THE REGISTRAR OF BUILDINGS v FELIX s/o BWOGI & EXIMPO PROMOTION AND SERVICES 1988 TLR 266 (CA)

THE REGISTRAR OF BUILDINGS v FELIX s/o BWOGI & EXIMPO PROMOTION AND SERVICES 1988 TLR 266 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Nyalali CJ, Makame JJA and Omar JJA

1988

Flynote

Civil Practice and Procedure - Appeals - Adjornment of - Judicial policy of the Court of Appeal.

-Headnote

This was an appeal from the judgment and decree of the High Court, the bill of costs taxed by the High Court and E execution proceedings arising out of the said judgment. When the appeal came up for hearing the respondent applied for an adjournment of the hearing the grounds of which were amply explained in the order of the court.

Held: 

(i) As a matter of judicial policy and practice the Court of Appeal would not adjourn the hearing of an appeal F except in special circumstances;

(ii)application for adjournment granted.

Case Information

Kesaria, for the appellant

Maira, for the respondent

[zJDz]Judgment

Nyalali, C.J., Makame and Omar, JJ.A.: When this appeal came up for hearing this morning, Mr. Maira, H learned advocate for the respondent applied for adjournment of the hearing on the grounds stated in the affidavit filed on 1st November, 1988.

These grounds are substantially to the effect that there is an application by the respondent pending in the High Court in which the respondent seeks two things. Firstly, he is applying for extension I of time to apply to the High Court for leave to appeal to this Court; and secondly he is applying to be allowed by The High Court to appeal to this Court against the Order of the High Court Maina, J. which granted the present appellant an extension of time to give notice of appeal against the judgment of the High Court Mapigano, J. A given on 24th November, 1987 and the Bill of Costs taxed by the High Court in subsequent execution proceedings. Mr. Kesaria learned advocate for the appellant has vigorously opposed this application for adjournment.

Our own examination of the original record of the High Court confirms the fact there is indeed such as application by the respondent pending in the High Court. Undoubtedly, if the application is granted by the High B Court and if the respondent successfully appeals to the Court against the Order of Maina, J. which enables the current appeal to come before this Court as Civil Appeal No. 19 of 1988, the consequence would be to render this current appeal incompetence.

However, Mr. Kessaria has submitted to the effect that the intended appeal by the respondent, which is the subject of the application pending in the High Court is already time-barred by the provisions of Rule 83 of the Tanzania  Court of Appeal Rules, 1979. We find this submission pertinent, but we are of the considered opinion that the proper place and time for making this submission is in the course of the hearing of the application pending in the High Court. It will be open and appropriate for the High court to reject the application on the ground that the intended appeal, is inter alia, already time-barred under the provisions fo Rule 83. If that happens, the current appeal before us will proceed to be heard and decided as expected. But if the application is granted, the current appeal will have to await a decision by this Court

on the intended appeal since it concerns the competency of the current appeal. In the final analysis therefore, since the Court as a matter of judicial policy and practice will not adjourn the hearing of an appeal except under special circumstances, and since the intended appeal amounts to such special G circumstance, we hereby grant the application for adjournment with the following directions.

1. This appeal be fixed for hearing by the Registrar as soon as possible after the High Court has given decision on the pending application; and

2. The High Court to proceed to hear and decide the pending application, as soon as its diary of court business permits.

3. Costs to follow the event.

Order accordingly.

Editorial Board Chairman

The Hon. Mr. Justice F.L. NYALALI, Chief Justice,

Court of Appeal of Tanzania

Managing Editor

Dr. Z.S. GONDWE, Senior Lecturer, Faculty of Law,

University of Dar es Salaam

Editors

The Hon. Mr. Justice H.M. HAMID, Chief Justice, Zanzibar

The Hon. Mr. Justice B.A. SAMATTA, Principal Judge (J.K.),

High Court of Tanzania

Mr. K.S. MASSABA, D.P.P., Attorney-General's Chambers,

Dar es Salaam

Mr. A.M. MISKRY, State Attorney, Attorney-General's Chambers,

Zanzibar

Mr. S.J. JADEJA, Advocate, High Court of Tanzania

Ms. C. ORIYO, Corporation Counsel, Tanzania Legal Corporation

Assistant Managing Editor

Mr. F.D. LUOGA, Lecturer in Law, Faculty of Law,

University of Dar es Salaam

Special Assistant

Dr. N.N.N. NDITI, Senior Lecturer in Law,

Faculty of Law, University of Dar es Salaam

SCOPE OF THE SERIES

These Reports cover cases decided in the Court of Appeal and the

High Courts of Tanzania and Zanzibar.

CITATION

These Reports are cited thus [1987]TLR.

Judges of the Court of Appeal of Tanzania in 1987

1. The Hon. Mr. Justice F.L. Nyalali Chief Justice

2. The Hon. Mr. Justice A. Mustafa Justice of Appeal

3. The Hon. Mr. Justice L.M. Makame Justice of Appeal

4. The Hon. Mr. Justice R.H. Kisanga Justice of Appeal

5. The Hon. Mr. Justice A.M.A. Omar Justice of Appeal

Judges of the High Court of Tanzania in 1987

1. The Hon. Mr. Justice N.Z. Mnzavas Principal Judge (JK)

2. The Hon. Mr. Justice B.A. Samatta Puisne Judge

3. The Hon. Mr. Justice L.M. Mfalila Puisne Judge

4. The Hon. Mr. Justice D.P. Mapigano Puisne Judge

5. The Hon. Mr. Justice K.S.K.Lugakingira Puisne Judge

6. The Hon. Mr. Justice E.W. Katiti Puisne Judge

7. The Hon. Mr. Justice B.D. Chipeta Puisne Judge

8. The Hon. Mr. Justice N.M. Mushi Puisne Judge

9. The Hon. Mr. Justice W. Maina Puisne Judge

10. The Hon. Mr. Justice J.A. Mroso Puisne Judge

11. The Hon. Mr. Justice L.J.R. Chua Puisne Judge

12. The Hon. Mr. Justice R.A. Mwaikasu Puisne Judge

13. The Hon. Mr. Justice F. Munyera Puisne Judge

14. The Hon. Mr. Justice R.J. Ruhumbika Puisne Judge

15. The Hon. Mr. Justice M. Mwakibete Puisne Judge

16. The Hon. Mr. Justice H.E.D. Sisya Puisne Judge

17. The Hon. Mr. Justice Y.S. Rubama Puisne Judge

18. The Hon. Mr. Justice C. Mtenga Puisne Judge

19. The Hon. Mr. Justice H.J. Mkatte Puisne Judge

20. The Hon. Mr. Justice A.G.G. Korosso Puisne Judge

21. The Hon. Mr. Justice A. Bahati Puisne Judge

22. The Hon. Mr. Justice H.A. Msumi Puisne Judge

23. The Hon. Mr. Justice J.L. Mwalusanya Puisne Judge

24. The Hon. Mr. Justice E.E. Kazimoto Puisne Judge

25. The Hon. Mr. Justice B.P. Moshi Puisne Judge

26. The Hon. Mr. Justice L.A. Kyando Puisne Judge

27. The Hon. Mr. Justice W.H. Sekule Puisne Judge

28. The Hon. (Madam) Justice E.N. Munuo Puisne Judge

Judges of the High Court of Zanzibar in 1987

1. The Hon. Mr. Justice A.S.L. Ramadhani Chief Justice

Cases Reported

1987 TLR p1

A