20140225 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM. MISC. CIVIL APPLICATION NO. 127 OF 2010 PILI MUSSA .................................................... APPLICANT VERSUS. FIKIRINI ISSA (Administrator ~:of the Estate of Deceased Bilali Juma) .............................. RESPONDENT RULING 20/9/2011 & 25/2/2014 Utamwa, J. This is a ruling on a preliminary. objection (PO) raised by the respondent, Fikirini Issa (Administrator of the Estate of Deceased, Bilali Juma) ag~inst the ' . application filed in court by the applicant, Pili Mussa. In the application which is preferred under.s. 14 of the Law of Limitation Act (Cap. 89, R. E. 2002), s. 68 (e) and 95 of the Civil Procedure Act, Cap. 33, R. E. 2002, tl)e applicant seeks for the foliowing orders; 1.. That this Honourable court be pleased to extend time to enable the . applicant to file a fresh appeal in this court. 2 .. Any other relief(s) this court may deem fit to grant. 3. Costs ofthis application. !. i Page 1 of7 The same is supported by an affidavit sworn by the applicant herself .. : . at Dar es salaam on the 9th day of September, 2010. The affidavit testifies, among pther · things that, the applicant intends to appeal out of time against the decision of the District Court of Kinondoni District dated 13 th of February, 2003 (the. District • J Court had sat in that matter in its appellate jurisdiction entertaining an appeal originating in a primary court). The affidavit testifies further that, previously the applicant had filed an ,appeal before this court against the same decision. The ,. appeal was registered as (PC) Civil Appeal No. 64 of 2007. The applicant's counsel however, conceded to a preliminary objection raised by the respondent in that appeal and withdrew the appeal on 14 th August, 2010. The r~~sons for the withdrawal was that, the decree issued by the district co~rt and a~ached to the . ' petition of appeal was defective, hence this application. These facts, ~s deponed, into the affidavit, were not disputed by the· respondent, though lie filed a counter affidavit. Apart from _the counter affidavit, the respondent lodged the PO _on a single ground that the application is made under wrong~. and .. inapplicable prov~~ions .' . of the law. T.he objection was contested by the appli~ant and disposed of by way of written submissions. · In his written submissions in chief supporting . . . the PO, the counsel . for. the respondent (Crest Attorney) argued that; as long as thi~ matter originate~ m }:f primary court, it is governed by rule 3 of the Civil Procedure (Appeali m Proceedings Originating in Primary Courts) Rules, GN. No. 312 of 1964:_(the Rules), which guides on applications for extension of time· to file· appeals ag~inst decisions of District Court out of time. This rule further provides that an application of this nature must be accompanied by a petition of appeal or must set out the grounds of appeal. The learned counsel for the respondent also contended that, in the matter at hand the applicant neither attached a petition of appeal nor set out the grounds of appeal as required by the law. He added that,· the applica~t did Page 2 of 7 ''; .,;:., ·. ndt- make this application under rule 3_of the Rules. This, he argued, was against s. · 4~;"(f) of ' . Cap. 89: He charged further. that it is settled law now, that wrong citation . . of .~aw renders· an application incurabiy defective. He thus urged this court strike . out' th~ application. _In h_is ~replying written submissions, the learned counsel for. the applicant •••• ' 'I' • (Mutabuzi and- Co. Advocates) did not dispute on the position of the law as _submitted by the responqe~~'s counsel. 