KANCHAN VENESH PAREKH v. AGHA KHAN EDUCATION SERVICES 1996 TLR 104 (HC)

 

KANCHAN VENESH PAREKH v. AGHA KHAN EDUCATION SERVICES 1996 TLR 104 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Kyando J

E

CIVIL APPEAL NO 20 OF 1992

1 February, 1993 F

Flynote

Landlord and Tenant -- Housing Appeals Tribunal -- Application for leave to appeal

thereto -- Whether out of time -- Rules 5 and 7 of the Housing Appeals Tribunal

(Appeals) Rules, 1987.

Landlord and Tenant -- Housing Appeals Tribunal -- Important point of law --

Whether a basis for G appeal -- Rule 6 of the Housing Appeals Tribunal (Appeals)

Rules, 1987.

-Headnote

On 15 November 1990, the Respondent filed an application before the Regional

Housing Tribunal for the eviction of the Appellant from the Respondent's house. The

application H failed. On becoming aware of the application's failure on 29 November

1990, the Respondent's advocate applied for the necessary documentation from the

Regional Tribunal in order to lodge an appeal to the Appeals Tribunal. On 23

February 1991, an application was duly lodged with the Appeals Tribunal requesting

leave for lodging a I notice of appeal and for appealing out of time. The Tribunal

granted this application.

1996 TLR p105

The Appellant appeals against this ruling of the Appeals Tribunal. A

Held:

(i) In terms of Rules 5 and 7 of the Housing Appeals Tribunal (Appeals)

Rules, 1987, the appeal itself and the notice of appeal, respectively, were out of time.

(ii) The Tribunal could, in terms of Rule 5, extend the period for lodging

the appeal, B but it is nowhere provided that it could as well extend the period for

lodging a notice of appeal.

(iii) The Tribunal accordingly had no power to extend the time for lodging

a notice of appeal.

(iv) The requirement of Rule 6, which stipulates that an application for

leave to C appeal out of time should set out the reasons why the application cannot

be filed in time, must be satisfied and `sound reasons' be shown before consideration

can be given to whether leave should be granted in order to allow a point of law to be

determined.

(v) The Appeals Tribunal erred in taking into account factors not provided

for by law in granting the application. D

(vi) The appeal succeeds, and the Appellant is awarded her costs of appeal.

Case Information

Ordered accordingly.

Cases referred to: E

1. Samson Kishosa Gabba v Charles Kingongo Gabba (HC) [1990] TLR 133

Kinguji, for the appellant.

Rutabingwa, for the respondent. F

[zJDz]Judgment

Kyando J:

This is an appeal from the decision of the Housing Appeals Tribunal granting an

application by the respondent herein leave to lodge a notice of appeal and an appeal

with the Tribunal out of time.

The facts of the matter are that the Aga Khan Education Services, the respondents G

herein, filed an application in the Housing Tribunal of Dar es Salaam Region seeking

the eviction of Mrs Kanchan Venesh Parekh, the appellant, from their house situated

at Upanga, Dar es Salaam. The application was unsuccessful, in terms of the decision

of H the Regional Tribunal rendered on 15 November 1990. It (the decision) was

apparently given or delivered in the absence of the parties. The respondent's advocate

became aware of it on 29 November 1990. On becoming so aware he applied for the

necessary documents from the Regional Tribunal to prepare an appeal to the Housing

Appeals I Tribunal. On 23 February 1991 has lodged with the latter Tribunal and

application for

1996 TLR p106

KYANDO J

leave for lodging a notice of appeal and for appealing out of time. The Tribunal as A

indicated, granted the application, but the appellant was dissatisfied with that

decision. She therefore brought this appeal to this court.

She is represented by Mr Kinguji, learned advocate, while the respondents are B

represented by Mr Rutabingwa of the Tanzania Legal Corporation.

Rule 7 of the Housing Appeals Tribunal (Appeals) Rules, 1987 provides:

`7(1) Any party who desires to appeal to the Appeals Tribunal shall lodge a

written notice in quadruple C with the Registrar or the Chairman of the Tribunal

which passed the decision, order or determination appealed against.

