IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM RULING. This is an application for extension of time to apply for

Transcription

1 1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM 1. GENERAL TYRE 2. SILVA GENERAL DISTRIBUTORS RESPONDENTS Date of last order - 14/2/2008 Date of Ruling - 28/3/2008 RULING Shangwa, J. This is an application for extension of time to apply for leave to appeal to the Court of appeal of Tanzania and for leave to appeal to the said court against the judgment of this court delivered on 13/2/2003 in Civil Appeal No. 215 of The Application is supported by affidavit of Kenedy Mushi (Applicant).

2 2 One of the major reasons which was given by the Applicant for his failure to apply for leave to appeal to the Court of Appeal within time, that is, with 14 days from the date of the decision of this court is that he was admitted at Mwananyamala Hospital for being treated of malaria and that he was detained there up to 27/2/2003 when he was discharged. Counting from 13/2/2003 when the judgment of this court was given to 27/2/2003 when he was discharged from Hospital, it will be seen that there is a period of 15 days. This means that when the Applicant was discharged from Hospital, he was out of time by one day. Counsel for the 1 st Respondent Mr. Kariwa did not support the reason given by the Applicant for his failure to apply for leave to appeal to the Court of Appeal of Tanzania within time. He said that on 26/2/2003, the Applicant was able to file a notice of appeal. He submitted that on the date he filed his notice of appeal, he could as well have filed

3 3 his application for leave. He contended that as the Applicant was able to file a notice of appeal while being admitted in Hospital, he could still have filed his application for leave during the period of his admission in Hospital for the purposes of being in time. He observed that this application was filed almost more than ten months from the date of the decision. Furthermore, he contended that the points raised by the Applicant are questions of facts and not law. In my view, an application for extension of time to apply for leave to appeal has no time limit. Such an application can be preferred in court after 10 months from the date of the decision as it happened in this case or more. In this case, the reason given by the Applicant for extension of time to apply for leave to appeal to the Court of Appeal of Tanzania is reasonable. Malaria is a terrible disease which causes fever to rise and fall any time. Therefore, I differ with counsel for the Respondent that

4 4 during the period when the Applicant was admitted at Mwananyamala Hospital for treatment of malaria, he was in a position to apply for leave to appeal to the Court of Appeal within time. This is notwithstanding the fact that during the same period he was able to file his notice of appeal. Moreover, it is simpler to file a notice of appeal than to file a chamber application supported by affidavit which needs the services of a qualified lawyer. I believe that during his admission at Mwananyamala Hospital, it was not easy for him to find a lawyer. Therefore, I do grant his application for extension of time to apply for leave to appeal. The problem here is that counsel for the Applicant combined an application for extension of time to file an application for leave with an application for leave itself. After pondering for a little while, I have decided to consider his application for leave as well. However, I am compelled to advise the Applicant that an application for extension of time to apply for leave should never be combined in the same chamber

5 5 application. In other words, an applicant who has failed to apply for leave to appeal within time should first seek for extension of time to apply for leave to appeal. After obtaining such extension, then an application for leave to appeal may be preferred. Without that there would result a problem of dealing with both different applications at the same time. I now proceed to consider the applicant's application for leave to appeal. The Applicant's points of law upon which his application for leave is based are found at paragraph 7 of his affidavit. They read as follows: 1. Whether the Applicant's evidence as to negligent manufacture of the tyres was speculative as held by her Ladyship Kimaro, J. as she then was.

6 6 2. Whether the 1 st Respondent was not negligent in manufacturing the suit tyres and whether the Applicant, given the circumstances of the accident, had failed to prove that the 1 st Respondent was negligent in manufacturing the suit tyres as held by the appel/ate judge. 3. Whether it was not proper for the appel/ate judge on the strength of the uncorroborated statements on exhibit 5 to infer negligence on part of the 1 st Respondent that the suit tyres were defective.

7 7 In his written submissions, counsel for the 1 st Respondent, was of the view that the points raised by the Applicant for leave to appeal to the Court of Appeal of Tanzania are points of facts and not law. In my opinion, the points raised by the Applicant at paragraph 7 of his affidavit are pure points of law to be addressed to the Court of Appeal of Tanzania for its decision. The question as to whether or not there was evidence to prove negligence in the manufacture of the tyres on the part of the 1 st Respondent and the question as to whether or not the evidence given by the Applicant (plaintiff) to show that there was negligence in the manufacture of the tyres by the 1 st Respondent Company (1 st defendant) was merely speculative are important questions of law which are involved in the decision of this court and are worthy of consideration by the Court of Appeal of Tanzania.

8 For these reasons, I do grant the application for leave to appeal as well. Each party to bear its own costs. A.Shangwa JUDGE 28/3/2008 Delivered in open court this 28 th day of March, 2008 in the presence of Mr. Kariwa for the 1 st Respondent holding brief of Mr. Massawe for the Applicant. ~<;. A.Shangwa JUDGE 28/3/2008