board of trustees of cashewnut industry development trust fund vs hemmers incorporation co ltd 2015 tzca 563 13 may 2015

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 220 OF 2014 THE BOARD OF TRUSTEES OF CASHEWNUT INDUSTRY DEVELOPMENT TRUST FU N D ....................................... APPLICANT VERSUS HEMMERS INCORPORATION CO. L T D ........................................ RESPONDENT I (Application for Extension to file a notice of Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Nvanaarika. 3.^ dated 31st day of July, 2014 in Comm. Case No. 108 of 2013 RULING 21st April, & 13 May, 2015 KILEO, J.A.: The applicant has filed an application by way'of notice of motion under Rule 10, 83(1) (3) and 84 (1) of the Tanzania Court of Appeal Rules of 2009. t The application is for the extension of time to file a Notice of Appeal and a letter requesting for copies of proceedings, judgment and decree of the High Court (Commercial Division) decision in Commercial case No. 108 of 2013. The applicant also prays for the Court to grant extension of time to serve i the respondent with a Notice of Appeal and letter requesting for copies of proceedings, judgment and decree of the High Court (Commercial Division) in Commercial case No. 103 of 2013. The Notice of Motion is accompanied % by an affidavit of Peter Kibatala. The application was met with two sets of Notice of Preliminary Objections dated 6/2/2015 and 16/3/2015 respectively filed on behalf of the respondent by Mr. Nduruma Majembe learned advocate. The notice dated t 6/2/2015 contained four grounds of objection but when the matter came up for hearing three grounds were abandoned and only one ground was argued upon and is to the effect that: The Application is premature and improperly before the Court as the application ought first to have been brought at the High Court as provided under Rule 47 of the Tanzania Court of Appeal Rules, 2009 read together with section 11(1) of the Appellate Jurisdiction Act [Cap 141 R.E 2002]. In the second Notice of Preliminary Objection dated 16/3/2015! the applicant submits that the application is incompetent as the applicant! has not filed a written submission in support of the Application within 60 days from lodging of the Application as required under Rule 106 (1) ofjthe Tanzania Court of Appeal Rules, 2009 (the Rules.) Mr. Michael Ngalo, learned advocate and Mr. Nduruma Majembe represented the respondent at the hearing of the preliminary objection. ]The applicant was represented by Mr. Peter Kibatala, learned advocate. The matter is simple and need not detain me. I will first deal with the objection filed on 6/2/2015 to the effect that the application is prematurely ;» j before the Court. It is not disputed that t'he application for extension of time to file a Notice of Appeal was filed directly in this Court. Mr. Ngalo together with Mr. Nduruma Majembe for the respondent pointed out that in terms of rule 47 of the Rules read together with section 11 (1) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002 the applicant had first to file the application in the High Court and only come to this Court on a second^bite. The learned counsel made reference to a number of authorities including f Thomas David Kirumbuyo & Abbas Mhanga versus Tanzania i; Telecommunications Co. Ltd. (Dsm Civil Application No. 1 of 2005), j Tanzania Revenue Authority versus Tango Transport (Ar. Civil Application no. 5 of 2006) and Pius Kuhangaika & Others versus COWI CONSULT LTD (Dsm Civil Application no 191 of 2013) - all unreported all of which underscored the fact that though in applications for extension of time to give Notice of Appeal in terms of section 11 (1) of the Appellate Jurisdiction Act, both the Court and the High Court have concurrent jurisdiction to hear them, nevertheless in terms of rule 47 such applications have first to be made in the High Court. Submitting on behalf of the applicant, Mr. Kibatala argued that under special circumstances, with a view to rendering substantive justice,'the requirement of rule 47 could be dispensed with. He went on to state that the applicant came to this Court not as a matter of convenience but out of necessity considering the fact that the record of the High Court was in this Court on account of applications that had been filed herein. In consider ’this to be a feeble argument. The law is very clear and provides no exception to the requirement laid upon an applicant in an application for extension of time 8 to file a Notice of Appeal. Though the High Court and the Court of Appeal have concurrent jurisdiction to hear an application such as the present one, it has been stated several times by this Court as demonstrated in the cases cited by the learned counsel for the respondents on how such jurisdiction is to be exercised. Rule 47 of the Rules provides: "Whenever application may be made either to the Court or to i the High Court it shall in the first instance be made to the High Court or tribunal as the case may be..." The only exception to this requirement is with regard to criminal matters where the Court may, in its discretion extend the time notwithstanding the fact that no application has been made to the High Court. The present application is a civil matter so it had first to be filed in the High Court. In short I am satisfied that there is merit in the Objection raised with regard to non- compliance with the requirement laid down in Rule 47 of the Rules. The objection is sustained and the application is rendered incompetent. As the above suffices to dispose of the application I doj not have to labor on a consideration of the objection concerning the failure to file written submission. Consequently, the application is found tol be incompetent and is struck out with costs. DATED at DAR ES SALAAM this 23rd day of April, 2015. E. A. KILEO JUSTICE OF APPEAL I certify that this is a true copy of the original. j. ... ^ X '' ‘V I?/ VJ J ■I8 j /% . 4 ■ J»| f ii /'ETY. Mkwizu "i. V -J > { p jEfrUTY REGISTRAR V f ' A f . COURT OF APPEAL