20100621 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA ATTAiBORA (CORAM: RUTAKANGWA, J.A., MBAROUK, J.A. AND MASSATI, J.A.) I • CIVIL APPEAL NO. 22 OF 2009 THE PROJECT MANAGER ES-KO-:INTERNATIONAL INC. KIGOMA ............................. APPELLANT VERSUS l VICENT J. NDUGUMBI .................................................... RESPONDENT I (Appeal from the Judgment of the High Court of Tanzania at Tabora) I (Chingulvile, J.) l Dated the 8 th day ~f February, 2007 in (DC) Civil appeal No. 27 of 2006 --------- ' RULING OF THE COURT 17 & 21 JUNE, 2010 RUTAKANGWA, J.A.: The respondent herein successfully sued the appellant in the I . district Court of Kigoma District fori general damages. Aggrieved by I ' I the decision of the trial court, the !appellant herein appealed to the i . High Court. The High Court (Chinguwile, J.) dismissed the appeal on I I ' I' 8th February, 2008. The appellant was again dissatisfied and duly lodged a notice of appeal to this Court on the same day. The appellant's intended appeal to this Court would have been a second appeal. Leave to appeal under section 5(1 )( c) of the Appellate Jurisdiction Act, Cap. 141 (henceforth the Act), was, therefore, necessary. Under Rules 43 (l)(a) and 44 of the Tanzania Court of Appeal Rules, 1979, now replaced by the Tanzania Court of Appeal Rules, 2009 which became operative on 1st February, 2010 (hereinafter the Rules), application for leave to appeal ought to have been made by Chamber Summons in the High Court at Tabora, within fourteen (14) days of the date of the impugned decision. The appellant, for reasons which are not immediately relevant, failed to do so within the prescribed time. The appellant had to apply for ' extension of time, under the provisions of the Act. Section 11( 1) of the Act vests the High Court with jurisdiction "to extend the time for giving notice of intention to appeal.·/ for making an application for leave to appeal; or for a certificate that the 2 . I case is a fit case for appeal, notwithstanding that the time for giving the notice or making the application has already expired. " '' Anxious to take advantage of 'the provisions of sections 5 and I 11 of the Act within the shortest: period possible, the appellant I I decided to file one omnibus application in the High; Court, seeking, I I firstly, extension of time to apply for leave and secondly, leave to appeal to this Court. This was Misc Civil Application No. 2 of 2008, (henceforth the application). 1 ' The application was by Chamb~r Summons and was supported II I by an affidavit sworn to by one Mr. Method Kabuguzi. Mr. Kabuguzi ' I was the appellant's counsel in the High Court on a first appeal. More ' ' I significant in this appeal, is the glaring fact that the said Chamber I Summons seeking to move the High Court to grant the two orders, I I I had been brought under "section j 5(c) and 11 of the Appellate Jurisdiction Act- Chapter 141 R.E. 2002. // .., _) . ' The application was resisted by the respondent, VJ. Ndugumbi, I who all along had been fending for ~imself. Having ,fully heard both I nd parties to the application, the High Court in its ruling dated 22 I July, 2008, held:- '1n the premises I allow th,e application. Leave is hereby granted to the applicant to appeal to the Court I ' of Appeal of Tanz~mia agaln{t pa:'1 of the dec/~'ion of I this Court dated 08/02/2008. '1 ' I Glaringly missing in the ruling: of the High Court is a specific I order granting extension of time to \apply for leave to appeal. It is ' i apparent, that this particular and independent application was inadvertently, not conclusively decid~d. We are borh out on this by the final order extracted from the ru ng which is found on pages 121 - 2 of the record of appeal. It partlyi reads thus:- \ I 4 " Upon this application coming up for final determination before me in the presence of Mr. M.R.G. Kabuguzi learned advocate for the applicant and Mr. Vicent J. Ndugumbi the Respondent in person:- IT IS ORDERED THAT:- 1) The application for leave to appeal to the Court of Appeal of Tanzania against the decision of this Court in D.C Civil Appeal No 27/2006 dated 8/2/2008, is hereby granted. 2) The Respondent will have his costs for this application in any event. It is so ordered." With this order, the appellant lodged this appeal. When the appeal was called to hearing before us, only the respondent appeared in person. He was ready for the hearing. Unfortunately, however, the appellant did not enter appearance. The appellant was not represented by counsel either, as Mr. Kabuguzi had 5 been R.etained for preparation and filing of the appeal only." The 11 notice of hearing sent to the appellant's offices at: Kigoma, was i ' I returned unserved. It was shown, by affidavit that the appellant had closed down its sole offices in Tanzania, at Kigoma and had I presumably shifted to Uganda. 