19950524 TZCA Dar es Salaam

I ✓ IN THE. COURT OF APPEAL OF TANZAlffA AT DA.R ES SALAAM CIVtL APPLICATION ~O. 27 OF 1.995 BETWEEN N.A1,0GWA ZAKARIA •• • • • • • • • • • APPLICANT AND WJ\J'lt)OA MSUNZA. •. • . . . . . . ... . • RESPON'DEN't (.Applicati·on for an order• that the crder of the High Court judge be set aside on the ground that the Judge erred in his decision of the Kigh Court of Tanzania at Dar es Salaam) (Maine, I J;.) ~ated the 30th day of May, 1995 in (PC) Cl,,;, J\"'_~P~l)~.9..: 1!5j. __r,f 192g R UL I N G Before the Primery Court at Manzetse iri Dar e:J Sal~alft 9 the re•pondent had sued the applicant, her husband in Civil Case No. 85 of 1,91 in which the subject matter was a house, all.gedly e m•t~onlal ~roperty. Though the primary eourt had deeided that tl'M! h~se was a rnatrirnQniel hOU$e; the applican.t and the r••p~dent were e:,:~~;ted tb pay a t:ornpensation of Shs. ,t189,00f/= • ~-·.-s-:-~;· ,,._ -~, to i1,e Fanuel Nasho~igwa before thex could take pc,sseasien of \he ~use.. The respondent appeale4 to the District C~J.Jrt where ' the appeal we-s disrttissed. On a second appeal to -t;he High Court, the appeal was allowed wherein it waa helrl that the respondent y had a right to her share in the house, it bef,ng a- metr1Jnonlil "'~ ~ •~:> !" . \ ~ J .. 2 delivered on 30.6.199,4 and the notice of appeal W"3s f'iletf Olt 20.6.1994. The applicant, the husband cif the resp,>ndent "'a• unhappy with that decision. He filed an application seekii,g leave of the High Cour-t to appeal to this Court <>n 29.7.1994. 1'1sndsstn, the epplic:ation for leave, the High Court (Maina, J.) held that the apt>lication which in terms of rule 43(a) of the Court•--s Rules• 1'979 1 ~le- have beeft file.d withirr· 14 days ef the date -cf the come to this Court. , In what appears- to us a rather novel. style:'.i~-this-_-app.lJ&:aUn-, wa_t fil~d l>y- t'J~~ Saf'~M:"1,- leaniett--C~ael.. As . showrt in the notice of ~otion, the application was pu-rportedly made under X"Ules- 4S abd . . 75_. In that motion, a Judge of this Court was to be meved for; an order se:tti-ng aside "the order of the High Court refusing leave , to appeal "P-~-, ...ground _}:.hai:-~ judQ8-G,N"ed''~!ft.-..,bf$_ dectsSon•, -"?'be---.appli<:ation was supported by t:he affidavit of the applicant,, Nalogwa Zakaria. In tbe affidavit it is stated: 1. That I was not represented in- the High C~urt and was ignorant of the time fixed by law 'to file petition of appeal to the C,c;,urt of Appeal. 2~ '!'.hat I believe that ,1':he -ease raises- a fundamental is.s.ue · «Jf law for decision o,f the Cwrt. We ~ould fir:;,t deal with the manner ih which this applicatiC'.m has been prooess::;ic;. As already pointed p~t, in the notice or, moti~, it is cl.eatly indicatert that the order sought w~s seeking tc •e't asi<le the High Ccz.u:-t order refusing 'tit) grant leave to appeal • ., ••• /3 3 'this seems to us rather novel because what the application intended to achieve was tt> obtain from this Court leave tq t!P,Jtea1 19ein&-t the l:iigh Court dee ision or to have an exte-nsion of time ln wl,ich to file an epplication for leeve to appeal. This would be · 1n aeO<tt'dence with the provisions of Section 5 (t)(c) of the Appellete Jurisdiction Act, 1979 as the matter -originates fJ:.'Ol'A the primary ceurt. It is for that reason that it appears to us that the relief sought was couched in sUch a manner that it does .not indicate clearly what it seeks to ac·hieve • The next isaue is whether the application is ~roperly before \I.. Although in the noUce of ?notiori_ 1.t is indicated that the application was made under rules 45 and 75· of the Court's rules., 1979-, it 1~ eur understanding that the applieation was based' o.n the provisions of rule 43(b) of the Court 1 s rules. The reason is that this matter arises from the decision of the High Court in whic:h the application for leave to appeal to this Court ·was dismissed. With the dismissal of that applicaticn, the applicant hal come to us in terms of rule 43(b) which allows a party whose ap.plieetion for leave to appeal has been refused by the High .tourt te seek leave from the Court. This is what the apr,itcant )la_• d~ne. In that case, it bei119 l!n application of this nature, it is our settled view that as it is the ease with such eivil ' . appl~ations seekit'lg for leave of the Co~rt after refusal by -the ~i9h Ct,urt, the matter should have come to a single jud~e of the C~rt and not before' a bench of three judges of this Court. its merits. Dismissing the app~U.caHon ior leave tC> appeal-, the learned judge held that the application having been filed ' 4 aft~r the expiry of the prescribed period and as there w~s no epplication for the extension of time filed,. the application was- time-barred. At the· hearing <>f this application Mt. fttilttltaJ&t.