20101210 TZHC dodoma

IM IN THE HIGH COURT OF TANZANIA ATDODOMA MISC. CIVIL APPLICATION NO. 14 OF 2009 (HIGH COURT OF TANZANIA AT DODOMA (PC) CIVIL APPEAL NO.47 OF 2003 - KONDOA CIVIL APPEAL NO. 32 OF 2002 - ORIGINAL KONDOA URBAN PRIMARY COURT CIVIL CASE NO. 38 OF 2001) WISI KWA NTISI VILLAGE ........................ APPLICANT Versus MUSSA YUSUFU NTOMOLA & OTHETRS.. RESPONDENT 16/11/ 2010 & 10/12/2010 RULING HON. MADAM, SHANGALI,) This matter started before Kondoa Primary Court, as Civil Case No. 38 of 2001. The respondents Mussa Yusufu Ntomola and Others sued their Village Government, Wisi kwa Ntisi claiming for their payments after working for the Village Government. The respondents lost their case at the Kondoa Primary Court. They appealed to the Kondoa District Court vide Civil Appeal No. 32 of 2002. Their appeal was allowed in the sense that the whole proceedings and the decision of the trial Primary Court was declared null and void. The respondents were directed by the first appellate 2 court to reinstitute their case afresh. The respondents were not satisfied with that decision nor the advice. They appealed to this court (Masanche, J) vide (PC) Civil Appeal No. 47 of 2003. The respondents were successful. They won their second appeal. The applicants Wisi kwa Ntisi Village Government was not satisfied with that decision of the High Court. At the time when the applicant resolved to challenge that decision before the Court of Appeal, he discovered that he was already late and out of time to file his notice of appeal. As a result the applicant has now filed this application seeking for leave to file his notice of appeal out of time. In other words he is seeking for extension of time to file his notice of appeal to the Court of Appeal. The application has been brought under section 14 (1) of the Law of Limitation Act No. 10 of 1971 and any other enabling provision of the law. The Chamber Summons is also supported by the affidavit deponed by one Dachi Dila, member of the Wisi kwa Ntisi Village Government Council. After several non-appearances on the part of the 15th July, 2010 I allowed the applicants to respondents, on proceed with their application in the absence of the respondents. On the ex-parte hearing date i.e. 16th 3 November, 2010, Mr. Dachi Dila request this court to consider the reasons for delay showed in his affidavit and grant the application. He insisted that they were late to file their notice of appeal because they were not informed on the date of the judgement. He argued that the judgement 161h October, 2007 but of the High Court was delivered on they obtained a copy on I st November, 2008. Incidentally this application was filed in July, 2009. With much respect to the applicant this application is untenable in law. It has been filed under wrong provisions of the law. The Law of Limitation Act does not apply to the matters of the Court of Appeal. Section 43 of the Limitation Act provide that the Act shall not apply to applications and appeals to the Court of Appeal - See consolidated Tabora References No. 1 and 2 of 2001, WETCU Limited vs Michael Junga (CA) unreported and Mwz. Civil Application No. 1 of 1998 Stephen Masato Wasira vs Joseph Sinde Warioba and the AG (CA) unreported. The application for leave to the Court of Appeal are government by section 5 (2) © and 11 (1) of the Appellate Jurisdiction Act 1979 and Rules 43 and 44 of the Tanzania Court of Appeal Rules, 1979 (Now Rules 45 and 46 of the Tanzania Court of Appeal Rules, 2009 - GN 368 of 6/11/2009). I . El In my considered view where the application has been filed under wrong provision of the law or failure by the applicant to cite the correct applicable law, renders the whole application incompetent. In the cases of National Bank of Commerce vs Sadrudin Meghji, Civil Application No. 20 of 1997 and Almas Iddie Mwinyi vs National Bank of Commerce and another, Civil Application No. 88 of 1998 all cited in the case of Happiness Fidelis vs Michael Mwailupe and another, Civil Case No. 87 of 2002 (CA) Dar es Salaam (unreported) it was held that wrong citation of the law or rule in a notice of motion renders the application or appeal incompetent. For the above findings,. I have no reason to go further and venture on the merits and demerits of this application. The application is struck out for being incompetent. No order for costs. d' •% M.S.S ALI ) ?DG L. 10/12/2010 ft Ruling delivered todate 10th December, 2010 in the presence of Mr. Dachi Dilla for the applicant and in the absence of the respondent. .op M.S. S,4ALI U JUDG 10/12/2010