20081219 TZHC Dar es Salaam

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IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM CIVIL APPLICATION NO. 112 OF 2008 SHIRIKA LA USAFIRI DAR ES SALAAM (UDA).......APPLICANT

VERSUS 1-1 IJ I IC [IA. L FI 1'].................................................F. ES P() 1',! D E 1 (Application for an order to strike out notice of appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Chande, 3.) dated the 17th day of September, 2007 in Civil Revision No. 7 of 2007

RULING 5 & 19 December, 2008 MUNUO, J.A.: In the Notice of Motion, the applicant, Shirika la Usafiri Dar es Salaam (UDA), through the services of Mr. Jovin Lyimo, learned advocate, seeks to strike out the Notice of Appeal against the decision of Chande, J. as he then was, in Civil Revision No. 7 of 2007 in the High Court of Tanzania at Dar es Salaam. The respondent, Haji Khalfan, appeared in person and resisted the application. 40- 2 It is the contention of counsel for the applicant that the respondent has neither applied for, nor obtained leave to appeal so the intended appeal tis incompetent as the appeal falls under section 5(1) (c) of the Appellate Jurisdiction Act, 1979, Cap 141 R.E. 2002 sO in law, the intended appeal requires leave. Counsel for the applicant deponed to an affidavit stating that the present matter commenced as Employment Cause No. 48 of 1993 in Kisutu Resident Magistrates' Court at Dar es Salaam. The respondent lost the employment cause application for casts. He then filed Civil Revision No. 7 of 2007 in the High Court to challenge the decision of the trial court on costs. Per the Ruling of the High Court, the learned judge upheld the decision of the trial costs because the bill of costs was time barred thence rendering the same incompetent. 17th September, 2007. Chande, J. delivered the Ruling on the Dissatisfied with the decision of the High Court, the

respondent 28th September, 2007 as lodged his Notice of Appeal on the evidenced by annexture Ap-113 to the Notice of Motion. 3 It is the contention of counsel for the applicant, that since Civil Revision No. 7 of 2007 was in effect the first appeal against the Ruling of the Bill of Costs in Employment Cause No. 48 of 1993, the intended appeal would be a second appeal so the respondent should have applied for leave to appeal within 14 days from the date of the High Court Ruling on the 17th September, 2007. The lack of the statutory leave to appeal renders the Notice of Appeal the respondent lodged incompetent, counsel for applicant maintained. He thence urged the Court to strike out the Notice of Appeal in question under Rule 82 of the Court of Appeal Rules, 1979 Cap 141 R.E. 2002 for failure to take an essential step, which is, to obtain leave to appeal within fourteen days of the decision of the High Court. He cited the cases of Dr. Lubero Bakari Mvungi versus Al-Haji Anzuruni J. Mangula Civil Application No. 33 of 2007, Court of Appeal of Tanzania (unreported) and Frasim MRA versus Mashaka Abas and 2 Others, Civil Application No. 26 of 2008, (unreported) wherein the Court struck out appeals for failure to tak•e an essential step. In Dr. Lubero's case cited supra, a second appeal, leave to appeal had not been applied for. Hence the ru Court struck out the Notice of Appeal under Rule 82 of the Court Rules, Cap 141 R.E.

2002. Likewise, in the case of Frasim cited supra, the Court struck out the Notice of Appeal for lack of leave to appeal as stipulated under the provisions of Section 5(1) (c) of the Appellate Jurisdiction Act, Cap 141 R.E.

2002. The respondent was unrepresented. He filed a counter- affidavit arguing that the Notice of Appeal he lodged on the 28th September, 2007 was proper and should not be struck out. He said he did not obtain leave to appeal because the learned judge had been transferred to Arusha. The issue is whether the Notice of Appeal filed by the appellant should be struck out for failure to take an essential step, that is, to obtain leave to appeal. The mafter is straight forward. The Notice of Appeal lodged by the respondent on the 28th September, 2007 is for a second appeal against the rejected bill of costs he lodged in Employment Cause No. 48 of 1993 in the Court of Resident Magistrate at Kisutu Dar es 5 Salaam. The second appeal falls under Section 5(1) (c) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002 so leave to appeal to this Court is mandatory. The respondent should have applied for leave to appeal within 14 days of the decision of the High Court. This he failed to do. Under the circumstances, the application has merit. I accordingly sthke out the Notice of Appeal under Rule 82 of the Court Rules, Cap 141 CE. 2002 for lack of leave o appeal. to The applicant. DATED at DAR ES SALAANI this 19m day of December, 2008. E. N. MUNUO JUSTICE OF APPEiAL I cerhf' that this is a true copy of the onclinci. P. B. KADAY)

DEPUTY REGISTRAR