Augustus N. and D.G. Halikas v M.K. Mithani and Mehboob Yusufuali Manji [1984] TLR 74 (CA).

AUGUSTUS N. AND D.G. HALIKAS v M. K. MITHANI AND MEHBOOB YUSUFUALI MANJI 1984 TLR 74 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mustafa JJA

CIVIL APPLICATION 8 OF 1984 H

Flynote

Civil Practice and Procedure - Appeal - Notice of motion - Application for leave to appeal to Court of Appeal and leave to appeal out of time - Whether can be made to the Court of Appeal - R. 44 Court of I Appeal Rules G.N. 102 of 1979.

The applicant had filed a notice of motion for an order that leave be granted to appeal to the Court of Appeal and to appeal out of time.

Held: It is clearly stated in rule 44 of the Court of Appeal Rules that whenever an application may be B made to the Court of Appeal or to the High Court, it shall in the first instance be made to the High Court.

Case Information

Application dismissed.

C No cases referred to:

G.M. Fimbo for the applicants.

M.A. Lakha for the respondents.

[zJDz]Judgment

D Mustafa, J.A.: gave the following ruling. The applicant, represented by Professor Fimbo, had filed a notice of motion moving a judge of this court for an order that; 1. leave may be granted to appeal to the Court for Appeal and E 2. to appeal out of time, on grounds contained in an affidavit filed with the notice of motion. It will be convenient to set out very briefly the background to this matter. The applicant, and another party, had filed an action in the Dar es Salaam Resident Magistrate's Court being R.M. Civil case No.78 of 1972 against the respondent and two other parties in respect of business premises on Plot F 26, Pugu Road, then owned by the applicant and his co-plaintiff. The claim so far as the respondent was concerned, was that the respondent had illegally entered and occupied the suit G premises, and was a trespasser, and should be evicted. The respondent's defence was that he had entered the suit premises with the consent and leave of the then lawful tenant, in order to manage the tenant's business while the latter was away overseas undergoing treatment. Incidentally the tenant was a relative of the respondent. The tenant died in December 1972. 

The deceased tenant's H wife came to Tanzania to wind up the deceased's business and estate. In May 1973 the suit premises were acquired by the Registrar of Buildings under the Acquisition of Buildings Act and the respondent applied for and was taken on as a tenant of the suit premises by the Registrar. He then paid rent to the Registrar. In 1975 he was informed by the Registrar that the suit premises were I restored to the applicant who refused to accept the respondent as a tenant and refused to accent rent tendered. The Resident Magistrate gave judgment in R.M. Civil Case No, 78 on 19th April, 1982 in favour of A the respondent. He found that the respondent was not a trespasser and had been a tenant of the Registrar of Buildings and that he was protected by the Rent Restriction Act. He refused to evict the respondent as he found that there was no evidence of alternative accommodation, that it was not B reasonable to make such an order, and that it was not shown that greater hardship would result if such an order was not made. An appeal from that judgment by the applicant was made to the High Court, and the High Court (Mtenga, J.) upheld the findings of the Resident Magistrate and dismissed the appeal on 16th C November, 1982. 

The applicant is now seeking leave to appeal and of extension of time to appeal. Mr. Lakha for the respondent raised a preliminary objection on the ground that the notice of motion was incompetent. He submitted that the main purpose of the notice of motion was to seek leave to D appeal, and such leave has not been refused by the High Court. The applicant had filed a notice in the High Court on 7th March, 1983 for leave to appeal, but the application was not proceeded with and was withdrawn on 13th December, 1983. He submitted that an application for leave to appeal must first go to the High Court, and he referred to Rule 44 of the Court of Appeal Rules. An E application for leave to appeal would be under the provisions of section 4(1)(c) of the Appellate Jurisdiction Act, and Rule 44 of the Court of Appeal Rules would be applicable. He also submitted that in terms of Rule 55(2) (a) of the Court of Appeal Rules such an application F must come before a full court, not a single judge. He also referred to Rule 43(2)(a) of the Court of Appeal Rules, and submitted that leave to appeal had to be made within 14 days of the decision, and the application was hopelessly out of time. G In reply Professor Fimbo submitted that Rule 55(2)(a) of the of the Court of Appeal Rules only applies to an application for leave to appeal but here he has applied for two orders, one for leave to appeal and one for extension of time, and he contended that in these circumstances the provisions of Rule 44 would be inapplicable. 

He referred to Rule 8 of the Court of Appeal Rules, and submitted H that the Court should only look to that Rule for extension of time for sufficient reason and that Rule 8 overrides other Rules. I confess I am unable to follow the reasoning of Professor Fimbo. An application for leave to appeal I is different in nature from an application for extension of time, though it is possible that some elements may sometimes overlap. It is clearly stated in Rule 44 that whenever an application may be made to this Court or to the High Court, it shall in the first instance be made to the High Court. An application for leave to appeal is such an application. In my view such an application has first to B be made to the High Court, and if not, it has to be rejected as incompetent. On this ground I would reject the application for leave to appeal. I will also briefly deal with the other matters raised in the preliminary objection argued before me. An C application for leave to appeal cannot be heard by a single judge, only by a full court. However, I would simply have referred or transferred the application to a full court, and would not have considered such an error as fatal. 

