20120918 TZCA Mwanza

S' . 'ft- (JJ d ,,,. ,· 7/de L. ~LJ /J-L i, t~, LeR~ o~ IN THE COURT OF APPEAL OF TANZANIA ·: ~ , '.} {t ) ATMWANZA ~ <~(1\)2-l-rLf,v,, ; _/ )blNV {)y S ~f_c ~r:d· (CORAM: BWANA, J.A., MJASIRI, J.A., And MANDIA, J.A.) BK CIVIL APPLICATION NO. 7 OF 2011 ZINUNULA CORPORATION (TANZANIA) LTD .......................... APPLISANJ ~.JR- _,,,, ~ c c . d VERSUS fJ ,1-/;;:&, d - TANZANIA REVENUE AUTHORITY ........................................ RESPONDEN~ W-{lfi"" · (Application to strike out notice of appeal filed on 1st August, 2011 'r- - t--(\' challenging the exparte decree of the High Court of Tanzania (Land Division at Bukoba) (Kibella, J.) dated the 11 th day of July, 2011 in Land Case No. 1 of 2008 RULING OF THE COURT 11th & 18th September, 2012 MANDIA, JA.: By Notice of Motion filed in this Court on the 6th day of September, 2011, the applicant, represented by Mr. James Kabakama, learned advocate, applied to this Court to have a notice of appeal filed by the respondent on 1st August, 2011, struck out for failure by the respondent to 1 i. take essential steps prosecuting the appeal. The grounds on which the application is based are:- {1} that the respondent has failed to apply for and obtain leave to appeal to the Court of Appeal. (2) the respondent has not served the notice of appeal to other Judgment debtors who are directly affected by the appeal. In support of the Notice of Motion Mr. James Kabakama swore an affidavit and attached it to the Notice of Motion filed. The respondent is represented by Mr. Salvatory Simsonga Switi, learned advocate. He has filed an affidavit in reply, sworn by himself, in which he deposes, paragragh 5, that he has applied for an extension of time to apply for leave to appeal. This averment in the affidavit of Mr. James Kabakama which showed that up to 6/9/2011 the respondent had not obtained leave to appeal or applied for extension of time to do so. 2 I I ! I To understand the position better ~ brief summary of the case is pertinent. On 11/7/2011 the High Court of Tanzania, Land Division, in Land Case No. 1 of 2008, gave an exparte judgment and decree. Under Section 47 (1) of the Land Disputes Courts Act, Chapter 216 R.E. 2002 of the laws, I I the respondent in the land case had fourteen days within which to file an application for leave to appeal to the Court of Appeal of Tanzania. The fourteen days within which the respondent was to apply for leave expired on 25/7/2011. On 6/9/2011, about thirteen days after the expiry of the time allowed to the respondent to apply for leave, the applicant filed an application to strike out the notice of appeal for failure to take essential I steps, This application to strike out the notice of appeal was served on the ' respondents on 1/11/2011. In the meantime, on 9/9/2011, three days after the applicant had filed his application to have the respondent's notice of appeal struck out, the respondent filed an application for extension of the time within which to apply for leave. The application granting extension of time was determined and leave granted on 12/6/2012 a little bit over nine I I (9) months after the application to have the notice of appeal struck out 3 was filed. The argument by Mr. Salvatory Simsonga Switi is that since he has filed an application for extension of the notice of appeal, and the application had been granted, the application to strike out the notice of appeal has been overtaken by events. The learned advocate also moved this Court not to take into consideration an argument that the late filing of the application for leave was an attempt to pre-empt the application to strike out the notice. He is arguing that' since he was served with the application to strike out the notice on 1/11/2011, he did not know that such application existed so he could not be accused of pre-empting the application. The learned a~vocate went on to argue that the four I defendants took part in the High Court: proceedings. These were the Tanzania Revenue Authority who sold the· suit premises under warrant of distress, Spider Auction Mart who were Court brokers, Amri Amir ·and Amir Amir EI-Habsy & Co who were buyers of the suit premises. He contended that apart from the Tanzania Revenue Authority, the rest of the respondents stand to be indemnified if they suffer loss or damage resulting from the execution of the warrant or distress so they cannot be said to be ' directly affected. In this regard the learned advocate cited KANTIBHAI M. PATEL VS DANYABHAI F. MISTRY (200~) T.L.R. 437. 4 We have taken all arguments presented before us and considered them seriously. Both learned advocates who argued the application before us agree on one thing that the respondent had fourteen days to apply for leave to appeal in Land Case No. 1 of 2008, and he did not do so within the prescribed period. In fact leave was ,granted to him more than nine months after the period of applying for such leave had elapsed. Both learned advocates are also in agreement that the respondent applied for an extension of time to file for leave on 9/9/2011, three days after the applicant had filed an application to have the notice of appeal which the respondent filed in the Court of Appeal struck out. The argument presented by the respondent, through his advocate Mr. Salvatory Simsonga Switi, is that the application for extension is a step towards an appeal to the Court of Appeal. Attractive as the argument is, we are of the opinion that we cannot sustain it. In TWIGA PAPER PRODUCTS LTD Versus THE PARMANENT SECRETARY MINISTRY OF WORKS AND ANOTHER, Civil Application No. 156 of 2007, a similar situation arose. In that application the single justice held:- "When the present application was filed there was no application for extension of time pending in the 5 High Court. The fact that there is now pending in the High Court an application for extension of time to apply for leave cannot be a basis for staying the present application as suggested by Mr. Kamba." We are of the opinion that the argument that an application for extension of time filed after the expiry of time is a step towards an appeal to the Court of Appeal is untenable because it removes the basis of the rule allowing a party to apply for striking out a notice of appeal for failure to take an essential step. Rule 89 (2) anticipates this argument by allowing for the striking out of a notice which has been taken but not within the prescribed time. We are therefore satisfied that the application has merit. We are of the opinion that this ground alone is enough to dispose of the application so we do not need to go into the second ground. The application is allowed with costs. The notice of appeal dated 25th July, 2011 is struck out. 6 ' DATED at MWANZA this 18th day of September, 2012. S. J. BWANA JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL I certify that this is the true copy of the original. Z.A. MARUMA DEPUTY REGISTRAR COURT OF APPEAL 7