Elly Peter Sanya vs Ester Nelson (Civil Appeal 151 of 2018) [2020] TZCA 157 (27 March 2020)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: LILA, J.A.. MKUYE. J.A.. And KOROSSO. J.A.^ CIVIL APPEAL NO. 151 OF 2018 ELLY PETER SANYA ........................................................................ APPELLANT VERSUS ESTER NELSON............................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Levira, J.^ Dated the 15th day of June, 2017 in Misc. Civil Application No. 12 of 2016 JUDGMENT OF THE COURT 20th & 27th March, 2020 LILA. J.A.: The dispute between the parties to this appeal, Elly Peter Sanya and Ester Nelson, (henceforth the appellant and respondent, respectively), which culminated in the institution of this appeal has a chequered history. For a better understanding of the background of this appeal we are compelled to recapitulate its background with sufficient details. The parties were husband and wife and, during the subsistence of their marriage, they were blessed with two issues namely Felix Elly and

Innocent Elly, who were born on 28/8/2006 and 28/2/2011, respectively. Their marriage life became sour sometime in the year 2012 when the respondent petitioned for divorce before Uyole Primary Court in Mbeya District. The grounds for the petition were that the appellant stabbed her with a knife, threatened her that death will be her divorce and locked her outside their matrimonial house. The trial court was satisfied that the marriage had irreparably broken down and proceeded to grant divorce. It was also ordered that the issues of the marriage should be in the respondent's custody and the appellant should provide them with maintenance costs. As for the plot and a house, it was found that they formed part of the matrimonial properties and it was ordered that their value be shared by the parties at the ratio of 2/3 to the appellant and 1/3 to the respondent. The division of home utensils was left undisturbed on the ground that they had already been divided to the parties. The appellant was aggrieved by the decision of the Primary Court. His appeal to the District Court in Matrimonial Civil Appeal No. 22 of 2012 was unsuccessful. Still aggrieved, he appealed to the High Court at Mbeya in PC. Matrimonial Civil Appeal No. 2 of 2013. The High Court (Ngwala, J.), again, dismissed the appellant's appeal.

Undaunted, the appellant wished to appeal to the Court but was late. Alive of the law [section 5(2) (c) of the Appellate Jurisdiction Act, Cap. 141 R. E. 2002 (the AJA)] that the matter originated from the Primary Court hence a certificate on points of law is a prerequisite requirement before lodging an appeal to the Court, he lodged in the High Court at Mbeya an application for extension of time within which to lodge an application for certification of points of law. Due to its significance in the determination of this appeal, we take pain to reproduce the appellant's prayers in that application as they were reflected in the chamber summons as hereunder:- (a) This Honourable Court may be pleased to grant an extension o f time within which to lodge an application for a certificate on a point o f law as a fit case to appeal to the Court o f Appeal o f Tanzania out o f time. (b) Costs be in the course. (c) Any other relief(s) this Honourable Court may deem fit to grant. The purpose of the application and reason for the delay were averred by the appellant in paragraphs 4, 5 and 6 of the appellant's 3

affidavit in support of the application. We, again, find it apposite to reproduce them. They stated:- "4. That, am applying to file application for a certificate that a case is the fit case to the Court o f Appeal o f Tanzania out o f time because I have been given a copy o f judgm ent late on 22/10/2014 and hence the delay to file an application for a certificate to appeal to the Court o f Appeal o f Tanzania. 5. That the delay o f been given a copy o f Judgment caused the delay to file an application for a certificate that a case is the fit case in time (sic). 6. That the delay to lodge an application for a certificate was not deliberate but due to the reasons stated above in paragraphs 4 and 5 ." The High Court (Chocha, J. as he then was) (Henceforth Chocha, J.), on 28/4/2015, declined to grant the application and dismissed the application for being misconceived. For ease of reference in the course of this judgment, we, again, find it compelling to reproduce that ruling as hereunder:-

"In th is a p p lica tio n E iiy P e te r Sanya is se ekin g exten sion o f tim e w ith in w hich to lodge an a p p lica tio n fo r ce rtifica te on a p o in t o f la w to the C o u rt o f A ppeal. As usual, the application is supported by an affidavit and is brought under section 11 (1) o f the Appellate Jurisdiction A ct Cap. 141 Revised Edition 2002. The respondent is Esther Nelson. The applicant contended which was a repetition o f the contents o f the affidavit\ that he was im paired from lodging an application in time as he had not acquired the copy o f the impugned judgment. He subm itted that the judgm ent which he desires to challenge was passed on the 9/September/2014. On the 11/9/2014 he lodged a notice o f intention. He however failed to lodge an application for leave within the prescribed time because he had not obtained the copy o f judgm ent which was served to him on the 22/10/2014, after the expiry o f 45 days.

