WILLIAM SHIJA v FORTUNATUS MASHA 1997 TLR 213 (CA)

 WILLIAM SHIJA v FORTUNATUS MASHA 1997 TLR 213 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Lubuva JJA, Samatta JJA and Mroso AgJA

CIVIL REFERENCE 12 OF 1997 B

25 August 1997

(Reference from the ruling of a single judge at the Court of Appeal of Tanzania, Dar es

Salaam, Mfalila JA) C

Flynote

Civil Practice and Procedure - Appeal - Formalities - Effect of appeal having been

struck out - Notice of appeal also disappearing at time of striking out D

-Headnote

The respondent had been granted an extension of time by the Court of Appeal within

which to file an appeal after his appeal had previously been struck out on the ground

that it was incompetent for not having the extracted order attached. The single judge

of the Court of Appeal held that the delay on the part of the respondent had been

technical and not actual and that the original appeal, though E incompetent, had

been lodged in time. In the present reference the applicant contended that the

application ought not to have been granted because it lacked the requisite notice of

intention to appeal as with the striking out of the appeal the notice of appeal had also

disappeared.

Held: F

(i) Applicant was correct in contending that when the appeal had been

struck out the notice of appeal was also struck out: in that situation if a party still

wished to appeal a fresh application had to be filed in the High Court seeking

extension of time in which to give notice of appeal;

(ii) In determining whether the application should nonetheless be granted,

the court took into G account that counsel had been negligent in adopting the

correct procedure and this could not constitute sufficient reason for the exercise of

the court's discretion.

Case Information

Reference allowed and order of single judge set aside.

Cases referred to: H

1. Arusha International Conference Centre v Damas Augustine Ndemasi

Kavishe Civil Appeal No 34 of 1988 (unreported)

2. The Director of Public Prosecutions v Priska Asha Kwamtaza Criminal

Reference No 1 of 1991 (unreported)

3. Maulidi Juma v Abdalla Juma Civil Application No 20 of 1988

(unreported) I

1997 TLR p214

A 4. Kighoma Ali Malima v Abas Yusuf Mwingamno Civil Application No 5

of 1987 (unreported)

5. Shah Hemraj Bharmas and Brothers v Sanotsh Kumar w/o J N Bhola

[1961] EA 679

Makani, Muhula and Werema for the applicants.

B Mwale for the respondentt.

[zJDz]Judgment

Lubuva, JA

In the Court of Appeal Civil Application No 6 of 1997, Dr Fortunatus Lwanyantika

Masha, the respondent had applied for extension of time within which to file the

appeal. The learned single C judge (Mfalida, JA) granted the application in terms of

the following order:

(a) The applicant should file the notice of appeal fourteen days from the

date of this ruling.

D (b) Thereafter the processing of the appeal including the time table will be

in accordance with the rules of this Court.

The applicant being dissatisfied with that decision has filed this reference. In order to

appreciate the E sequence of events in the case its background is necessary. Briefly

stated, it is as follows: The Civil Appeal No 43 of 1996 to this Court was struck out on

the ground that it was incompetent because the extracted order was not annexed. The

Court directed that the respondent who was the F appellant, could, if he so wished,

institute the appeal afresh by making the appropriate application before the High

Court. Following that decision, the respondent filed Miscellaneous Civil Cause No 15

of 1995 in the High Court at Mwanza. In that application the respondent sought to

have the extension of time within which to appeal to this Court against the ruling of

the High Court (Chipeta, G J). The learned judge dealing with that application held

that the High Court had no power to grant extension of time to appeal in a matter

where the right of appeal to this Court lies as a matter of right. That the matter had to

be dealt with by the Court of Appeal, the learned judge further held. H

Consequently, the matter was brought up to this Court in Civil Application No 6 of

1997.

Granting the application, the learned single judge of this Court held that the delay on

the part of the respondent was technical, not actual. The learned single judge took the

view that the original appeal I though incompetent was lodged in time. In the view

of the

1997 TLR p215

LUBUVA JA

learned single judge, the respondent acted immediately after the Court had struck out

the first A appeal. On these grounds, the learned single judge was convinced that

sufficient reason had been given to warrant the extension of time. The application

was allowed.

Before us Mr Mwale, learned Counsel, appeared for the respondent. On the other

hand Mr Makani and Mr Muhula, learned counsel, advocated for the first applicant.

The second applicant, the B Honourable the Attorney General was represented by

Mr Werema, learned Senior State Attorney. Mr Mwale vehemently submitted that

the application before the learned single judge for extension of time to file the appeal

was incompetent because it lacked the pre-requisite notice of intention to C appeal.