(2) Every notice shall be lodged within fourteen (14) days of the date of the

decision against which it is desired to appeal.' D

And Rule 5 provides as follows:

`5. No appeal to the Housing Appeals Tribunal from an order, decision or

determination of Regional Housing Tribunal shall be made later than forty five (45)

days from the date of the order, decision or E determination appealed from.

Provided that the Appeals Tribunal may, for good and sufficient cause grant

any party leave to appeal out of time. When any such leave is granted, the Appeals

Tribunal shall specify the date by which the appeal shall be lodged.' F

In the instant case, the Appeals Tribunal observed that the applicant's advocate

should have filed the notice on 29 November 1990 when he learned about the

decision of the Regional Housing Tribunal. If he did so, he would have been in time,

for 29 November 1990 was the last day in computing the period of 14 days from the

date of the decision of G the Regional Tribunal.

At p 2--3 of the cyclostyled ruling of the Appeals Tribunal it is stated:

`Both gentlemen members found no good cause for delaying to file notice of

appeal immediately after H learning about the judgment on 29.11.90. Since notice of

appeal is not accompanied by anything, there was no reason for waiting until he

received a copy of the judgment.

Since no appeal can be accepted without notice of appeal being filed in time

the second prayer for I leave to appeal out of time must also fail.

1996 TLR p107

KYANDO J

Indeed preparation of notice does not necessarily have to wait until you get a

copy of judgment. It is A simply a notice that you have not been satisfied with the

decision and that you are intending to appeal.

If after receiving copy of judgment you find there are no reasons or chances of

success then you can withdraw it. Therefore when the applicant's advocate learned

about the judgment on 29.11.90 which B was the last day for notice of appeal he

would have filed the same on the same day or thereabout and not to sit down ideal till

23.2.91.'

All the above seems to me to be alright. But in spite of that the Tribunal, as shown,

granted the application. In doing so it said it wanted to consider an important point of

law C discerned in the proposed petition of appeal. The question which arises is

whether the Tribunal had powers to extend time, after having found that both the

notice and the appeal were out of time. Mr Kinguji says in his written submissions

that the Tribunal had no such power. Mr Rutabingwa, on the other hand, says it had.

Kinguji relies on Rule 7 of D the Housing Appeals Tribunal (Appeals) Rules, while

Mr Rutabingwa relies on Rule 5.

In my view, the two rules should not be mixed up; they provide for different things

altogether. While Rule 5 deals with appeals, Rule 7 deals with notice to appeal. Now

E looking at the two rules closely, it is clear that while Rule 5 has a proviso,

empowering the Appeals Tribunal to enlarge time for lodging of an appeal, Rule 7

which deals with notice has no provision for extension of time for lodging of a notice.

In the present case, not only was the appeal out of time, the notice too was out of

time. And whilst the F Tribunal could under Rule 5 extend the period for lodging

the appeal it is no where provided that it could as well extend the period for lodging a

notice. (And the Tribunal correctly notes that without a notice there cannot be an

appeal.) The Tribunal acted without powers, and erred, therefore when it concluded

in its decision: G

`In view of this applicant's application for leave to file notice of appeal out of

time is hereby granted. He must do so within 14 days from today. ...' H

As amply shown, it had no power to enlarge the time for giving notice.

But besides the above point, did the Tribunal act in accordance with the law in

granting the application on the ground that there was an important point of law in

the intended I appeal only? Rule 6 of the Housing Appeals Tribunal (Appeals) Rules,

provides:

1996 TLR p108

KYANDO J

A '6. An application for leave to appeal out of time to the Appeals Tribunal shall

be in writing supported by an affidavit setting out the reasons why a petition of

appeal was not or cannot be filed within forty-five days after the date of the decision

or order against which it is desired to appeal, and shall be accompanied by the

petition of B appeal or shall set out the grounds of objection to the decision or

order.'

Mr Kinguji in his submissions argues that the Tribunal had no right to consider the

petition: he says it should only have concerned itself with the reasons why the

respondent failed to appeal in time. In C reply, Mr Rutabingwa contends that the

requirement of a petition of appeal by Rule 6 implies that the Tribunal is supposed to

look into the likelihood of the appeal succeeding 'on precisely whether there are

grounds raised which may invite intervention of the Appeals Tribunal'. In support of

this he D sites the decision of Mwalusanya J in Samson Kashosha Gabba v Charles

Kingongo Gabba (1) and quotes the following passage from the judgment of the

learned Judge:

'... one of the most important points to consider whether or not to allow an

appeal out of time is the likelihood of E success of the intended appeal. The points

raised in the intended memorandum of appeal as well as the judgment of the trial

court have to be considered to see if the intended appeal has any chances of success.