It is true that leave to appeal has to be applied for within 14 days D of a decision, but this delay is not necessarily fatal, if sufficient reason for the delay could be advanced. That suffices for the preliminary objection. I also heard arguments on the substance of the notice of motion, so that, if I am wrong on the preliminary objection my views on the merit are available. E On the issue of leave to appeal, Professor Fimbo submitted that there was an arguable case, and that points of law were involved. Both counsel referred to the proposed memorandum of appeal filed with the notice of motion. I am of the view that all the grounds of appeal apart from ground 2 F concern matters of fact as found by the courts below, and involve no law. Ground 2 and possibly ground 4 would necessarily involve the production of fresh evidence and can be ignored. Professor Fimbo then submitted that there could be a point of law of public importance arising from the appeal. G He conceded that such a point has not been raised in the proposed memorandum of appeal, nor was it raised in the courts below. The point, he submitted was this: "What are the rights of tenants of the Registrar of Buildings after the premises have been restored to the previous owners". I am not convinced that such an issue could arise from the hearing of this appeal judging from the brief background that I have given at the beginning of this ruling. The issue before the courts below was basically that of trespass, not the incidents attaching to tenancies. If such an issue is to be decided, it must await a suitable opportunity, assuming that a tenancy granted by the Registrar of Buildings I could have incidents different from those of a tenancy granted by an ordinary owner. 

The next point of law raised by Professor Fimbo was that the 1st appellate judge had not held that A the applicant was entitled to rent from the respondent. Mr. Lakha pointed out that the trial magistrate had ordered payment of rent by the respondent to the applicant, and that order remains, as no cross-appeal has been filed. I am unable to understand Professor Fimbo's submission on this point. B I am not satisfied that any legal issue or point is involved and I would have refused leave. As regards extension of time Professor Fimbo submitted that the delay was due (1) to the fault of the former advocate retained by the applicant, that is, Mr. Mahatane and (2) illness of the applicant. He C conceded that the last date for filing the appeal was 20th March, 1983. An application for leave to appeal was made on 7th March, 1983 but he alleged that this application for leave to appeal was withdrawn on 13th December, 1983, by Mr. Mahatane without the knowledge or instruction of the D applicant. He alleged that the applicant came to know of this withdrawal by Mr. Mahatane's letter to the applicant dated 2nd July, 1984. However, it is clear that a fresh suit was filed by Mr. Mahatane on behalf of the applicant on 14th E December, 1983, a day following the withdrawal of the application for leave to appeal. The plaint was signed by the applicant. The fresh suit was in respect of the same suit premises, and referred to the respondent as having been declared a tenant in R.M. Civil case No, 78 of 1982, and seeking the F respondent's eviction, on the ground among others that he had sublet without permission. 

The inference, to my mind, was that the appeal was being deliberately abandoned and fresh action was being taken to evict the respondent. Mr. Lakha stated that this fresh suit R.M. Civil Case No. G 217 of 1983, was dismissed for want of prosecution on 14th September, 1984. The letter of 2nd July, 1984, written by Mr. Mahatane referred only to R.M. Civil Case No, 217 of 1983, and nothing in it concerned the application for leave to appeal. In the circumstances I do not believe that Mr. Mahatane had withdrawn the application for leave to appeal without the authority or knowledge of H the applicant, bearing in mind that the application to the High Court for leave to appeal dated 7th March, 1983, was filed by the applicant himself before Mr Mahatane was engaged as counsel. If Mr. Mahatane had acted as alleged, then this conduct would have been improper, not negligent, and I that would be a matter between the applicant and Mr. Mahatane. It would seem to me that the notice 1984 TLR p79 A of motion filed on 10th October, 1984, after the dismissal of the fresh suit R.M. Civil Case No, 217 of 1983 on 14th September, 1984 could have been an attempt to revive an appeal which had become moribund. B As to illness, Professor Fimbo referred to a report dated 29th August, 1984, written by a Dr. Wilson of London concerning the applicant. That letter states inter alia "this gentleman on his visit to England from Tanzania while he was here visiting his daughter..." It would seem that while on such a visit the applicant consulted Dr. Wilson and other doctors in London. 

Admittedly, the applicant had suffered injuries and illness, but he was about 18 months out of time, he was capable of going on a visit to his daughter in England, and the illnesses occurred from June 1984 onward. I do not think that he was effectively prevented by illness from filing his appeal for a period of 11/2 D years. I would not have found that the applicant had advanced sufficient reason to extend the time in terms of Rule 8 of the Court of Appeal Rules.

I dismiss the application with costs.

E Application dismissed.

1984 TLR p79

F