HELEN JACOB v. RAMADHANI RAJABU 1996 TLR 139 (HC)

 

HELEN JACOB v. RAMADHANI RAJABU 1996 TLR 139 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Mkude J

F

MISC CIVIL CAUSE NO 24 OF 1992

13 April, 1994 G

Flynote

Civil Practice and Procedure -- Appeal -- Extension of time to appeal -- Application

for.

-Headnote

The Applicant, having lost her case in the Primary Court of Magomeni, failed to

appeal its decision within the statutory thirty-day period. Her application to the

District Court for H leave to appeal out of time was dismissed. She presently appeals

against that decision.

Held:

(i) The fact that the Applicant was busy complaining to the CCM and the

Minister for Home Affairs is not sufficient reason for extending the time allowed for

I noting an appeal and does not constitute any explanation for failing to appeal in

time.

1996 TLR p140

MKUDE J

A (ii) The application is dismissed with costs.

Case Information

Ordered accordingly.

Cases referred to:

1. Stanley Karama Mariki v Chihiyo Kisia w/o Nderingo [1981] TLR 143

B

2. Aero Helicopter (T) Ltd v F.N. Jansen [1990] TLR 142

Lipiki, for the Respondent.

[zJDz]Judgment

Mkude J: C

This is an application for extension of time to appeal against the order of the District

Court of Knondoni refusing leave to appeal out of time. The applicant had lost the

case in the Primary Court of Magomeni and failed to appeal against the decision of

the Primary Court within the statutory thirty days. She applied for leave to appeal out

of time but the D district court dismissed her application against the order of the

district court and so she is now seeking leave to appeal out of time. In the course of

her submissions the applicant was at pains to explain why she was late in appealing to

the district court against the decision of the district court which refused her leave to

appeal out of time, E even after prompting from the court.

In reply, Mr Lipiki, learned counsel for the respondent, raised a preliminary objection

to the effect that the application is incompetent as it has been made under the wrong

provision. The chamber summons shows that the application is made under s 95 of

the F Civil Procedure Code, while the Civil Procedure Code does not apply to

primary courts. Mr Lipiki submitted that as the matter originated in the primary court

the application should have been made under Rule 3 of the Civil Procedure (Appeals

in Proceedings originating in Primary Courts) Rules 1964. He contended further that

Rule 3 G contains mandatory requirements which an applicant for extension of time

must comply with or else the application will be rejected as incompetent. He cited the

case of Stanley Karama Mariki v Chihiyo Kisia w/o Nderingo (1) as authority for this.

Mr Lipiki further contended that even if the court should hold the application to be

H competent the applicant has given no good reason for the delay. He submitted

that, as shown in the counter-affidavit, the applicant sought justice outside the court

while the case was pending in court and that is when she wasted time. Mr Lipiki

pointed out that I the applicant had been to the Minister for Home Affairs and CCM

at a time when she ought to have been pursuing

1996 TLR p141

MKUDE J

her appeal in the courts. She had even been to the Mfanyakazi Newspaper

complaining A instead of coming to court and pursue her appeal. Mr Lipiki

concluded by urging the court to dismiss the application with costs.

I respectfully agree with Mr Lipiki, learned counsel for the respondent, that this

application is incompetent. Section 95 of the Civil Procedure Code cited in the

chamber B summons has no application in view of the provisions of s 2 of the Civil

Procedure Code which provides as follows:

`2. Subject to the express provisions of any written law, the provisions of the

Code shall apply to all C proceedings in the High Court of the United Republic,

Courts of resident magistrates and district courts.'

As pointed out by Mr Lipiki provision is made under Rule 3 of the Civil Procedure D

(Appeals in Proceedings originating in Primary Courts) Rules, 1964. It follows that

there is no occasion for invoking the inherent powers of the court under Section 95 of

the Civil Procedure Code even if the Code were applicable. See Aero Helicopter (T)

Ltd v F N Jansen (2) in which it was held that where there is a law making provision

for exercise of E power by a court then inherent powers of the court cannot be

invoked.

The applicant has not given any explanation for failing to appeal against the order of

the district court in time. The fact that she was busy complaining to CCM and the

Minister for Home Affairs is not sufficient reason for extending time. F

For the above reasons this application fails and I dismiss it with costs.

1996 TLR p142

A