20101125 TZCA Zanzibar

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR · (CORAM: MUNUO, J.A., KILEO, J.A. And BWANA, J.A.) CIVIL APPLICATION NO. 2 OF 2010 ZANZIBAR SHIPPING CORPORATION ........................................ APPLICANT VERSUS MKUNAZINI GENERAL TRADERS ........................................... RESPONDNENT (An application for the restoration of interparty hearing of an appeal dismissed by the Court of Appeal of Tanzania at Zanzibar) . {Msoffe, JA, Luanda, JA and Mandia, JA) · ·dated the 10th day of December, 2009 in Civil Appeal No. 16 of 2008 RULING OF THE COURT 24th & 25 th November, 2010 BWANA, J.A: On the 10th day of December, 2009, the Court of Appeal sitting at Zanzibar dismissed Civil Appeal No. 16 of 2008 for want of prosecution, so it is averred by the applicant's counsel, Mr. Godfrey Ukong'wa, and a legal f~ officer of the applicant, one Siwa Ali Khamis. Both aver so in their respective affidavits filed_ in Court. We say they aver so in their affidavits because the applicant did not attach the Order of the Court complained of. We are therefore not definite what the pronouncement of the Court was. By a Notice of Preliminary Objection filed under Rule 4 (2) (a) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the respondent raised four points of preliminary objection, controverting the said application. It is the respondent's submission that the application is time barred; it is an abuse of court process by misrepresentation of the true date of filing; parts of the contents of the affidavits are argumentative, contrary to the law on affidavits; and the verifications of the said affidavits are bad in law for want of sources of information. Before considering the issues raised in the preliminary objection, the Court, suo motu, raised the following two points; the effects of the non attachment of the dismissal order and the non compliance with Rule 51 of the Rules. We are of the settled view that this application can be disposed of by our determination of these two points. 2 The first point is, as stated above, the none attachment of the Order of the Court that dismissed the appeal. It is settled law that an application to the Court must contain all the relevant documents (or copies thereof) that a party intends to rely upon in prosecuting one's application. In the instant application, the order of the Court dated 10th December, 2009, was an essential document. Omitting to attach it was and remains to be fatal to this application. Mr. Ukong'wa could not give a plausible explanation as to why the omission. The other such point, raised suo motu, is filing the application at he wrong registry in the absence of a certificate of urgency. The Rules are very clear on the procedure and location where applications may be lodged. Rule 51 of the 2009 Rules provides thus- "51 (1) An application to the Court shall be lodged in the appropriate registry, save where the ·matter is one of urgency, in which case it may 3 be lodged in the Registry, even if it is not the appropriate registry. (2) A certificate of urgency shall set grounds showing a prima - facie case of the special circumstances or serious hardship faced by the applicant and not merely expedience" (Emphasis provided). The imperative nature of this provision means that the instant application should have been lodged at the registry at Zanzibar save if there were special circumstances, which should have been shown by a certificate of urgency. There is none here. That makes the application incompetent. The foregoing two omissions are, in our considered view, fatal. However, that is not all. It is equally important to state here, albeit briefly, that the application seems to have another irregularity which makes it incompetent. It is evident that the said application was filed out of time and no leave had been sought and obtained. The application was lodged under the 1979 Rules. Under Rule 105 (3) of the said Rules, it was 4 mandatory that the application for the restoration of an appeal which had been dismissed; be lodged within thirty days of the decision of the Court. The appeal was dismissed on the 10th December, 2009. The thirty days period therefore expired on the 10th January, 2010. But since that day was "dies nori' the last day would have been 11 th January, 2010. According to the Court record before us this application was endorsed by the Deputy Registrar of the Court on 13th January, 2010, two days late. No plausible explanation has been given for the two days delay. All in all, this application to restore interparty hearing of Civil Appeal No. 16 of 2008 cannot stand. For the reasons given herein above, it is struck out with costs.· It is so ordered. DATED at ZANZIBAR this 25 th day of November, 2010 E.N.MUNUO JUSTICE OF APPEAL 5 E. A. KILEO JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL I certify that this is a true copy of the original. COURTO 6