20160229 TZCA Arusha

IN THE COURT OF APPEAL OF TANZANIA ✓ ATARUSHA {CORAM: MBAROUK, J.A.. LUANDA, J.A., And MUSSA, J.A.) CIVIL APPLICATION NO. 23 OF 2014 SIRI NASSIR HUSSEIN SIRI .. .........................................APPLICANT VERSUS RASHID MUSA MCHOMBA {Acting as administrator of the estate of the deceased MUSA MCHOMBA MASSAWE) ........................ RESPONDENT {Application for striking out Notices of Appeal arising from the decisions of the High Court of Tanzania · at Arusha) {Sambo, J.) Dated 18th day of May, 2010, and Dated 15th April, 2013 in Civil Appeal No. 15 of 2009, and Misc. Civil Application No. 52 of 2010 RULING OF THE COURT 29 th February & 1st March, 2016. MBAROUK, J.A.: The applicant has filed a notice of motion made under Rule 89 (2'), of the. Ta'nzania Court of Appeal Rules, 2009 (the Rules) '\ seeking an order of this Court to strike out the two Notices of Appeal 1 lodged on 11 st May, 2010 in respect of the decision of the High Court of Tanzania in Civil Appeal No. 15 of 2009 and. another one lodged 1 on 25 th April, 2013 in respect of the ruling of the High Court of Tanzania in Misc. Civil Application No, 52 of 2010. The notice of motion was supported by the affidavit of Siri Nassir Hussein, the applicant. When the application was called on for hearing, we noted that there was a notice of preliminary objection made under Rule 4 (2) (a) of the Rules lodged by the advocate for the respondent on 20th February, 2016 to the effect that the applicant's application which seeks to strike out two notices of appeal filed in respect of two different decisions is misconceived and thus incompetent. To appreciate what is contained in the affidavit in support of the application, we have seen it prudent to cite the relevant paragraphs in that affidavit as follows:- ''2. That the . decision/judgment of the High . Court of Tanzania in the said Civil Appeal No. 15 of 2009 was delivered on 1Uh May, 2010. A copy of the decision is annexed hereto marked E1 forming part of this Affidavit. 2 3. That on 21st May, 2010 the said MUSA MCHOMBA !"fASSAWE through the services of F. S. Kinabo Advocate lodged in the Court of Appeal of Tanzania a Notice of Appeal against the decision of the High Court of Tanzania in Civil Appeal No. 15 of 2009. A copy of the Notice of Appeal is annexed hereto marked E2 forming part of this Affidavit. 4. That on J 4fh July, 2010/ that is almost after 57 days/ the said MUSA MCHOMBA MASSA WE through the services of F. S. Kinabo Advocate/ lodged in the High of Tanzania at Arusha/ Misc. Civil Application No. 52 of 2010 for leave to appeal to the Court of Appeal of Tanzania against the decision of the High Court in Civil Appeal No. 15 of 2009. A copy of the application is annexed hereto marked £3 forming part of this Affidavit 5. That on 1Jth September✓ 2010 through the services of Mwaluko and Company Advocates/ the applicant herein who was the Respondent in Misc. Civil Application No. 52 of 2010 filed a Counter-Affidavit and also a Notice of 3 Preliminary Objection on a point of law on the ground that the application was hopelessly time barred. Copies of the Counter-Affidavit and the Notice of the Preliminary Objections are annexed hereto and collectively marked as annextures E4(aJ and E4(bJ forming part of this Affidavit. 6. That on 23"d May, 2011 the High Court of Tanzania at Arusha (K.M. M. Samba, 1.) granted leave for the parties to argue the preliminary objection in Misc. Civil Application No. 52 of 2010 by way of written submission within time, but the Applicant's side never filed their written submissions even after several extensions to do so which were granted by the High Court. 7. That after several adjournments, on 27 August, 2012 Advocate F. S. Kinabo prayed to withdraw form representing the said MUSA MCHOMBA MASSAWE who by then was deceased in Misc. Civil Application No. 52 I of 2009 and one RASHID MUSA MCHOMBA that is the 4 Applicant herein prayed to be joined as an Administrator of the estate of MUSA MCHOMBA MASSA WE 8. That on lsth day of April 2013 the High Court of Tanzania (K.M.M. Samba, J.) delivered the ruling on the Preliminary Objection, whereby the High Court upheld the Respondents preliminary objection by dismissing Misc. Civil Application No. 52 of 2010 for the reason of being time barred. A copy of the ruling by the High Court of Tanzania is annexed hereto marked ES forming part of this Affidavit. " In this application, Mr. Ezra Mwaluko, learned advocate represented the applicant, whereas Mr. Omar Iddi Omar, learned advocate represented the respondent. At the hearing, the learned advocate for the respondent in support of his preliminary objection submitted that as the application has combined two applications and seeks to move the Court to strike out two notices of appeal arising from two different decisions of the High Court i.e. one, from Civil Appeal No. 15 of 5 2009 (main suit) dated 18th May, 2010 and two, from Misc. Civil Application No. 52 of 2010 dated 15th April, 2013, the aRplication is omnibus. For being omnibus, the learned advocate for the respondent urged us to strike out the application and each party to bear his costs. In support of his preliminary objection, Mr. Omar cited the decision of this Court in the case of Rutagatina C. L. vs. The Advocates Committee and Clavery Mtindo Ngalapa, Civil Application No. 98 of 2010 (unreported). On his part, the learned advocate for the applicant after resisting the objection for some time, he later conceded to it and prayed for each party to bear his costs. On our part, after having looked at the record, we agree with the learned advocate for the respondent that the application is omnibus as it seeks to strike out two notices of appeals arising from two different decisions of the High Court. One, notice of appeal is against the main suit from the High Court in Civil Appeal No. 15 of 2009 dated 18th May, 2009 and another notice of appeal is against the decision of the High Court from an application for leave to 6 appeal to this Court in Misc. Civil Application No. 52 of 2010 dated 15th April, 2013. We are of the opinion that the applicant ought to have filed two different applications. In the case of Rutagatina C. L. (supra), this Court observed as follows:- ''.A close look at the general scheme of the Court Rules/ particularly Rules 44-66 appearing under PARTS III, IIIA and 1118/ will show that all of them have one common feature. Each one of those rules, as and where is relevant refers to an application. None of them talks of applications. It follows that under the Rules it was never envisaged that an intended applicant would . file applications. It is no wonder that Rule 49 prescribes the manner in which a formal application can be presented to the Court. Thus/ it occurs to us that there is 7 I no room in the Rules for a party to file two applications in one/ as happened here. " All said and done, we are increasing of the view that the Court of Appeal Rules, 2009 does not provide for the filing of omnibus application. For that reason, we are constrained to uphold the preliminary objection and strike out this omnibus Application as we hereby do. Each party to bear his costs. DATED at ARUSHA this 29th day of February, 2016. M.S.MBAROUK JUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL K. M. MUSSA JUSTICE OF APPEAL I certify that this is a true copy of the original. 8