In this omnibus application there are two basic prayers. Extension of time to file an application for leave to appeal AND leave

Similar documents
This is an application for revision in terms of the provisions of

appeal, it is desirable to state the following, albeit briefly.

2yh August, Supplement No THE BASIC RIGHTS AND DUTIES ENFORCEMENT (CAP.

REGIONAL MANAGER, TANROADS KAGERA.. APPLICANT VERSUS RUAHA CONCRETE COMPANY LIMITED... RESPONDENT

This is an application for extension of time within which to lodge an. application for leave to appeal against the decision of the High Court sitting

Citation Parties Legal Principles Discussed

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CORAM: RAMADHANI, J. A. NSEKELA, J. A. AND KAJI, J. A. CIVIL APPLICATION NO.

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM. (CORAM: MROSO, J. A, MSOFFE, J. A. AND KAJI, J. A.) CIVIL REFERECE NO.

THE SUMATRA (COMPLAINTS AND REVIEW PROCEDURE) RULES, 2008

LUBUVA, J.A., MUNUO, J.A. And NSEKELA, J.A.) RAHEL MBUYA... APPELLANT VERSUS 1. MINISTER FOR LABOUR AND YOUTH

AT DAR ES SALAAM CIVIL APPEAL NO. 145 OF 2002 MATHEW MBATA...APPLICANT VERSUS DENIS CATHELESS...RESPONDENT RULING

pc. CIVIL APPEAL NO. 1 OF 2002 (Original Civil Appeal No. 37 of 2001 IIala District Court before Mr. Mnengo H.M.)

AT DODOMA DOM CRIMINAL APPLICATION NO. 1 OF HARUNI PIASON 2. IBRAHIM MTANI... APPLICANTS VERSUS DORINA NDALIJE...

In the High Court of Tanzania at Mwanza the appellant and two. others were charged with murder c/s 196 of the Penal Code. It was

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 36 OF 2003 JUDGMENT

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIIVIL APPLICATION NO.111 OF 2006 STANBIC BANK TANZANIA LTD.. APPLICANT VERSUS

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM. MROSO, J.A., NSEKELA, J.A. And MSOFFE, J.A. CIVIL REFERENCE NO. 3 OF 2007

(CORAM: NSEKELA, J.A., KILEO, J.A. And BWANA, J.A.) CIVIL APPEAL NO. 26 OF 2008

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM VERSUS SALMA AHMAD RESPONDENT.

ELIGI EDWARD MASSAWE AND THREE OTHERS (On behalf of 104 others)..applicants ATTORNEY GENERAL AND TWO OTHERS...RESPONDENTS

(Application for stay of execution from the decision of the High Court of Tanzania at Dar es Salaam)

RULING OF THE COURT. The third respondent herein, Elias K. Musiba, used to be an employee

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM

IN THE HIGH COURT OF TANZANIA (OAR ES SALAAM DISTRICT REGISTRY) AT OAR ES SALAAM MISC. CIVIL CAUSE NO.157 OF 2005 ELIZABETH AUGUSTINO SAID PETITIONER

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM

In this application made under Rule 11 (2) (b) of the Court of. Appeal Rules, 2009, the applicant, Indian Ocean Hotels Ltd. t/a

SELEMANI RAJABU MIZINO... APPLICANT VERSUS 1. SHABIR EBRAHIM BHAIJEE 2. FAYEZA SHABIR BHAIJEE... RESPONDENTS 3. HUZAIRA SHABIR BHAIJEE

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM VERSUS

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM

1. YUSUFU SAME 2. HAWA DADA APPELLANTS VERSUS

JOHN NAIMAN MUSHI APPELLANT VERSUS KOMBO RURAL COOPERATIVE SOCIETY LIMITED RESPONDENT

An Act to amend the Advocates Ordinance

IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT OAR ES SALAAM MISC.COMMERCIAL CAUSE NO.70 OF 2013 VERSUS

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM RULING

The appellants, through the services of the Women's Legal Aid. Centre (WLAC) lodged the present appeal to challenge the dismissal of

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM RULING

(CORAM: MUNUO, J.A., KILEO, J.A. And LUANDA, J.A.) CIVIL APPEAL NO. 75 OF 2008

IN THE COURT OF APPEAL Of TANZANIA AT ZANZIBAR

IN THE HIGH COURT OF TANZANIA AT OAR ES SALAAM RULING

Transport Licencing (Goods Carrying Vehicles) (Amendment) SUBSIDIARY LEGISLATION

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

THE UNITED REPUBLIC OF TANZANIA THE TAX REVENUE APPEALS ACT CHAPTER 408 REVISED EDITION 2006

STAY OF EXECUTION-whether the application has been overtakenusually,

Johnson Maina Stephen & 26 others v Unity Housing Co-operative Society [2017] eklr REPUBLIC OF KENYA

