IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 80 OF 2007 In the Matter of an Intended Appeal SELEMANI RAJABU MIZINO... APPLICANT VERSUS 1. SHABIR EBRAHIM BHAIJEE 2. FAYEZA SHABIR BHAIJEE... RESPONDENTS 3. HUZAIRA SHABIR BHAIJEE (Application to strike out Notice of Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Kalegeya, J.) dated the 16 th day of August, 2006 in Civil Appeal No. 243 of 2004 -------------- R U L I N G 29 April & 22 May 2008 MROSO, J.A.: There is before me an application by a Notice of Motion which was given under Rules 82, 83(1) and 84 of the Court of Appeal Rules, 1979. In the Notice of Motion it is prayed that a notice of intention to appeal against a High Court decision in High Court Civil Case No. 243 of 2004, be struck out. The Notice of Appeal was lodged on 17 th August, 2006, just a day after the judgment in the High Court was pronounced. It is averred that although the Notice of Appeal was lodged in time no appeal has been instituted in conformity with Rule 83(1) of the Court of Appeal Rules, 1979, henceforth to be referred to only as the Court Rules. Under that provision an appeal to the Court from a decision of the High Court, both in its original jurisdiction and in its appellate jurisdiction, has to be instituted by lodging in
the appropriate registry, within sixty days from the date of the lodging of the notice of appeal, a memorandum of appeal and a record of appeal. However, if an application for a copy of the proceedings is made within thirty days of the date of the decision against which it is desired to appeal and a copy of the letter of application is served on the respondent, then the sixty days will be reckoned after excluding the period which was necessary for the preparation and delivery of the copy to the appellant. It is contended by the applicant that the respondents neither lodged their appeal within sixty days nor sought extension of time to lodge the appeal after the sixty days had elapsed. In his affidavit in reply to an affidavit by the applicant, the first respondent who purported to speak on behalf of the other two respondents (he used the term we ) averred that they had applied for a copy of proceedings and decree but that the Registrar had not supplied them with the documents. That may be so, but there is no proof, or even indication in the affidavit of that respondent of when the alleged application was made. This is important because, as we shall show later, it is not enough that an intending appellant applies for copies of proceedings and other necessary documents, they have to do so within a stipulated period. But, as if in self contradiction, that respondent said in paragraph 5 of his affidavit: 5. That I am advised by my advocate Moses Maira, the advice which I verily believe to be true that the 60 days period start to run on the day one is are (sic) served with the proceedings, Judgment and Decree by the Registrar. But that advice, with respect, is only partially true. You do not reckon sixty days from the date of receiving a copy of the proceedings, judgment and decree regardless of whether or not you complied with the saving in Rule 83 (1) of the Court Rules. Such advice was misleading and a misconstruction of the law. The correct understanding of the law is that an appeal has to be instituted within a period of sixty days from the date of lodging the notice of appeal, which itself has to be lodged within fourteen days of the date of the decision against which it is desired to appeal. See Rule 76(2) of the Court Rules. If an appellant wishes to take advantage of the proviso to Rule 83(1) of the Court Rules to which reference was made earlier in this ruling, it will be necessary to show that an application for a copy of the proceedings was, first, made within the stipulated period of thirty days after the date of the decision against which it is intended to appeal. Second, the letter applying for a copy of the proceedings and the 2
other necessary documents has to be copied to the respondent in the appeal. The respondent in this application makes no claim in his affidavit in reply that he complied with those two requirements in the proviso to Rule 83(1) of the Court Rules. Ms Rwechungura, learned counsel for the applicant, was therefore entitled to invoke the provisions of Rule 82 of the Court Rules which allow the respondent to apply to the Court to strike out the Notice of Appeal for failure by the respondent to comply with Rule 83(1) of the Court Rules or to take any other necessary step. Considering that for the reasons which were explained above the proviso to Rule 83(1) does not help the respondents and is not available to them, the question remains whether the respondents lodged their appeal within the period of sixty days after the date of the decision against which the appeal was intended. It is undisputed that no appeal was instituted within the period of sixty days after the date of lodging the notice of appeal. It was therefore necessary for the respondents to apply for and be granted extension of time to institute the appeal out of time. But there was another