20131031 TZCA Dar es Salaam

1 I IN THE COURT OF APPEAL OF TANZ~NIA AT DAR ES SALAAM i (CORAM: BWANA, J.A., KAIJAGE J.A. And JUMA, J.A.) CIVIL APPLICATION NO. 3 OF 2011 i I THERESIA KAIJAGE ...........................APPLICANT I VERSUS I FINCA TANZANIA .............................. RESPONDENT I (Application for leave to appeal to the Court of Appeal from the decision of the High Court of Tanzania I at Dare salaam) (Massengi, J.) I dated the 24th day of June, 2010 1 i in Civil Appeal No. 128 of 2009 RULING OF THE COURT 30th October & 8th November, 2013 JUMA, J.A.: This is a second time the applicant Theresia ~aijage is seeking leave to appeal to this Court. Her first application which she filed at I the High Court in Dar es Salaam under section 5 (1) (c) of the I I Appellate Jurisdiction Act, Cap 141 (the Act) was I dismissed by I Muruke, J. on 7/12/2010. This present application was made under -' I Rule 45(b), 48 (1) and 10 of Tanzania Court of Apbeal Rules, 2009 I (the Rules). 2 The background of this application traces ba~k to Civil Case No. I 209 of 2006 which the applicant filed at the Resident Magistrate's I Court at Kisutu against the respondent FINCA T~NZANIA LTD. The I applicant did not succeed because the trial court c;Hsmissed her suit, I prompting her to lodge a Civil Appeal No. 128 of1 2009 in the High Court. That first appeal was heard ex-parte by Massengi, J. because the respondent, though served, failed to turn up for the appeal. I While dismissing the applicant's first appeal 011 24/6/2010, the learned Judge was of the opinion that the trial magistrate had properly evaluated evidence and arrived at a properi decision. Still aggrieved, the applicant contemplated an appeal to this ! Court. But, before that second _appeal the applicant had to apply for I leave of the High Court. She did not succeed to obtain leave because on 7/12/2010 Muruke, J. declined to grant the application for leave to appeal to this Court. While dismissing the applicanrs application for I leave for want of merit, the learned Judge noted that the affidavit I I which the applicant filed in the High Court to support her application I for leave did not mention any point of law arising from the decision of Massengi, J. worth the attention of the Court of Appeal. As we 3 pointed out earlier, this is for a second time the applica·nt is seeking leave to appeal to this Court. At the hearing of the application, the appellant was unrepresented and the Respondent absent despite being notified of the hearing date. We immediately expressed to the ·applicant our concern that her application for leave before us was filed out of time, and she has not been accorded any extension. All what she could say was that she could not get learned counsel to guide ~er preparation of the application she filed on 7/1/2011. That said, we think that the main issue calling for our determination is whether the application was filed within the time prescribed under Rule 45 (b ). I Paragraph (b) of Rule 45 which the applicant employed to move this Court states: (b) where an appeal lies with the leave of the Court, application for leave shall be made in .' the manner prescribed in Rules 49 and 50 and within fourteen days of the decision against which it is desired to appeal or, where the application for leave to appeal has been made to the High Court and refused, within fourteen days of that refusal [Emphasis provided] 4 It is clear from above cited paragraph an applicant seeking \ leave to appeal to this Court after the refusal by the High Court of his I first application has to lodge that application within. fourteen days of the High Court refusing to grant him leave.I The applicant, unrepresented as she was, could not to our satisfaction explain why it took her thirty instead of fourteen days aften Muruke, J. had declined to grant her leave. We took a stand in Regional Manager, TANROADS Kagera vs. Ruaha Concrete Co111pany Limited, Civil Application No. 96 of 2007 (unreported) to state that in terms of Rule 43 (b) an applicant has to make another application to the Court I within fourteen (14) days of refusal of his application for leave by the High Court. Muruke, J. refused the applicant's application for leave on 7/12/2010. The applicant should have filed her second application within fourteen days of that refusal, i.e. by 21/12/2010. She instead filed ; her motion thirty days later, on 7/1/2011. Althougih in her motion, the applicant cited Rule 10 governing discretion ;of the Court to I extend time on good cause, there is nothing either in her notice of motion or supporting affidavit where the applicant specifies any I . 5 ground which can move the Court to e~tend time. As directed by I Rule 48 (1), if the applicant wanted the Court to extend the time ' within which to apply for leave under Rule 45 (b) she should have stated the ground for the relief of extension of time. The applicant ' ' did not. I I ' I I We as a result strike out this application for being filed out of I the fourteen days prescribed by Rule 4~ (b ). We make no order as to costs. I I I I Order accordingly. ' I I DATED at DAR ES SALAAM this 31 st day of October, 2013. ' SJ. BWANA JUSTICE OF APPEAL S.S. KAIJAGE JUSTICE OFAPPEAL I.H. JUMA JUSTICE OF APPEAL I I I Certify that this is a true copy of the original. I Z.A. MIA DEPUTY REGISTRAR COURT OF APPEAL I I ' ' '