THE ADVOCATES (DISCIPLINARY AND OTHER PROCEEDINGS) RULES. (Section 14) PART I PRELIMINARY PROVISIONS (rules 1-2)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL REFERENCE NO.12 OF 2004 DAVID MWAKIKUNGA. APPELANT VERSUS

MROSO, J.A., NSEKELA, J.A. And RUTAKANGWA, J.A.) FRANCISCA MBAKILEKI... APPLICANT VERSUS TANZANIA HARBOURS CORPORATION RESPONDENT

In the District court of Moshi, the appellant Omary Majid was. charged with and convicted of Armed Robbery contrary to sections

Civil Appeal No 4 of 2003 in the court of Appeal of Tanzania at Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL SESSION CASE NO. 36 OF 2003 REPUBLIC VERSUS PROCEEDINGS

SUBSIDIARY LEGISLATION

Citation Parties Legal Principles Discussed. Valambhia, Civil Application No.18 of 1993 (Unreported). J.A, NSEKELA, - that it has inherent J.

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM

IN THE HIGH COURT OFT AN ZAN IA (COMMERCIAL DIVTSfON) AT DAR ES SALAAM

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) JUDGMENT

1 ST ADILI BANCORP LIMITED.APPELLANT VERSUS ISSA HUSSEIN SAMMA...RESPONDENT

GOVERNMENT NOTICE NO published on. THE APPELLATE JURISDICTION ACT (CAP.141) RULES. (fv1ade under section 12) THE TANZANI COURT OF APPEAL RULES, 2009

IN THE FAIR COMPETITION TRIBUNAL AT DAR ES SALAAM TRIBUNAL APPEAL NO. 3 OF 2013 TANZANIA ELECTRIC SUPPLY CO. LTD...APPELLANT VERSUS JUDGMENT

CHECKLIST FOR RULE 61 APPEALS TO AN APPEAL DIVISION I N D E X Certificate or Agreement Respecting Evidence

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM ALLAN T. MATERU APPELLANT / APPLICANT VERSUS AKIBA COMMERCIAL BANK... RESPONDENT

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISCELLANIOUS CIVIL APPLICATION NO. 43 OF 2017 MANSOR AND

An Act to amend the National Sports Council of Tanzania Act, 1967

CHAPTER 26 THE DEEDS OF ARRANGEMENT ACT [PRINCIPAL LEGISLATION] ARRANGEMENT OF SECTIONS

1) LPA 561/2010. versus 2) LPA 562/2010. versus 3) LPA 563/2010

In the Resident Magistrate Court of Shinyanga sitting at Shinyanga, the appellant KAUNGUZA S/O MACHEMBA was charged with four counts.

APPELLATE JURISDICTION ACT

PART II ESTABLISHMENT 3. Establishment of Tanganyika Law Society. 4. Objects. 5. Dissolution and vesting of assets of Former Society.

THE UNITED REPUBLIC OF TANZANIA. GOVERNMENT NOTICE NO 205 published on 22/7/2005. THE PUBLIC PROCUREMENT ACT, 2004 (ACT No.

(CORAM: RAMADHANI, C.J., MROSO, J.A. And RUTAKANGWA, J.A.)

IN THE COURT OF APPEAL OF TANZANIA AT OAR ES SALAAM. (CORAM: KIMARO,J.A., MASSATI,J.A., And MUGASHA,J.A.) CIVIL APPLICATION NO.

S17-65 [Issue 1] STATE CORPORATIONS APPEAL TRIBUNAL RULES, 2001 ARRANGEMENT OF RULES Rule SCHEDULES FIRST SCHEDULE

Ethnic Relations Commission Tribunal Cap.38:02 3

(CORAM: RAMADHANI, C.J., MROSO, J.A. And KAJI, J.A.) 1. JOSEPH CHUWA 2. HASHIM MOTTO.. APPELLANTS VERSUS THE REPUBLIC.RESPONDENT

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA CRIMINAL APPLICATION NO.6 OF 2014 PHILMON ZUBERI APPLICANT VERSUS

THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA, AT KAMPALA

LABOUR COURT RULES, 2017 ARRANGEMENT OF RULES PART I PRELIMINARY

HINDUSTAN CONSTRUCTION COMPANY LTD... Petitioner Through Mr.Dherainder Negi, Adv. with Ms.Smita Bhargava, Adv.

