EDWARD MAREALLE v MAREALLE CLAN AND AKILEI MAREALLE 1992 TLR 275 (CA)

 

EDWARD MAREALLE v MAREALLE CLAN AND AKILEI MAREALLE 1992 TLR 275 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Mapigano Ag JA

17 September, 1992 B

Flynote

Court of Appeal Rules - Service - Whether Rule 46(3) requires service of a copy of the

order of the High Court upon the respondent - Non-applicability of Rule 82(2) to

applications for leave - whether copy of ruling means copy of the order of the High

Court - Rule 46(3) C

-Headnote

In an application for leave to appeal to the Court of Appeal the judge of the High

Court of Tanzania refused leave. On an appeal against the ruling of the judge the

Acting Justice of Appeal found that the appeal was not incompetent for noncompliance

with Rule D 46(3).

Held: There is no Rule that is relevant to the present matter which stipulates that an

application for a copy of the order of the High Court must be sent to the respondent.

It E is not desirable to extend the rigorous provisions of Rule 83(2) to applications

for leave. The words "Order" and "ruling" carry the same meaning and are mutually

interchangeable.

Case Information

Order accordingly. F

[zJDz]Judgment

Mapigano, Ag. J.A.: What is before me is an application for leave to appeal to this

Court against the order of the High Court at Arusha, Munuo, J. in respect of costs. A

similar application to the High Court was refused by Nchalla, J. in his Ruling dated G

18/10/91, a copy of which is attached.

On behalf the respondents Mr. Ngalo, advocate, has raised a preliminary objection

and asked that the application be dismissed with costs. His objection is based on two

assertions, to wit, that the application is time - barred and that it does not conform to

H Rule 46(3). Of necessity I have to consider and determine the merits of this

objection at once.

Mr. Ngalo has said the obvious, that the application was filed long after the period

prescribed by Rule 43(b) had elapsed. The application was filed on 16/12/91, i.e.

roughly two months after the delivery of the Ruling by Nchalla, J. Under Rule 43(b) I

such

1992 TLR p276

MAGIGANO Ag.JA

application should be made within 14 days of the High Court's refusal. A

Counsel for the applicant, Mr. Zaffer Ali, has argued that in computing this period of

14 days the time requisite for obtaining a copy of the Ruling of the High Court must

be excluded. He has pointed out, correctly, that he applied in writing for the copy of

the B ruling with maximum despatch, though he admitted that he did not send a

copy of that letter to the respondents. But there is no denying that he filed the

application soon after he had obtained the copy of the Ruling.

Mr. Ngalo's arguments are that Rule 43(b) does not provide for such exclusion of C

time, and that in any case the failure to send a copy of the letter applying for the

Ruling to the respondents should deprive the applicant of the advantage of such

exclusion. Mr. Ngalo would have us apply Rule 83(2) mutatis mutandis.

Mr. Ngalo has next contended that the application is not accompanied by a copy of D

the order of the High Court's refusal. In his opinion such a copy is required by Rule

46(3), in addition to the copy of the Ruling. To this contention Mr. Zaffer Ali has

replied that the copy of the Ruling is sufficient for the purposes of this application. E

I have been unable to accept Mr. Ngalo's submission that the appellant is not entitled

to the exclusion of the time that was requisite to obtain the Ruling. True Rule 43(b)

does not make any provision to that effect. But I hold that the applicant can fall back

on the provision of the basic limitation statue i.e. the Law of Limitation Act, 1971,

section F 19(2). that should make a great deal of sense and meet the instincts of

justice. Otherwise how can an applicant be expected to come to this Court before he

has obtained a copy of the order of the High Court refusing leave? For if he comes

without the copy of the order he will not have complied with Rule 46(3) and his

application G would be adjudged incompetent.

There is no Rule that is relevant to the present matter which stipulates that an

application for a copy of the order of the High Court must be sent to the respondent.

And in my considered opinion it is not desirable to extend the rigorous provisions of

Rule 83(2) H to applications for leave.

There seem to be some misconception about Rule 46(3) on the parts of both counsel.

That provision is in the following terms:

I (3) Every application for leave to appeal shall be accompanied by a copy of the

decision against which it is desired to appeal

1992 TLR p277

A and where application has been made to the High Court for leave to appeal by

a copy of the order of the High Court.

As far as I understand the Ruling of the High Court that is appended to this

application is precisely the kind of order envisaged by that Rule. It is relevant to

observe that in many legal contexts these words "order" and "ruling" carry the same

meaning and are B mutually interchangeable. Nchalla, J. could, if he had preferred,

perfectly used the word "order" instead of the word "ruling" as a heading for his

decision. Indeed, a ruling is often enough a decision that pertains to interlocutory

matters, such as the instant objection. C

In the upshot the objection is overruled.

Objection overruled.

1992 TLR p277

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