pre-requisite. The case originated in the District Court so that an appeal to this Court would be a second appeal. That meant that the respondents needed leave of the High Court to appeal to this Court, as per section 5(1)(c) of the Appellate Jurisdiction Act, 1979. The respondents attempted twice to obtain leave of the High Court to appeal to the Court of Appeal. Twice the High Court, Mihayo, J., declined to grant leave to appeal. Following from the orders of the High Court striking out the applications because of defects in them, the applicant came to a single Judge of this Court, Mbarouk, JA, to seek extension of time to apply for leave to appeal. But since no such application had been made in the first instance to the High Court as required by Rule 44 of the Court Rules, the application was struck out for being incompetent. The position, therefore, is that to this date, nearly 21 months after a notice of appeal was lodged, no leave to appeal against the High Court judgment has been obtained. The reason, clearly, is that respondents applications were always bungled by the counsel who prepared them. Mr. Kesaria, learned counsel for all the respondents, has said from the bar that there is pending in the High Court an application for extension of time to apply for leave to appeal and that such application would be heard on 13 th June, 2008. Surely, if there was such a pending application, such a 3
fact would be stated in an affidavit and not by counsel from the bar. There was no prayer to this Court seeking adjournment to file a supplementary affidavit to bring out such evidence. Based on the claim from the bar that there is a pending application in the High Court for extension of time to apply for leave to appeal, Mr. Kesaria submitted that the present application is premature and cited two cases in support thereof namely 1 Civil Application No. 73 of 2003 Protazi B. Bilauri v Deusdedit Kisisiwe (unreported and 2 Civil Application No. 140 of 2004 Peta Kempap Limited v Mohamed I.A. Abdulhussein (unreported). In both authorities cited by Mr. Kesaria, this Court ruled that an application that an appeal be struck out because of failure to take an essential step was dismissed because, in each case, the application was premature. In the case of Protazi B. Bilauri v Deusidedit Kisisiwe it was evident that the intending appellant had applied in the High Court for leave to appeal to this Court but through no fault of such party, that application had not been heard and, therefore, leave had not been obtained. A single judge of this Court observed in a ruling in that application:- The respondent having complied with the provisions of rule 83, I am of the settled view that he was under no legal obligation to keep reminding the Registrar over and above the letter of reminder. The learned judge made that observation because the applicant had complained that although, indeed, the intending appellant had complied with Rule 83 of the Court Rules and had applied for leave to appeal, he had not been diligent enough to pursue the appeal, presumably by sending several reminders to the Registrar to have the application for leave heard sooner. In Pita Kempap Limited, again a single judge of the Court said: The essential step urged in this application lies in the undisputed fact that no leave to appeal was sought for within time. Hence, in Mr. Maira s view the Court should invoke Rule 82 and strike out the notice for failure by the respondent to take an essential step within the prescribed time. The judge continued: Since the respondent is already in the process of seeking leave it is fair that he be given the opportunity to pursue that step to a conclusive end. 4
In the two cases cited above it was undisputed that at the time the application for striking out the notice of appeal was made, there was pending in the High Court an application for leave to appeal, only that the hearing of those applications had not taken place and, therefore, the leave to appeal, which was an essential step in the prosecution of the appeal, had not yet been granted. Those facts do not obtain in the preset application. There is no evidence before me that there is pending in the High Court an application for extension of time to apply for leave to appeal. Therefore, this application is distinguishable on the facts from the cases cited by Mr. Kesaria. In the circumstances I give no regard to Mr. Kesaria s claim that the application before me is premature. I have to allow the application with costs because for 21 months leave to appeal has not been obtained largely because of inepitude on the part of respondents previous counsel and there was no evidence before me that there was in fact a pending application in the High Court for extension of time to apply for leave to appeal. The notice of appeal which was lodged on 17 th August, 2006 is struck out with costs. It is so ordered. DATED AT DAR ES SALAAM this 16 th day of May, 2008. J. A. MROSO JUSTICE OF APPEAL I certify that this is a true copy of the original. ( F.L.K. WAMBALI ) SENIOR DEPUTY REGISTRAR 5
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