1 As the current address of service of the appellant is unknown, all things being equal, we would no~ have hesitated. to adjourn the I I hearing to another date and ordered the appellant to be served by I . substituted service. After due consideration we were satisfied that I such a course of action would not: be appropriate. in the peculiar ' circumstances of this case. There is a reasonable p'resumption that I I . the appellant might have lost intere_st in the appeal, otherwise he/it I would have informed the appropriate registry of the change in address of service, in terms of Rule 24 of the Rules or Rule 22 of the I ' I 1979 Court Rules before they were revoked. That apart, we have ! _. anxiously asked ourselves whether ior not there was any competent I , appeal before the Court worth adjourning. On this; we directed our minds on the decision of the Court in LEONS SILAYO NGALAI v I 6 I HON. JUSTINE SALAKANA, Civil! Appeal No. 38 of 1996 I I ( unreported). I In NGALAI v. SALAKANA (supra), the Court ap\ly said:- 11 the second aspect is whether this Court. may I adjourn an appeal which is incompetent .... This ,Court I ' had said it before that an incompetent appeal amounts I to no appeal. It follows therefore I the Court cannot I adjourn what it does not have. Under· such I I circumstances, what the court does is to strike out the I I purported appeal off the register. // i I On the authority of this decisidn, we are of the decided opinion I I I that we cannot adjourn this appeal1 which, as is alr.eady obvious, is I i ' incompetent and as such does not exist. Why are w~ saying so? I I I As already shown above, thi~ was supposed, to be a second I I . appeal. The appellant needed leave to appeal. This Court and the I High Court have concurrent jurisdic~ion on the issue: Applications for 7 such leave, however, must be made to the High Court first, but within fourteen days of the impugned decision. The appellant failed to apply for leave within the prescribed period. , He lodged a combined application as already demonstrated. He, succeeded to obtain leave to appeal. However, the application for extension of time to apply for leave to appeal, was inadvertently left undetermined. So the appellant obtained leave to appeal out of time. The application for extension ought to have been determined first and if granted, the application for leave would have been considered and determined accordingly in the same ruling. It goes without saying, therefore, that the application for leave was wrongly granted. This alone, renders this appeal incompetent. See, THE EXECUTIVE SECRETARY WAKF AND TRUST PROPERTY 'COMMISSION ZANZIBAR v. SAIDE SALMIN AMBAR (By he,r Attorney ALI AWADH TAMIM), Civil Appeal No. 104 of 1998 (unreported). This ground alone would have sufficed to dispose of this' appeal. But we shall go farther, as we believe that Misc. Civil Application No. 2 of 2008 (the Application), was incompetently before the High Court. 8 I I As already demonstrated, the chamber summons which instituted the application in the High /court was based on "section l S(c) and 11 of the Apple/late Jurisdiction Act//(the Act). There is no I ' gainsaying that the High Court had be~n wrongly moved to grant the orders sought in the application. This/is because section 5 of the Act I has two sub-sections, i.e (1) and (2) and each one of them has three I paragraphs, i.e (a), (b) and (c). / I I I t It is now settled law that wrong citation of the law, section, I , sub-sections and/or paragraphs of thk law or non-citation of the law I will not move the Court to do what it is being asked to do and : 1 ' accordingly renders the applicatio n incompetent.· ' Indeed, for I applications before this Court, it is s~ecifically provided in Rule 48(1) I ' I , of the Rules that the Notice of Motion shall "cite the specific rule I under which it is brought ...... " We have shown above that b6th sections 5 and 11 of the Act have sub-sections. Moreover, each ~ub-section of se~tion 5 has three I I . paragraphs some of which have ite.ms in roman numerals. In the i ' application before the High Court the applicant/appellant only cited I , I 9 the sections. This was incurably irregu!ar or improper ..' In a situation very similar to the one under scrutiny, the Court; in ANTONY I I TESHA v. ANITA TESHA, Civil Application No. , 10 of 2003 I ( unreported) succinctly held that mer$ citation of the. section of the law "without indicating the subsection and paragraph, is tantamount I i to non-citation'' and renders the appliqation incompete,nt. That being I the clear position of the 1law, we hold: without demur that the entire application before the High Court v.ras incompetent and ought to I have been struck out. This appeal, therefore, is equally ·incompetent. I As the High Court did not do so, this Court· is vested with I I jurisdiction under the Act to do wha~ the High Court failed to do in j order to cure the apparent incurable irregularity in, the High Court I , proceedings. See, for instance, ~ATHIAS EUSEBI SOKA (As I personal representative of the late 1EUSEBI M. SOKA) AND THE I ' REGISTERED TRUSTEES OF MAMA CLEMENTINA I FOUNDATION & TWO OTHERS~ Civil Appeal No. 40 of 2001 ' ( unreported). We, therefore, invoke the provisions of section 4(2) of ! I the Act, and exercise our revisional jurisdiction to cure the irregularity I at the High Court. We nullify and quash the proceedings in the 10 application before the High Court an'd set aside all . orders made therein. All said, we hold that this purported appeal is incompetent as it I emanates from incompetent proceedings in the High Court. We I' hereby strike it out with no orders on ,costs. The appellant is liberty i to institute fresh proceedings in the High Court. I It is so ordered. I 1 1' I DATED at TABORA this 18th day of June, 2010 I I E.M.K. RUTAKANGWA JUSTICE OF APPEAL I I M.S. MBAROUK JUSTICE OF APPEAL S.A. MASSATI JUSTICE OF APPEAL I I j I certify that this is a true copy of the original. I DEPUTY COURT 0 11