Elias Shuma v. John Dotto Civ no 59 of 2007 (Delay to file suit)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION NO. 59 OF 2007

ELIAS SHUMA..........................................................................APPLICANT

VERSUS

JOHN DOTTO.......................................................................RESPONDENT

(Application for leave to appeal to the Court of Appeal against the decision of the High Court of Tanzania at Dar es Salaam)

(Mandia, J.)

dated 4^th day of August, 2006

in

Misc. Civil Cause  No. 262 of 2002

RULING

26 November &

MSOFFE, J. A.:

         By a notice of motion the applicant is moving the court for an order that:-

(1)        This Honourable Court be pleased to grant leave for the applicant to appeal to the Court of Appeal against the decision of the High Court (Mandia,J.) dated 4/8/2006 refusing to  grant leave to appeal to the Court of Appeal against the decision of Ihema J. refusing to grant extension of time to file an appeal against the Judgment of Kibaha District Court.

      It is common ground that on 13/11/2001 the District Court of Kibaha passed a judgment in Civil Case No. 3/2001 against the applicant herein.  Aggrieved, the applicant desired to appeal against it.  Realizing that he was late in appealing he filed an application in the High Court seeking extension of time to file an appeal.  In a Ruling delivered on 6/7/2004 the High Court (Ihema, J.) dismissed the application.  Still aggrieved, the applicant desired to appeal to this court against the decision of Ihema, J. but realized that he was late in filing a notice of appeal. So, he filed an application in the High Court for extension of time to file a notice of appeal.  On 2/2/2006 the High Court (Mandia, J.) granted the application for filing a notice of appeal out of time.  At the same time, the applicant filed in the High Court an application for leave to appeal against the decision of Ihema, J.  On 4/8/2006 the High Court (Mandia, J.) dismissed the application, hence this application.

        At the hearing of the application the Court, suo motu, invited Mr. L.R. Chua, learned advocate for the respondent, to address it on the competency of the application on account of two points.  One, that it is apparent that it is time barred, and two, that it seeks leave to appeal against the decision of Mandia, J. instead of the decision of Ihema,J.

        In response to the first point, Mr. Chua agreed that the application was time-barred.  However, he was of the view that in the light of the provisions of Article 107 A (2)(e) of the Constitution of the United Republic of Tanzania 1977, the Court should dispense substantive justice instead of being bogged down by technicalities.  In fact, he went on to say, the delay in filing the application should not be blamed on the applicant because he was delayed in getting a copy of the High Court proceedings.  In his view, the application could not be filed without the proceedings.

        As for the second point, Mr. Chua was of the view that the application is competent in that it seeks leave to appeal against the decision of Mandia, J.  According to him, the application ought not to have been one for leave to appeal against the decision of Ihema, J.

        On his part, the respondent, being a layman, did not say much on the above legal points.  At best, his submission was that the decisions by the courts below are sound.

        To begin with the first point, it is common ground that the decision of Mandia, J. was delivered on 4/8/2006 and this application was filed on 24/4/2007.  This was eight or so months after the decision.  In terms of Rule 43(b) of the Court of Appeal Rules, 1979, the application ought to have been filed within a period of fourteen days of the decision of Mandia, J.  So, it is obvious that when the application was filed on 24/4/2007 it was hopelessly out of time.  I appreciate the attempt by Mr. Chua to explain away the delay in filing the application.  With respect however, reasons for the delay, if any, could best be canvassed in an application for extension of time and not in an application of this nature.  

        At this juncture, I wish to touch on the point raised by Mr. Chua that the application should not  be rendered incompetent on account of the delay in filing it because that would be contrary to the provisions of Article 107 A (2)(e) of the Constitution of the United Republic of Tanzania, 1977.  The Article provides:-

107 A (2) Katika kutoa uamuzi wa mashauri ya madai na jinai kwa kuzingatia sheria, mahakama itafuata kanuni zifuatazo, yaani;-

(e) kutenda haki bila ya kufungwa kupita kiasi na masharti ya kiufundi yanayoweza kukwamisha haki kutendeka.