While reasons for the delay in appealing in time are relevant, yet those are not the

only material consideration in those matters.'

F Rule 6 specifically requires that the reasons for the delay must be stated in the

affidavit in support of an application for leave to appeal out of time. As for chances of

success, these are provided for only inferentially by Rule 6, by requiring that a copy

of the intended petition should accompany the application. It follows therefore that

under the Housing Appeals Tribunal (Appeals) G Rules, the important

considerations are the reasons why a petition of appeal was not or cannot be filed

within time. Not only this, the chances of success cannot by themselves be, in

my view, the sole ground for granting an application for leave to appeal out of time.

All the reasons advanced by H the respondents in this case were rejected by the

Appeals Tribunal. So was it justified in granting it on the only ground that a point of

law was involved in the case? In my view, it was not. That ground could only have

been given considera tion of if there were also sound reasons why the I applicant

for extension of time could not file his appeal in time.

1996 TLR p109

KYANDO J

But even if Mr Rutabingwa were right in the submissions he makes, thinking that

chances of A success is the most important consideration in determining an

application for leave to appeal out of time was the decision of the Appeals Tribunal in

this case based on that consideration? Following is what the Tribunal said: B

'But in going through the petition together with the record to see whether if

the application for appeal out of time is allowed there are overwhelming chances of

success I have discovered that there is an important point of law involved, that is

whether the respondent (appellant herein) is a protected tenant or a tenant at will.

The C respondent's husband was employed by the appellants as a teacher whereby

he was also offered accommodation on monthly rent by being deducted 15% of his

salary. When he died his wife (respondent) continued to live there although not

employed by the applicants. The applicants want her out to give room for their

employees. She is refusing to vacate pleading protection as a protected tenant. The

applicants are saying she is D not a protected tenant and therefore not entitled to

the protections of protected tenants.

It will be in the interests of justice if this application is granted so that this

issue can properly be dealt with.'

As can be seen, while the tribunal makes references to overwhelming chances of

success, its E decision to grant the application does not rest on that ground. It rests

instead on the consideration that there is an important point of law involved in the

intended appeal and that it will be in the interests of justice for the point to be

properly dealt with by it, ie the Appeals Tribunal. There is no F finding at all by the

Tribunal that the intended appeal has overwhelming chances of success either on the

point it wanted to properly deal with or on any other ground. The consideration

relied on by Mr Rutabingwa in his submissions therefore was not the consideration

on which the decision of the Tribunal was based. G

In short, the Appeals Tribunal in this matter did not act within the ambit of the

provisions of Rule 6 of the Housing Appeals Tribunal (Appeals) Rules in considering

and determining the application for leave to appeal out of time. This was an error on

its part for it took into account matters not provided for by law in granting the

application. H

Finally, Mr Rutabingwa submits that he was, after all, in time in lodging the notice

and the appeal. I do not think I should treat such submissions with any seriousness

here. He is I the one who went before the Appeals Tribunal pleading that he was out

of time in filing notice and his appeal and sought leave to file them out of

1996 TLR p110

KYANDO J

time. Today he says he was in time! Why did he not say so before the Appeals

Tribunal? A The Tribunal agreed with him and held that he was out of time: he

cannot now turn round and start submitting that he was in time. I reject such

submissions by Mr Rutabingwa.

I held in the result, that the Appeals Tribunal had no power to extend the time for

lodging B notice of appeal in this matter. As an appeal to the Appeals Tribunal has to

be preceded by a notice of intention to appeal, no prayer or valid appeal could have

been lodged in the matter in the absence of such notice. Finally, the Tribunal based

its decision in granting the application for leave to appeal on wrong considerations.

For C these reasons, this appeal succeeds. It is allowed and the appellant is awarded

the costs of the appeal.

1996 TLR p110

E