20060406 TZCA Dar es Salaam

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IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SAlAtJ,M CIVIL APPLICATION NO. 2.7 OF 2005 MAU LID t\ll Y MBV'vANA .................................... APPUJ:CANT

VERSUS ASHA SHAB,O.N NZOV'✓A ......................... , ........ RESPONDENT (Application for extension of time to file Notice of Appear and extension of time to me an application for certificate on point of law from the decision of the !·Hgh Court of Tanzania at Dar esSa!aam) (Ihema:, J) dated the 15th day of February, 2005 in PC Civil P.ppea! No. 129 of 2002 Date hearing of the matter was concluded: 3 rd Aprif, 2006 th Date Ruling was delivered: 6 April, 2006

RULING KAJI, J.A.: By a notice of motion filed under Rule 8 of the Court of Appeal Ru!es, 1979 and section 5 of the Appellate Jurisdiction Act, 1979, the applicant, Maulid Ally Mbwana, is moving the Court for two orders. First, to extend time in which to file a notice of appeal. Second, to extend time in which to file an application for certificate on point of law. 2 Tt1e applicant was the appellant in (PC) Civil Appeal l\lo. 129 of 2002 in the High Court of Tanzania at Dares Salaam. On 28.7.2003 the appeal was dismissed for want of rnerlt. Ten months later the applicant applied before the High Court for extension of time in which to fi!e a notice of appeal and for extension of time in which to file an application for certification of a point of law. He was unsuccessful. Dismissing the application, tl1e court, Ihema J, observed as follows:- I note that the applicant has nothing in his affidavit why it has taken him that long to file the chamber summons. It has been emphasized by the courts of law in our jurisdiction that for a party to be granted extension of time, sufficient reason or cause must be advanced. Failure bf doing so will render· the application un-maintainable. This is the price the applicant is going to pay for his inordinate delay as well as lack of sufficient cause foi the delay. I accordingly order that the application be dismissed with costs for lack of any

merit ,, 3 Pursuant to that dismissal, the applicant filed this application. In his notice of motion as we.II as in paragr·aph 2 of his affidavit, the applicant is contending that, he was late to file the notice of appeal and to apply for a certification of a ·point of law because when the judgment was delivered on 28.7.2003 he was absent and he had not been notified of the date of delivery. However in his oral submission he admitted that he was present but that thereafter he fell sick and went to Mbeya.for treatment. However he conceded that there is no evidence to substantiate this. There was no reply by the respondent because the hearing proceeded ex parte under Rule 58 (2) of the Court of Appeal Rules, 1979 after she failed to appear without notice, alth_ough served. As properly observed by the High Court, extension of time can on!y be granted if the party applying for the same can show sufficient cause for the delay. In the instant case the decision which the applicant is intending to appeal against was delivered on 28.7.2003 in his presence. The applicant did not lodge his notice of appeal until on 21.5.2004 when 4 he applied for extension of time to file the same. As observed earlier, at first he blamed the High Court for failure to notify him about the date vvhen the judgment was delivered, and for delivering the judgment in his absence. But on reflection he told the

truth that he was present. Indeed it was useless to tell lies because the record speaks by itself on this. The lie was the only ground for the delay mentioned in the notice of motion and deponed to in paragraph 2 of the affidavit. After expunging this, there is no any other ground deponed to in the affidavit. However in his oral submission the applicant submitted also outside his pleadings and stated that, immediately after delivery of the judgment on 28.7.2003 he fell sick and went to Mbeya for treatment. When he returned he was already late by six days. However he said he had neither a medical chit nor anything to substantiate this. He also could not say why he delayed for ten months if he was really only six days late on his return from Mbeya. Indeed the applicant has failed to show sufficient cause for such an inordinate delay. His application for extension of time to file notice of appeal has no merit. 5 As far as his application for extension of time to apply for certification of a point of law is concerned, I think I as a Single Judge of the Court, have no jurisdiction to entertain it. The matter emanated from a Primary Court. Under section 5 (2) ( c) of the Appellate Jurisdiction Act, l 979 it is the High Court which is empowered to certify a point of law. It would appear there is no clear provision stating as to what happens when the High Court refuses to grant such

certificate. Dealing with a similar issue in Omar Yusuf v. Mwajuma Yusuf and Another (1983 (TLR) 29, this Court observed at page 31 as follows:- It may very well be that where, as here, the High Court refuses to grant a certificate that a point of law is involved, the matter may probably be brought before the Court of Appeal by way of appeal against the order refusing to grant such application, but we are of the settled view that the matter could not be brought here by way of application or further application. 6 In the instant case where the High Court refused the applicant's application for extension of time in which to file an application for certification of a point of law, I think the applicant can appeal to this Court by following the proper channel in respect of time limitation. In the event, and for the reasons stated, I dismiss the whole application. There is no order as to costs because the respondent is absent without leave. DATED at DAR ES SALAAM this 5tt, day of April, 2006. S. N. KAJI

JUSTICE OF APPEAL ertify that this is a true copy of the original. >1 · (I ·· '.~.. ◊'-, ',,<tf,:'\i . -~.· ) \ " '