20111117 TZCA Dar es Salaam

WAMBELE MTUMWA SHAJiAME 1 .................................................. • • • • • • • • • • APPLICANT I VERSUS MOHAMED HAMIS JUMA (LEGAL REPRENTATIVE OF ASHA JUMA, DECEASED) ................ RESPONDENT {An application for extension of time to lodge an application for review of the judgment of this Court): (Munuo; Msoffe; Kileo, JJA.) Dated 28 th day of February, 2002 in i Civil Appeal Case Nd. 44 of 2002 ,I :I ·····-········••1••··· RULING 14111 & 22 nd November, 2011 BWANA, J.A.: Mohamed Hamis Juma was appointed a legal reptesentative of the late Asha Juma following directions by this Court as per its Order dated 26 November 2010. Henceforth, the record of this matter should reflect these changes. When the matter came up for hearing, -Mr. Israel Hitler Magesa, I learned counsel for the respondent, raised a point .in "limine litis' couched in the following words:- " ...... that this application is not properly before this Court on the ground that the applicant . has failed I to comply with Rule 106 (1) of the Court of Appeal Rules, 2009. And, for that reason, it will be prayed I that the application be dismissed with costs ...... " I It was Mr. Magesa's further submission that failu:re to comply with I • those provisions (of R. 106 (1) of the Court of Appe@I Rules, 2009) or I failure to apply for extension of time under Rule 106 (9) lead to the dismissal of the application. 2 ·,I In reply thereto, Mrs. Crezenscia Rwechµngura, learned[ counsel for the appHcant, submitted that the present application was lodged under R.8 and . . : 9(2) of the Court of Appeal Rules, 1979. lt was filed on • I lr I October 2009, . . . well before the 2009 Rules came into force. The !alter '{Vere gazetted on 29 th January 2010 {GN 36) and came into force on 1!,I February 2010. According to Mrs. Rwechungura, the requkements of R 196(1) of the 2009 Rules are therefore not binding. As such, the "lin1ine in /itis' has no merit. I It is mandatory, under Rule 106(1), that a party t9 a civil appeal or . I application before the Court shall have to file written s8bmissions within , I sixty (60) days after lodging the record of appeal or fi\ing the notice of motion. If the prescribed period elapses' before a party domplies with that requirement, the said party should seek and obtain lelave of the Court· before proceeding with the application. The foregoing procedure was not complied with, by the applicant r I herein. The only reason advanced by ris counsel is t1at the application . I was lodged well before the mandatory provisions of Rul, 106(1) came into effect. It is a sound argument but not conclusive, in my view. To the best 1 3 :I . 1 1 of my knowledge, many laws do contain t ransitional, savi~g provisions to I I cater for situations such as the present one, "ab antecedenl"e'. Rule 130 of the Rules is a typical provision. It provides.thus:- r " In afl proceedings pending whether in the Cou rt or 1 High Court, preparatory or! incidental to,i or I consequential upon any proceeding in court at the time of coming into force ff these rules,: the provisions of these rules shall thereafter apply but without prejudice: . to the validilt! of anything previously done; Provided that: ,1 I (a) if and so far as it is iimpracticable iq any I I such proceedings to apply the provisions of r I these rules, the prac~ice and procidure heretofore obtaining shaH be followed; or .... 1 (b) .............................. . I ( emphasis provided) . I I 4 I 1- I J In my considered view the guidelines provided by Rule 130 (a) are as follows. First, that proceedings, which started prior to coming into fbrce of the new (2009) Rufes are valid. Second, the conduct of the said proceedings shall have inow to comply with the requirements provided for in the new Rules. ' In the instant I matter, filed prior to the 2009 Rules coming into force; there was no statutory requirement to file written submissions. Following the coming I ·1 ii into force of the 2009 Rules, it is now mandatory under Rule 106(1), that written submission be filed. It is particularly important td note here that the new Rules became operational before the present application was 1 heard. Therefore, it is my further view that the requir'ements of Rule 106(1) are binding to the parties herein. Third, this Court may dispense with the mandatory requirements under R 106 (1) if, in the Court's view, compliance with such requirements may 5 .I I I i have to or result into impracticable situation, as Rule 136 (a) provid:{ ~) ! That is not the situation herein. I " A causa de cy' lam of the view that the present ap;plication should be brought into conformity with the requirements of the/ 2009 Rules by I ordering the applicant to comply with the provisions of Rule 106 (1) of the I I Rules. Such an order is "indemnis'. I I I ! Accordingsly, the applicant is ordered to co;,,ply with the p~ovisions of Rule 106 (1) of the 2009 Rules by filing his writ~en submissions kithin sixty (60) I I I days from the date this Ruling is delivered. No order as to ,costs. I I I 1 DATED at DAR ES SALAAM this lih day of Novembe/r, 2011. I I S. J. BWANA JUSTICE OF APPEAL I certify that this is a true copy of the original. J.S. MGETTA. DEPUTY REGISTRAR COURT OF APPEAL 6