This he said was because with the striking out of the appeal by this Court in Civil

Appeal No 43 of 1996, the notice of appeal also disappeared. And so, Mr Mwale

observed, in the absence of the notice of appeal, the application before the learned

single judge was incompetent and therefore D the proceedings were a nullity. The

order by the learned single judge, Mr Mwale further further submitted, arising from

such proceedings is incompetent, it should be set aside. In support of his submission,

Mr Mwale referred us to the decision of this Court in the case of Arusha International

Conference Centre v Damas Augustine Ndemasi Kavishe (1). E

Responding to the submission by Mr Mwale, Mr Makani, learned Counsel strongly

maintained that the application before the learned single judge was competent. He

stated that the issue of the F competence of the application was not raised before the

single judge and therefore it was not open to be raised at this stage on reference. The

only issue before the single judge was an application for extension of time within

which to file the appeal, Mr Makani urged. With regard to the notice of G appeal, it

was the view of Mr Makani that once an application for extension of time to file the

appeal was lodged, by necessary implication there was also an application for

extension of time in which to file notice of appeal. If we understood Mr Makani

properly, he seemed to be of the view that on account of an implied application

regarding notice, the learned single judge granted a relief which was not sought. That

is, the first applicant was granted extension of fourteen days within which to H file

the notice of appeal.

For the second applicant, Mr Werema, learned Senior State Attorney while conceding

that the application before the single judge lacked the requisite notice of appeal, still

he insisted that as the matter involved an election petition which of great public

interest, I

1997 TLR p216

LUBUVA JA

A the learned single judge was properly vested with jurisdiction to deal with the

application.

With respect, we are in agreement with Mr Mwale that when Civil Appeal No 43 of

1996 was struck out, the notice of appeal was also struck out. In that situation, it is

our view that if it is still so desired B to appeal, a fresh application has to be filed in

the High Court seeking extension of time in which to give notice of appeal. In the

case of Arusha International Conference Centre v Damas Augustine Ndemasi Kavishe,

(supra) this Court had occasion to consider the effect of striking out an appeal. In that

case it was stated:

C `The application for extension of time to file the memorandum and record of

appeal presupposes that there is already a notice of appeal in existence. But the notice

of appeal which brought into being the appeal which has just D been struck out,

disappeared with the striking out of that appeal.'

In this case as pointed out by Mr Makani, learned Counsel it is apparent from the

record that the issue of jurisdiction and competence of the application before the

learned single judge was not E raised at the hearing of the application. It seems clear

to us that the complaint before the learned single judge was that the application was

incompetent because Rule 8 was not cited in the heading of the notice of motion. On

this, the learned single judge ruled that, that did not affect the validity of the

application. We can see no ground for faulting the judge on that. Otherwise the

learned single F judge did not have the benefit of hearing the views of the learned

Counsel for either of the parties on the issue of jurisdiction. For that reason, the

application was determined without addressing the question of jurisdiction as such.

However, considering the fact that the Court's proceedings are G governed by the

Court of Appeal Rules, 1979, it is our view that it does not matter whether the issue of

jurisdiction was raised at the hearing of the application before the single judge. We

think the matter was properly raised at the hearing of this reference before us in

order to ensure that the mandatory requirement of the rules regarding the processing

of appeals was complied with. As it turned out in this case, the notice of appeal, a

necessary requirement under Rule 76 which was lacking would not have come to

light if the matter was not raised in the Court. For that reason, and with due respect,

we do not accept Mr Makani's submission that there was an implied application for

extension of time to file notice of appeal. This is because, in situations such as

1997 TLR p217

LUBUVA JA

this where, Rule 76 of the Court's rules explicitly provides for notice of appeal as a

necessary A condition, compliance with it cannot be attained by implication. It has

to be done in fact and nothing short of that. In here, the application before the

learned single judge was filed before an application for extension of time to give

notice of appeal had been made in the High Court. This fact apparently B the

learned single judge realised when he granted an extension of fourteen days in which

to file notice of appeal, a relief which was not sought in the application. In the

circumstances, we do not think that Mr Makani's assertion on implied notice of

appeal does in any way improve the applicant's case. On the other hand, even if Mr

Makani's submission that there was an implied application for C extension of time in

which to file notice of appeal is accepted, we think such an implied application, if

any, would still be incompetent. The reason is that in terms of the provisions of s

11(1) of the Appellate Jurisdiction Act 1979 and Rule 8 of the Court's Rules, this

Court and the High Court have D concurrent jurisdiction to grant extension of time

to give notice of appeal. However, under Rule 44, the application for extension of

time shall in the first instance be made to the High Court. In the instant case, no such

application had been made to the High Court. Therefore, the matter before E the

learned single judge was incompetent for non-compliance with Rule 44. That is, the

