James Peter Ndaki vs Nyamalwa Wangaluke (Civil Application No.541/08 of 2020) [2023] TZCA 17542 (25 August 2023)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: WAMABLI, 3.A., MWANDAMBO, 3.A. And MAIGE. 3J U CIVIL APPLICATION NO. 541/08 OF 2020 JAMES PETRO NDAKI................................................................... APPLICANT VERSUS NYAMALWA WANGALUKE ....................................................... RESPONDENT (Application for leave to appeal against the ruling of the High Court of Tanzania at Mwanza) (Ismail, J.) Dated the 21st day of April, 2020 in Probate Appeal No. 9 of 2019 RULING OF THE COURT 24th & 25thAugust, 2023 MAIGE J.A.: The applicant herein having been aggrieved by the decision of the District Court of Nyamagana in Miscellaneous Civil Application No. 17 of 2019, appealed to the High Court of Tanzania at Mwanza vide Probate Appeal No. 9 of 2019. On 21st day of April 2020, Ismail, J. dismissed the appeal for being time barred. Once again aggrieved, the applicant timely lodged a notice of appeal and an application at the High Court for leave to appeal to the Court. On 14th September, 2020, the High Court dismissed the application for want of merit and henceforth the instant application which was lodged on 13th October, 2020 under rules 45 (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules), section 5 (2) (c) of the Appellate Jurisdiction Act, Cap 141 and section 47(2) of the Land Disputes Courts Act, Cap. 241. On the date when the matter came for hearing, the applicant appeared in person without representation whereas Mr. Frank Obeid, learned advocate, appeared for the respondent. Before the hearing could commence, Mr. Obeid, with the permission of the Court, raised a point of law to the effect that the application was out of time. He submitted that as the ruling of the High Court refusing leave was delivered on 14th September, 2020 and the instant application filed on 13th October, 2020, it was apparently time barred. He prayed, therefore, that the application be struck out with costs. The respondent while conceding that the application was filed out of time, he urged the Court to exercise its indulgence and entertain the application despite being time barred. We have heard the parties' rival submissions and, with respects, we agree with Mr. Obeid that, under the express provision of rule 45(b) of the Rules, the time limit for an application for leave to appeal to the Court as a second bite, is 14 days from the date of refusal. We understand, however, that under the same provision, the Registrar has power, upon being requested by the applicant, to exclude by way of a certificate, the period spent by the applicant while awaiting to be availed with a copy of the decision of the High Court refusing leave to appeal. In this case, it is manifestly apparent that, while the refusal by the High Court was on 14th September, 2020, the application was filed on 13th October, 2020. It was, therefore, out of time for more than 13 days. The applicant has not produced any certificate of exclusion of the Registrar or any Court order extending time within which to institute the application. Yet, the applicant is arguing us to entertain the application. It is unfortunate, however, that the law of limitation knows no sympathy or equity. Indeed, the settled position of the law is that a proceeding preferred out of time is a nullity. We thus sustain the point of objection raised by the respondent. In the circumstances, this application cannot stand and it is hereby struck out. Considering the nature of the application, we find that it is in the interest of justice not to grant costs to the respondent. DATED at MWANZA this 24th day of August, 2023. F. L. K. WAMBALI JUSTICE OF APPEAL L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL The Ruling delivered this 25th day of August, 2023 in the presence of the applicant in person unrepresented and Mr. Frank Obeid, learned Advocate for the respondent, is hereby certified as a true copy of the original 4