20051206 TZCA Dar es salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 28 OF 2005 In the Matter of an Intended Appeal 1. THE LIQUIDATOR OF TANZANIA CROWN ] CORK CO. LTD. ] ............ APPLICANTS 2. VICENT BRUNO MINJA ] VERSUS IDOi SEMVUA MSANGI ................................................. RESPONDENT (Application for striking out Notice of Appeal from the Ruling and Order of the High Court of Tanzania, Land Division, at Dar es Salaam) (Kileo, J.) dated the 25 th day of February, 2005 in Land Case No. 132 of 2004 RULING MSOFFE, J.A.: In this application the applicants are moving the Court under rule 82 to strike out the notice of appeal dated 2/8/2004 filed by the respondent. Land Case No. 132/2004 of the High Court of Tanzania (Land Division) was struck out on 29/7/2004 for being res Judicata. The High Court (Kileo, J.) held that the subject matter and the reliefs claimed were the subject of Civil Case No. 54/2002 of the District Court of Kinondoni which was conclusively determined. On 2/8/2004 2 the respondent applied for copies of proceedings. On 14/12/2004 the Registrar wrote a letter to the respondent to inform him that the proceedings were ready for collection. The Registrar also issued a certificate of delay excluding the days from 29/7/2004 to 15/12/2004. The applicants' case is that sixty days from 15/12/2004 expired on 13/2/2005 without the appeal being filed, hence the application for striking out the notice of appeal. On the other hand, the respondent's position is generally that the appeal could not be filed within the above stated period because leave is yet to be granted. Messrs. Eustace Rwebangira and Nyangarika, learned advocates for the applicants and the respondent respectively, addressed me at length on the merits or otherwise of the application. In the process they cited a number of authorities in support of their respective positions in the matter. I am grateful to both learned counsel. However, it is not out of discourtesy if I do not make reference to all the cases cited. The central issue is whether there was failure on the part of the respondent to take an essential step in instituting the appeal. From 3 I, the affidavit, affidavit in reply and the submissions of counsel for both parties, it is generally agreed that the notice of appeal and the application for copies of proceedings were made within time. It is also generally agreed that an appeal against the above mentioned decision requires leave. An application for leave was made to the High Court. On 25/2/2005 the High Court dismissed the application. On 11/3/2005 the respondent filed Civil Application No. 37 /2005 to this Court seeking leave. The application was filed within a period of 14 days after the refusal by the High Court. The application is still pending. It will follow that it was wrong to bring this application at this point in time when the application for leave now pending be fore this Court is determined. Mr. Eustace Rwebangira urged at length that the respondent ought to have applied for extension of time to file the intended appeal before expiration of the 60 days period while at the same time pursuing the application for leave. In support of this proposition he cited Wetcu Limited v. Michael Junga - Consolidated Tabora Reference Nos. 1 and 2 (unreported) and Mrs. Kamiz Abdullah M.D. Kermal v. The Registrar of Buildings and Another (1988) TLR 199. With respect, I appreciate the logic of this argument. But 4 't the logic must be applied within the context of this application. Wetcu and Kamiz are distinguishable in two main aspects. One, they had nothing to do with an application under R. 82. One was a reference and the other was an appeal. Two, by their nature there were no applications for leave pending in those two cases. I may add that Mr. Rwebangira's argument, though attractive, is premature. The argument could best be relevant in the event leave is granted and the appeal filed. If that was to happen then, in my view, that would be a proper forum for him to argue on the competence of the appeal and thereby advance the above argument. For the above reasons the application is dismissed with costs. DATED at DAR ES SALAAM this 6th day of December, 2005. J.H. MSOFFE JUSTICE OF APPEAL this is a true copy of the original. .) \ \:,... ,;. S.A.~RA SENIOR DEPUTY REGISTRAR