The respondent resisted the application. She had two reasons. One that the m atter was unnecessarily taking too long. Two that the applicant had not supported the claim that he had been chasing for a copy. The applicant did not te ll the court why he thinks he is late. Truly, by operation o f R .4 5 fa ) o f th e C o u rt o f A p p eal o f Tanzania R u les 2009, no a p p lica tio n fo r leave w ould be file d an d en te rtain e d a fte r fourteen days h ad la p se d from the date o f the d e liv e ry o f th e im pugned ju d g m en t o r o rd er . The rule is le t to speak:- "In C ivil m atter:- Where an appeal lies with the leave o f the High Court, the application for leave may be made inform ally , when the decision against which it is desired to appeal is given or by chamber

summons according to the practice o f the High Court ' within fourteen days o f the decisions." The applicant's application is misconceived. A t this stage the applicant did not necessarily require a copy o f either the judgm ent or order which he desires to challenge. An application would be in place without which, which is why it is allowed to lodge the same inform ally. The necessary requirement in this application is to observe time frame, n a m e ly it should be within fourteen days. H aving o b tain ed leave however; it is very difficult for an applicant to figure out the points o f law he desires to chase unless he is armed with the copy o f the impugned judgm ent or order. So, u n like under a situ a tio n w here leave has been granted a lre a d y it is n o t n ecessary fo r the a p p lica n t to a w a it the co p ies o f the im pugned o rd ers fo r him to

p ro ce ss an a p p lica tio n fo r leave . Therefore th e d e la y in su p p ly o f the im pugned co p ies can n o t be a good an d su ffic ie n t g rou nd fo r th e d e la y o f the procession o f the ap p lica tio n . The application was therefore misconceived. It is dism issed with costs." (Emphasis added) Aggrieved by the dismissal of the application, the appellant lodged a similar application before the Court by way of a notice of motion for extension of time famously known as "second bite". That was Civil Application No.3 of 2015. Unluckily, that application was struck out (Mugasha, JA) on 15/4/2016 for two main reasons, one; the appellant cited wrong provisions of the Tanzania Court of Appeal Rules, 2009 (the Rules) in moving it to extend time on second bite and, two; the application was untenable by the Court because certification of points of law for consideration by the Court is the exclusive domain of the High Court. Tireless to fulfil his quest to appeal to the Court, the appellant, again, went to the High Court before which he lodged another

application for extension of time. That was Misc. Civil Application No. 12 of 2016 in which the appellant's prayers were:- "That this Honourable Court may be pleased to g ra n t exten sion o f tim e to the a p p lica n t w ith in w hich:- (i) To lod ge a n o tice o f ap p eal and to se rve it o u t o f tim e to the respond ent a g a in st the ru lin g o f Hon. Chochaf Judge dated 28 /04 /20 15 . ( ii) To lod g e an a p p lica tio n fo r le a ve to c e rtify th a t there is a p o in t o f la w to ap p e a l to the C ourt o f A p p e a l o u t o f tim e. (b) Costs and incidentals thereto be in the main appeal. (c) Any other relief(s) this Honourable Court may deem fit to grant (Emphasis added)

