -.):-... :.,:.J'.-L" A.G. BUBESHI JUDGE 6/8/99 __..----'\I~ ~ . · . ~ .,_ ,h