VERSUS THE STANDARD CHARTERED BANK OF UGANDA.1 ST RESPONDENT THE ATTORNEY GENERAL OF THE REPUBLIC OF UGANDA...2 ND RESPONDENT

DRAFT RULES UNDER THE COMPANIES ACT, Draft National Financial Reporting Authority Rules, 2013

(Original/TAN/CMA/28/2008)

IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT :SERVICE MATTER WP(C) No.8133/2011 & CM No.2004/2012 Date of Decision:

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD Special Civil Application No of 2015 AUTOMARK INDUSTRIES (I) LTD Vs STATE OF GUJARAT AND 3 Harsha Deva

THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CHARLES MUSAMA NYIRABU PLAINTIFF VERSUS THE CHAIRMAN (DSM) CITY COMMISSION & OTHERS...

THE UNITED REPUBLIC OF TANZANIA ACT SUPPLEMENT

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: SAMATTA, C.J, MUNUO,J, A, AND RUTAKANGWA, J, A.)

Ar_JlAB K~ ~bij.bb.m

In this application, the applicant has moved the Court to review its. decision in Criminal Appeals Nos. 128 and 129 of 2007.

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION. WRIT PETITION (CIVIL) No.933 OF Dr. RAM LAKHAN SINGH. PETITIONER

IN THE RETIREMENT BENEFITS APPEALS TRIBUNAL AT NAIROBI. CIVIL APPEAL No. 1 of CPF Financial Services Limited Appellants -VERSUS

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION NO 305 OF 2010

IN THE HIGH COURT OF TANZANIA AT OAR ESSALAAM MISC. CIVIL APPLICATION NO. 38 OF VERSUS RULING

SMALL CLAIMS COURT ACT

Labour Court Rules, 2006 ARRANGEMENT OF RULES PART I

THE UNITED REPUBLIC OF TANZANIA. No. 47 OF 1968

DRAFT RULES UNDER THE COMPANIES ACT, 2013

IN THE HIGH COURT OF DELHI AT NEW DELHI WRIT PETITION (CIVIL) NO OF Association for Democratic Reforms Versus

IN THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA-1 ST INSTANCE DIVISION

nmco OIL REFINERIES LIMITED APPELLANT

MINISTRY OF CORPORATE AFFAIRS NOTIFICATION New Delhi, the 20th December, 2016

POLICY FORUM LIMITED

Transcription:

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MSOFFE, J.A., KILEO, J.A., And BWANA, J.A.) CIVIL APPLICATION NO. 98 OF 2010 RUTAGATINA C.L. APPLICANT VERSUS 1. THE ADVOCATES COMMITTEE 2. CLAVERY MTINDO NGALAPA RESPONDENTS (Application for extension of time to file an application for leave to appeal and leave to appeal against the decision of the Full Bench of the High Court of Tanzania at Dar es Salaam) 11 &.. February 2011 MSOFFE, J.A.: (Mandia, Mlay And Shangwa, JJJ.) dated the 6 th day of September, 2006 in Civil Appeal No. 221 of 2005 -------------- RULING OF THE COURT In this omnibus application there are two basic prayers. Extension of time to file an application for leave to appeal AND leave to appeal against the decision of the Full Bench of the High Court dated 6/9/2006 in Civil Appeal No. 221 of 2005. In the notice of motion it is evident that the application is made under Section 5 (1) (c) of the Appellate Jurisdiction Act (CAP 141 R.E. 2002) and Rules

2 10, 45 (b) and 49 (1) of the Tanzania Court of Appeal Rules, 2009 (hereinafter the Rules). The notice of motion is supported by the affidavit of the applicant Mr. Christian Laurent Rutagatina. When the application was called on for hearing we wanted to ascertain from Mr. Israel Magesa, learned advocate for the applicant, whether or not the application, in its present form, is properly before the Court. He seemed to agree that this indeed is an omnibus application. Inspite of this, he however invited us to invoke Rule 4 (1) of the Rules and proceed to determine the application on merit. In saying so, we understood him to mean that the application, though omnibus, is properly before the Court. The respondents were duly served but none entered appearance. So, before asking Mr. Magesa to address us on the above point we invoked Rule 63 (2) and proceeded in the absence of the respondents. It follows therefore that we got no input(s) from the said respondents on the above point.