'tte however, argued that the above cited _law does not apply in the application_ at hand because, it moves this court to grant extension of time for filing a fresh appeal out of time. According to the learned co:unsel ·for the· applicant, the extension of time to file this appeal out of time ·(against the same decision of the District Court) had been granted by the.order of this court (Kal,egeya, J. as he then was) dated 15/3/2007, hence the above ~ . mentioned (PC) Civil Appeal No. 64 of 2007 before this court. The appeal was ' afterwards wit~:drawn. The learned counsel thus argued, that the application was brotight -under proper law; hence the PO should be dismissed. From th~ record and submissions by the counsel for both parties, it is not disputed that applications for extension of time to file appeals against decisions of I district courts in respect of matters originating in primary courts are governed by rule 3 of the Rules. In fact I agree with both learned counsel, and I hold that this is the position of the law. The bone of contention between the parties is related to the issue of whether or not, under the circumstances of this matter, rule 3 of the Rules appli€!s. This is the main issue that I must decide in this matter. In my view, as long as: this is ~n application for extension of time to file an appeal against the decision of the district court (exercising its appellate jurisdiction in a matter originating in ' I _primary court), rule ,3 of the Rules takes the governance of the matter as rightly · argued by the learned counsel for the respondent. The atgument by the learned cou_nsel for the applicant , . carries no weight for the following grounds; the facts that ' Page 3 of7. - ,,, . ..'.,,:_ ., extension of time to file the' appeal out of time was granted by this court (Kalegeya, J. as he to.en was) and the appeal was accordingly filed ·[(PC) Civil° Appeal No. 64 of 2007], and the fact that the appeal was f!fierwards withdraw'h, do not exempt this application from the applicability of rule 3 of the Rules. The saine remains an application for extension of time to file an appeal against t4e deci~ion of the district court (exercising its appellate jurisdiction) out oftime, and no mote. ' ' . !? My further settled views are that, . once (PC) Civil Appeal No ... ..64 of 2007 was withdrawn, the situation reverted back to square one as if no any appeal had been filed and withdrawn. This, in rr.y view is the legal effect of withdrawing a matter from the court unless the court orders ' otherwise, which is not the case in the \'. matter under discussion' according to the. record and the affidavit supporting the application. Moreover, I am settled in rl?,!nd that, the legal effect of withdrawing a; matter from a court of ,law is similar to ..the effect of striking it out. Elsewhere, in my ruling dated 22/05/2013 [Bencc!kt Mkasa v. The Board of Trustees of 1 Medical Stores Department and Two others, High Court Civil Case. No. 12 of 2007, at Dar Es Salaam (unreported)]! had an opportunity to examine the effect ~ ' • I • of withdrawing a suit from a court of' law. . I .held that, upon the withdrawal, the ,_ withdrawn suit and every instrument or order contained into it becomes 'non- starter. I further held that, the parties thus ~evert to their fonner positions as if no suit had been filed before, and the suit that will be re-filed. (if any) will be a new creature and distinct from the withdrawn suit though may be pegged on the same cause of action. Parties · in the fresh sµit will not be ,entitled to rely upon· instruments or orders contained into the withdrawn suit. In that decision, I took · inspiration from S. C. SARKAR in his book: Sarkar's Code of Civil Procedure, ' . th Lexis Butterworths Wadhwa Nagpur (Publishers), 11 Edition, 2006, (reprint 2010) at page 1972 and 1981 who had foilowed Indian cases of T. K Namboodri v. T. D. Namboodri, AIR 2005 Ker 328 (335, 336) and Permanand v. Page~ of 7 Prescribed Authority (Munsif City):. l'.1eerut, 2002 AlHC 15 (18). I am further sei11~.d ., . in miriithat, .though this . principle ~pp lied .in a suit, by parity of reasons, it applies' .m~tatis mutandis to appeals' ltke the one under discussion, and I thus . linder~core .that position ofthe law in this matter at hand. ", . •· ,: · The rationale for this principle on the effect of withdrawing a matter from the court of law is not far to fetch, it is this; in case parties ware permitted to rely upon orders or instruments related or ·contained into the withdrawn matter, then r there would be no any distinctfon between :a withdrawn matter on one hand and a m~ite;· subsisting in the court