·- learned Counsel for ttte··~~ent who· hM al&P rep.N~!'ltett the · «:•~sit be.fore the High Court $ubmi tted th~t the eppl~~il:+. ~• devoid of any merit. He st!!ted that the applicatio-h w~s filJtt •\at of time and that the appellant did not follow the advic:-e d "-"- the application for leave to appeal. As tar the applic:~ntt a claim that he did n~t know the time fixed by the ·rules fof -apl)l!{ing for leave to appeel.., Mr./ Mdeka.1_~1!11 ~ 4 ~ - t ~ ~ - of the la\.11 is no defel'lCe~ He pressed for the d1$1111$sa1 ~ ·the application, As alr-e&dY indtca·ted'P the appli.cowt' .s ground for the - .api,11CaUtMl ~e-that he wanted the appeal to be heard so that justice co~ld be done in the case.as he was not ~preserited befo~ the· High C~urt. He strongly urged that the learned judge had erred • in diamissin9 the application. Appearing in. person before us at the hearing of this application, the applicant repe<11ted what he had steted- in the affidavit, that he did not know the time fixed by the rules for filing applications and appeals to the Ceurt 9 ./\$ se-en from the ruling of the Hieh Court, it is common ground that the judgment of the High Court w~s delive~ed en 17.6.19,4. The application for leave to appeal was lodged before the Hiijh Court on 29.1.1994. :tn te.t'mll of· rule 43(a) of the Court's rules th€ applicat:f.on for J.eave tc appeal is to be filed within fourteen d?.ys from the date of the decision. The applieatlon f<>r leave was therefore, as correctly held by the learned judge •• ., ./5 ' s \:1Me-barred. furthermore,, with the pr-esc.ribed ti!TIE! fo~ applyl~O £or leave having expired anct there was no application filed fe~ extension of time in which to file the l1pplicat:ion for: leave to appeal, we can sE!e no groum for faulti-f'MI the -letrrled jud99 in his decision to dismiss the application. It was hopelessly out of time and there was nothing that th~ learned judg1t could ao in order to salvage the situation._ we are a1so s~tisfied tha~ no point cf law Was involved in thi a matte~ wo_rth the ecn-atderat16n ..- '· • ;_:,... ~::. ...~ ·) ,; .:.,...C:,:-;_~.:~p,.";-.•l·•· ;.~,·:· (.~.•"- •. ,., . %,'. _.. : ' . I•• •.•, ,'i-.' • :"" < • ·• ••' .•, -~••• , •• • •• ,,:; •.,::.~:. ; •1 ••.- -!f' ~ · ...••: ~ ·.• ~.-,. :•-•.:-,~ ':~ •~•-~ .,_•·••· ~ • , ___ , ._T~~, appl'!cant•--~,,-c-J'.a'i·~ that-he was- igt1oren-t of the time fixed 1 /.... -- _.,_. • by the." rules for the· processing ~f.. petiti~~s a~~ appeals to 'the Court is of no avail as it is ~omrnon knowledge that ignorance of the law is no defence at all i~ law. Rules of the Court ere there to regul~te the processing of appeals ~tc:, they should be f,->ll~d _ _: _ / :\; ,.<:' ;,/' ·- ;,;-: ,J'_ •:. i' _ }, , , '::; :'(>'{-,>'{:-:- ;··:·,--<;fC{ ':~;?:< '_. ~-- Y;!_gorot.tsly.- "':'O:therw:l._se,· 110n-cornpU.ance with the_se -rules ·on grounds of ___tgnorance C!f the rulef! _would imp,de t~f! speedy ,~nd -~~o.~h. . . . ) -.· ·~ ... ' i~ ; .. ;. .:·:·~-- ,: . . ~-- ,~~~~. -runn1n,i_ ~!: t:1), ~~~;fa>. put11.ness. _ ~e,:-e ~~ld, be 110 ~er,tf 1 to -lltigatl,on. • : :. .,·.• r • : J.: •. ·. ---~- . • • .,. .• . .· . • . }"; ~11: ~~,. ~~.t;purn~,tan-pes' of ._thj,.~t cas~ ,. _Wtt --~ sa,ti sf1S4 :,~_M,~~:t~t~-~ ~-,:e . , ! . no ~rounds for ,~h~' :~pplicar:t' s _comp~aint that juat~~tl _"'-l!~'i-'~q.~-.A~~- . ~ . ;· . . .:· ., . .. .. . . ·. , .. ·' ~ .• :;e:.~,.,~-- -~ '·. ·,. .. ~~ ..t; . . .~ -, in the - fa~e_.>' i,~ i's: to -~ ~b~eJ:".Ved, that i~e- api,lic:a~,t. .. ·. __.: . a,adLthe tr,/·. r ..._:- -~:i·-: .· . -. - ·.. ;..: ... ~. :f., -respondent a_re,- $till_ hus,band apd wife. . - . j.' ;l ; .; . __;. • ,. : •' : .• 1 ~.• • • , ~· decision ~' t~ High • (. . •• • ~· , • ·•,:•, . Court 'which 1 s compla~ned of did n91;:_ - . '· deprive the· . applic:ant ,1 of a ';. _,, share in the houseo Rathe~, it was decided ~hat the house waa a lltatrimonia: hou!'!0 1.n which both,.,.the ··'applie~nt ...... . _an_d.. t!1~ ~ape.nfent , had a share.. As n0:r,•'.'.· o:!: :.t~m 'HGC deprived of a share in the house, r, fair balance of justice, was, 1f1 the circurnstance!S; maintained. - .. - Consequently, ,..,e are satisfied thct·i.: {:his application hff r,o ~erit at all. It is ~ismissed with costs. • ••• /6 . 6 DATED AT DAR ES SALAAM THIS 24th DAY OF May, L .. Mo . MAKAME ~STICE OF.· APPEAL N.S,. MNZAVAS ~STICE_.2E' APPEAL , /, ,..,, 0 f D.. Z,. LUBUVA