3 With respect, we decline the invitation extended to us by Mr. Magesa for reasons which will emerge hereunder. Rule 4 (1) of the Rules reads as under:- 4 (1) The practice and procedure of the Court in connection with appeals, intended appeals and revisions from the High Court, and the practice and procedure of the Court in relation to review and reference; and the practice and procedure of the High Court and tribunals in connection with appeals to the Court shall be as prescribed in these rules or any other written Law, but the Court may at any time, direct a departure from these Rules in any case in which this is required in the interests of justice. (Emphasis supplied.) It is clear from the above sub-rule that the Court may direct a departure from the Rules in any case in which that is required in the interests of justice. Besides asking us to depart from the Rules, Mr.

4 Magesa did not tell us why he thought the interests of justice in this case require us to depart from the said Rules! In this regard, Mr. Magesa s request was not substantiated or backed up by any reason(s). All in all, we see no justification for making a departure from the Rules in this matter. A close look at the general scheme of the Court Rules, particularly Rules 44 66 appearing under PARTS III, IIIA and IIIB, will show that all of them have one common feature. Each one of those rules, as and where is relevant, refers to an application. None of them talks of applications. It follows that under the Rules it was never envisaged that an intended applicant would file applications. It is no wonder that Rule 49 prescribes the manner in which a formal application can be presented to the Court. Thus, it occurs to us that there is no room in the Rules for a party to file two applications in one, as happened here. Under the relevant provisions of the law an application for extension of time and an application for leave to appeal are made differently. The former is made under Rule 10 while the latter is

5 preferred under Section 5 (1) (c) of the Appellate Jurisdiction Act read together with Rule 45. So, since the applications are provided for under different provisions it is clear that both cannot be lumped up together in one application, as is the case here. The time frames within which to prefer the applications are also different. For example, by its nature, an application under Rule 10 has no time frame within which to be filed. Under Rule 45 a time frame of fourteen days is prescribed under both (a) and (b) thereto in the case of an application for leave to appeal in civil matters. In determining both applications the considerations to be taken into account are different. An application under Rule 10 may be granted upon good cause shown. An application for leave is usually granted if there is good reason, normally on a point of law or on a point of public importance, that calls for this Court s intervention. Indeed, on the aspect of leave to appeal the underlying principle was well stated by this Court in Harban Haji Mosi and Another v Omar Hilal Seif and Another, Civil Reference No. 19 of 1997 (unreported) thus:-

6 Leave is grantable where the proposed appeal stands reasonable chances of success or where, but not necessarily, the proceedings as a whole reveal such disturbing features as to require the guidance of the Court of Appeal. The purpose of the provision is therefore to spare the Court the spectre of unmeriting matters and to enable it to give adequate attention to cases of true public importance. The same principle was restated in the subsequent decision of this Court in British Broadcasting Corporation v Eric Sikujua Ng maryo, Civil Application No. 133 of 2004 (unreported) as follows:- Needless to say, leave to appeal is not automatic. It is within the discretion of the Court to grant or refuse leave. The

7 discretion must, however be judiciously exercised on the materials before the court. As a matter of general principle, leave to appeal will be granted where the grounds of appeal raise issues of general importance or a novel point of law or where the grounds show a prima facie or arguable appeal (see: Buckle v Holmes (1926) ALL E.R. Rep. 90 at page 91). However, where the grounds of appeal are frivolous, vexatious or useless or hypothetical, no leave will be granted. In both applications the jurisdiction is also different. An application under Rule 10 is at the exclusive domain of this Court. Under Section 5 (1) (c) of the Appellate Jurisdiction Act and Rule 45 of the Rules both the High Court and this Court have jurisdiction to determine applications for leave to appeal.

8 Furthermore, in terms of Rule 60 (1) of the Rules an application for extension of time is heard by a single Justice whereas under subrule 2 (a) thereto an application for leave is determined by the Court. In the totality of the foregoing, we are satisfied that the Rules do not provide for an omnibus application. For this reason, we hereby strike out this omnibus application. As for costs, we wish to state that the first respondent through Mr. Obadia M. Kameya, learned Principal State Attorney, filed an affidavit in reply and a written submission in opposition to the application. This suggests that the first respondent spent some time, money and effort to oppose the application. The second respondent did not file anything to oppose the application. However, the first respondent s affidavit in reply and the written submission relate to the merit of the application. They have nothing to do with the point we have canvassed above. In this sense, it is therefore apparent that we have determined the application on the basis of our own

9 effort and reasoning for which it is only fair that we make no order as to costs. We wish to observe here for the benefit of Mr. Kameya that although his affidavit is titled COUNTER AFFIDAVIT that in fact is an affidavit in reply because there is nothing like a counter affidavit in the Rules. Rule 56 (1) refers to affidavits in reply and not counter affidavits. DATED at DAR ES SALAAM this day of February, 2011. J.H. MSOFFE JUSTICE OF APPEAL E. A. KILEO JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL