20190208 TZHC Dar es Salaam 1

IN THE HIGH COUR OF TANZANIA AT DAR ES SALAAM MISC. CIVIL APPL NO. 208 OF 2017 (Originating from High Court of Tanzania at Dar es Salaam in Pc. Civil Appeal No.44 of 2016) LEILA MOHAMED (Adminstrix of the Estate of the late RASHID HASSAN JUMA) .................................................. APPLICANT VERSUS HASSAN RASHID JUMA .. ............................................ .. RESPONDENT RULING E.B.LUVANDA, J The respondent raised a preliminary objection that the application is time barred. Mr Juma Nassorro learned Advocate for respondent argued that an application for leave to appeal to the Court of Appeal is required to be filed within 14 days from the date of the decision, in terms of rule 45(a) Court of Appeal Rules. That the decision was made on 21.11.2016 and the application was filed on 21.4.2017 contrary to rule 45(a) of the Rules (supra). That an application for certificate on point of law under section 5(1 )(c) Cap 141 R'.E. 2002 has no time limit under the Court of Appeal Rules. In the circumstance such an application falls within the ambit of the scheduled Part Ill Cap 89 R.E. 2002, which provide a limitation period of 60 days. Therefore he submitted that the application is time barred. Mr. Juma Mtatiro learned Counsel for applicant insisted that the application was filed on 2.12. 201 6 after elapse of 11 days from the 1 decision. The learned Counsel submitted that, it is not true that the application was filed on 21.4.2017 or 8.5.2017. Basically, the dates of filing of this application are somehow confusing. The affidavit at a jurat of attestation reveal was deposed and attested on 30.11.2016. However the registry officer endorsed that the documents were presented for filing on 21.4.2016. Presumably there is clerical mistake committed by the registry officer in that a year was not rectified to reflect a correct one. An exchequer receipt No. 137 64638 payment in respect of court fee, for the application, is dated 21.4.2017. In practice, a date of an exchequer receipt is normally taken as a date of filing. On his submission, the learned Counsel for applicant attached a cash deposit slip showing that he deposited Court fee on 2.12.2016 and argued that a delay to endorse the documents was occasioned by the registry officer. In view of the above scenario, I hold that the applicant had presented the documents on time, delays were due to Court's internal arrangements. But there is still a glaring question. In his application, the applicant had preferred an omnibus application by combining two distinct prayers, which cannot be granted together or in the alternative. In the first limb, the applicant is seeking for certificate on point of law on the second prayer she is asking for leave to appeal to the 2 ,.l Court of Appeal, against the same decision dated 21.11.2016 in PC Civil Appeal No. 44 of 2016. It is common ground that appeal to the Court of Appeal from the decision of the High Court in proceeding originating from Primary Court like the instant matter, require a certificate that a point of law is involved in the impugned decision or order (see section 5(2) (c) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002. In the instant application, the applicant has sought or combined a prayer for certificate on point of law (first limb) and leave to appeal on points of law (second limb). The application was made under section 5( 1)(c) of Cap 141 (supra)43(a) rule 43(a) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002 Subsidiary Legislation, and rules 45(a) and 46 of The Court of Appeals Rules, which all cater for an application for leave to appeal to the Court of Appeal. In other words, there is no provision of law cited to enable an application on certificate on point of law. Therefore this application is defeated for being confusing (combining two distinct prayers, which amount to omnibus) and also for being brought under irrelevant and 1n applicable provisions of the law. The application is struck out for ~ g defective. No order as to cost, as this point was taken at the Co~r19roprio motto. E.B. ANDA DGE .2.2019 3 '--