This can be translated as follows:-

(2)        In the determination of civil and criminal matters according to law, the courts shall have regard to the following principle, that is to say:

(e)        administering justice without being constrained unduly by technical requirements which are capable of preventing justice from being done.

In this case, as already indicated, the circumstances are such that I can hardly glean any element of technicalities involved.  In my view, the delay in filing the application would not be the sort of technicality envisaged under Article 107 A (2) (e). Here, a fundamental rule of procedure was flouted. Indeed, the role of rules of procedure in the administration of justice is fundamental. In underscoring this point the Court in China Henan International Cooperation Group v Salvand K. A. Rwegasira, Civil Reference No. 22 of 2005 (unreported), citing Collins in Re Coles and Ravenshear (1970) I KB I, stated:-

“...rules of procedure are intended to be that of handmaids of justice rather than mistresses. That is, their function is to facilitate the administration of justice...”     

And in a recent decision of the Court in Zuberi Mussa v Shinyanga Town Council, Civil Application No. 100 of 2004, (unreported) it was observed:-

“... article 107 A (2) (e) is so couched that in itself is both conclusive and exclusive of any opposite interpretation. A purposive interpretation makes it plain that it should be taken as a guideline for court action and not as an iron clad rule which bars the courts from taking cognizance of salutary rules of procedure which when properly employed help to enhance the quality of justice delivered. It recognizes the importance of such rules in the orderly and predictable administration of justice. The courts are enjoined by it to administer justice according to law only without being unduly constrained by rules of procedure and/or technical requirements. The word “unduly” here should be taken to mean “more than is right or reasonable; excessively or wrongfully; See CHAMBERS CENTURY DICTIONARY, at page 1469. One cannot be said to be acting wrongfully or unreasonably when he is executing the dictates of the law.”

So, from the above cases of Rwegasira and Zuberi Mussa it is clear that not every procedural rule is outlawed by Article 107 A (2) (e). In this case, as already indicated, filing an application within the stipulated period is one of limitation. It is a fundamental rule of procedure. So, failure to file an application within time would not therefore, be a technicality in which Article 107 (A) (2) (e) could be invoked in favour of an applicant.

        Having said so, I now wish to address the second point. As already stated, Mr. Chua is of the view that the application is properly before the Court in that it seeks leave to appeal against the decision of Mandia, J. In other words, in his view, it cannot be an application for leave to appeal against the decision of Ihema, J. With respect, I do not agree with Mr. Chua. In my understanding of Rule 43 (b) when the High Court refuses an application for leave to appeal, an applicant comes to a single judge of this Court by way of a fresh application, not by way of appeal, revision, or reference. This point is well reiterated in Manoharlal Aggarval v Tanganyika Land Agency, Civil Reference No. 11 of 1999  (unreported) thus:-

“...When an applicant for leave to appeal  comes to a single judge of this Court after his application is refused by the High Court, he does so by way of fresh application, not by way of appeal, reference or revision. So, that the single judge exercises original jurisdiction in dealing with the matter...” 

(Emphasis supplied)

In essence therefore, once the applicant’s application for leave to appeal was dismissed by Mandia, J. he ought to have come to a single judge of this Court by way of a fresh application for leave to appeal against the decision of Ihema, J. It was not open to the applicant to come to this Court, as he has done here, to seek leave to appeal against the decision of Mandia, J. What the applicant has done here is improper because a single judge of this court cannot exercise original jurisdiction over the matter dealt with by Mandia, J. The original jurisdiction of a single judge of this court would be over the matter dealt with by Ihema, J.

        For the above reasons, the application is incompetent. It is accordingly struck out. Since, the points the subject of this decision were raised by the Court, suo motu, I make no order as to costs.

        DATED at DAR ES SALAAM this        day of November, 2007.

J. H. MSOFFE

JUSTICE OF APPEAL

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