Court had no jurisdiction to entertain the application which had not satisfied the

conditions set out under this rule. In somewhat similar circumstances, in the case of

The Director of Public Prosecutions v F Priska Asha Kwambaza (2) this Court held

that as the conditions under Rule 44 were not fulfilled, the learned single judge

wrongly assumed jurisdiction. In this case as the application was decided without

addressing the issue of jurisdiction, with respect we think if the learned single judge

had done so, he would have come to this conclusion. G

Lack of jurisdiction alone would be sufficient to dispose of this reference. But Mr

Mwale, learned Counsel had gone further in his submission before us. He contended

that in order for the Court to exercise its discretion judiciously under Rule 8 to

enlarge time to appeal sufficient reason should be H shown to explain the delay. In

this case, Mr Mwale urged, no reason let alone sufficient reason, had been shown by

the applicant to explain the delay. Mr Mwale went on in his submission, the

distinction drawn by the learned single judge between technical and actual delay did

not in his view, amount to sufficient reason. The delay in instituting the ap- I

1997 TLR p218

LUBUVA JA

A peal and seeking extension of time for filing notice of appeal was due to the

negligence of the applicant's Counsel which is no sufficient reason, Mr Mwale

emphasized. Mr Werema learned Senior State Attorney also conceded that no

sufficient reason had been advanced to explain the delay.

B With regard to the merits of the application, Mr Makani ardently maintained that

there was no negligence in connection with the application for extension of time

either before the single judge of this Court or in the High Court in Mwanza. He said,

it was in connection with Civil Appeal No 43 of 1996 in this Court to which

negligence could be attributed on account of non-inclusion of an C extracted order.

Following the Court's decision in striking out Civil Appeal No 43 of 1996, Mr Makani

submitted, the applicant promptly took action. That is, the application in the High

Court at Mwanza and then the application before the single judge, the subject of this

reference were filed, Mr Makani D observed.

We have given anxious consideration to these submissions on whether sufficient

reason had been given to warrant the extension of time. It is common knowledge that

it is a matter of discretion on E the part of the Court to extend the time in which to

file the appeal or notice of appeal. That such discretion is to be exercised judicially is

also elementary. It is however, to be observed that in the exercise of such power, the

requisite condition is that sufficient reason is to be given. Dealing with the

application for extension of time in which to file the appeal the learned single judge

held that the F delay was technical and that the applicant acted immediately after

the pronouncement of the ruling of the Court striking out the appeal. Apparently, in

an endeavour to comply with the direction of this Court to institute the appeal afresh

by an appropriate application before the High Court, the first respondent filed a

wrong application in the High Court at Mwanza. That is, he filed an application for G

extension of time to appeal to this Court. That was, as correctly stated by Mr Mwale, a

wrong application. It is common ground that an application of that nature is filed in

this Court. The appropriate application envisaged to be filed in the High Court was an

application for extension of time in which to file notice of appeal. Once that

application is granted in the High Court, then the H application for extension of

time to appeal before a single judge would be filed. As it happened, the application to

the single judge of this Court was filed before the appropriate application was made

before the High Court and granted. Thus, the delay was caused by the wrong

application filed in the I High Court. This, we are con-

1997 TLR p219

LUBUVA JA

vinced, is a clear manifestation of negligence on the part of Counsel. In our view,

such negligence A on the part of the Counsel for the first respondent goes to the

very root of the matter, it cannot be regarded as a mere slip. On a number of

occasions, this Court has held that negligence on the part of Counsel is not sufficient

reason for extending time under Rule 8. See the following among others: Maulidi

Juma v Abdalla Juma (3), Kiqhoma Ali Malima v Abas Yusuf Mwingamno (4). The

Court of B Appeal for Eastern Africa had also dealt with this aspect in the case of

Shah Hemraj Bharmas and Brothers v Santosh Kumar w/o J N Bhola (5).

Applying the principle enunciated in these cases to the instant case, we are with

respect, satisfied C that the negligence on the part of the Counsel for the first

respondent in filing wrong applications which caused the delay cannot constitute

sufficient reason. In our understanding, what featured prominently before the learned

single judge was the fact that the wrong application to the High Court D was filed

immediately after this Court struck out the appeal and that the delay in filing the

application which was before him was technical. Had the learned single judge taken

into account the fact that it was the Counsel's act of filing wrong applications which

caused the delay, we think he would well have come to a different decision. E

In the result, and for the foregoing reasons we are resolutely of the view that the

learned single judge dealt with an incompetent application which did not comply

with the Court's Rules 44 and 71. Consequently, the proceedings before the learned

single judge were a nullity. Accordingly, we allow the reference and set aside the

order of the learned single judge dated 21 May 1997. The applicant F is awarded

costs for this reference.

1997 TLR p220

A