on the othef. The court's withdrawal order would also be···r~ndered worthless, hence chaos in courts. This would thus be an· absurd . . ~ .., . . . . and .unjust . situation, which the law could not have intended to cause. ' For the above reasons, upon thf withdrawal of her (PC) Civil Appeal No. 64 of 2007 from this court, it was the applicant's duty to start the process afresh by applying.,for the extension ·of time to file thf appeal out of time under rule 3 of ilie . ' ' · Rules as the law requites. Of cours~~ she might have had good reasons for the ., delay, but that was not the reason why slie should divert th~ law. Her good reasons . . (if any) could be relevant only when the application was properly brought before the· court. I therefore, answer the main issue posed above positively to the effect that rule 3 of the Rules applies m this matter irrespective of its sympathetic · circumstances. . . As hinted earlier,.t~is. application was preferred under s. 14 of Cap. 89, s. 68 (e)'· and 95 of Cap. ·"33. ·However, s.' 43 ·(f) of Cap. 89 (cited above by the respondent's counsel) and s.46 of the srune statute provide that Cap. 89 shall not . ' . .apply . to . any pr,oceedings for which a pe~iod of limitation. is prescribed by any { oth~i_. wri~en law, unless the contrary .'intention appears in such written law. The law 'is clear that, time limitation for appe~ls to the High Court against decisions of ~ . ·• • :t" • . • district courts. (exercising appellate jur_isd'i°ction on matters originating in primary .. , .. ... Page 5 of 7 I courts) is 3 0 days, .unless the .High Court extends the time, see s. 25 . ( 1) of the Magistrates Court Act, Cap. 11, R. E. 2002. . Again, as observed . previously, rule 3 ( - ' . .. of the Rules takes ov~r in applications ~ot the extension of time to file such appeals out of time. In my construction of the law, I see no any contrary intention· by the legislature that the provisions of Cap. 89 apply to matters of this nature. It is thus . . . clear that, ·by virtue of s. 43 (f) and 46 of.Cap. 89 the provisions of Cap. 89 do :not : apply in the application at hand. Again, as long as Cap. 11 arid rule 3 of the Rules " governs this application, the provisioi:ts~of Cap. 33 cited above do not have any role to play in this matter. It follows thus that, . ' this application was wrongly., preferred . under s. 14 of Cap. 89, s. 68 (e) a~d 95 of Cap. 33 as rightly argued by the learned · counsel for the respondent. The effect of wrong or non-citatio:i of proper law in an application is well , Q known. The application becomes incurab!y defective and must be struck out as rightly put by the counsel for the respor:.ce!:1.t. There is in fact, a heap of precedents supporting _this position, see for example, the prudence of the Court of Appeal in the case of Chama Cha Wa!imu Tanzania v. The Attorney General, Civil Application No; 151 Of 2008, at Dare Es Salaam (unreported at page 18-19), in which it was held that; the omission to cite the enabling provisions of law or wrong citation in applications, is J not a procedural technical matter within the scope of article 107A of the Constitution of the United Republic of Tanzania, 1977 (Cap. 2, R. E. 2002), it is a serious omissi~n that goes to the root of the matter. See also China Henan International Co-operation Group v. Salvant K. A. · Rwegasira (2006] TLR. 220 (CA). Page 6 of 7 .. .. For these grounds, l strike out this ·application for being incurably defective . · I however, order that each party shall bear his own costs because, the district court . had ·a h~nlin 'this _tragedy to the parties:by is~uing a defective decree, which said imperfect decree was the sole reason for the withdraw of the appeal, hence this 't application. It .is· ordered accordingly. ~ JHK.UTAMWA WOGE· 25/2/2014 25/2/2014 CORAM; Hon. Utamwa, J. For Applicant; present _in person For Respondent;_ absent BC; Mrs. Kaininda. , .. ; Court; Ruling delivered in the presence of the appellant Pili Musa, and in- tv,e absence.of the respondent (though he was notified), this 25 th day of February, 2014 in ·chambers. The respondent be notified. JHK.UTAMWA WOGE 25/2/2014. Page 7 of 7