That application was turned down (Levira, J. as she then was) (henceforth Levira, J.). In her ruling, which is the subject of this appeal, the learned Judge stated:- "This application is brought under Section 11(1) o f the Appellate Jurisdiction Act, Cap 141 Revised Edition 2002. The applicant is praying among other things for extension o f time within which: i. To lodge a n o tice o f ap p eal and to se rve it o u t o f tim e to respondent a g a in st the ru lin g o f Hon. Chocha, Judge d a te d 2 8 /4 /2 0 1 5 . ii. To lodge an a p p lica tio n fo r leave to c e rtify th a t th ere is a p o in t o f la w to a p p eal to the C o u rt o f A p p e a l o u t o f tim e. The application is supported by applicant's affidavit. This application was entertained exparte

because the respondent did not appear on the hearing date despite being served with summons on 2 J d January, 2017. During hearing o f this application the applicant was not represented by an advocate, he appeared in person. The applicant had nothing useful to submit. He stated that the reasons for his application are stated in his affidavit Grounds to support this application are stated in the affidavit. In paragraph two o f the affidavit, the applicant states that he was dissatisfied by the decisions o f Hon. Ngwaia, Judge in PC. Matrim onial C ivil Appeal No. 2 o f 2013 and that o f Hon. Chocha, Judge Misc. C ivil Application N0.27 o f 2014 which dism issed that application on 28/04/2015. In paragraph three o f the affidavit the applicant states that he was dissatisfied by the decision o f Hon. Chocha, Judge and therefore he decided to file a notice o f motion to the Court o f Appeal

seeking for a certificate on a point o f law. The said application was dism issed on 15/04/2016 by the Court o f Appeal that it had no powers to grant certificate on point o f law involved. The applicant stated in paragraph six that delay to file this application was not deliberate but due to time spend in the Court o f Appeal on a notice o f motion. I had time to go through the decisions o f this court mentioned above, the decision o f the Court o f Appeal and the court records generally. The observation o f this court is that the application before the Court o f Appeal was not granted because it was incompetent and untenable. However, the application before Hon. Chocha, Judge was dism issed because the applicant was seeking for extension o f time but he did not supply sufficient ground for the delay to process the application for certificate on point o f law to the Court o f Appeal. 12

In the current application the applicant is seeking for extension o f time to lodge a notice o f appeal out o f time against the decision o f Hon. Chocha, Judge and to lodge an application for leave to certify time. The only reason advanced reasons is that he was delayed by the application which was pending in the Court o f Appeal. I think it is im portant to state at this point that, although the applicant is claim ing that he was delayed by the application he filed to the Court o f Appeal, he has not been able to ju stify why the sought orders should be granted. I am saying so because the applicant in the first application in this court made sim ilar application before Hon. Chocha, Judge seeking for extension o f time within which to lodge an application for certificate on point o f law to the Court o f Appeal, Misc. C ivil Application No.27 o f 2014; this application was dism issed as the applicant failed to supply sufficient reasons. Then the applicant decided to 13

go to the Court o f Appeal seeking for certificate on point o f law. The said application was incompetent and untenable, hence was struck out. It has to be understood that, for the court to grant extension o f time there must be sufficient grounds advanced by the applicant. This principle is stated in a number o f decided cases from this court and the Court o f Appeal; some o f these cases are such that; Yusufu Sam e an d H aw a D ada Vs. H ad ija Yusufu, C iv il A p p e a l No. 1 o f 2002; B e n e d ict M um elo Vs. B ank o f Tanzania, C iv il A p p eal No. 12 o f 2002, Court o f Appeal o f Tanzania a t Dar es salaam (Unreported), A le xa n d e r Chula Vs. U ongozi wa W afu gaji M w aie, M isc. Land A p p lica tio n No. 81 o f 2015, High Court Mbeya (Unreported), and many others. In my considered opinion I do not see that the applicant has been able to furnish sufficient

ground for this court o f grant the application. The reason th a t he decided to lod ge an a p p lica tio n to the C o u rt o f A p p eal is and can n o t sta n d a s su ffic ie n t grou nd fo r th is co u rt to exten d tim e a s it w as h is choice. I f th e a p p lica n t w as ag g rieved b y th a t d e cisio n he ought to have appealed a g a in st th e sam e and n o t to m ake an a p p lica tio n in th e C o u rt o f Appeal. H ow ever, I do n o t a lso th in k th a t it w ill be p ro p e r fo r th is co u rt to g ra n t the o rd e r w hich h ad a lre a d y been re fu se d b y th is court. Consequently, the application is dismissed. I make no orders as to costs." (Emphasis added). The above decision forms the crux of the present appeal before us and the appellant is faulting it on a sole ground:- "1. That the learned Honourable High Court Judge erred both in points o f law when she ruled out that time spent in prosecuting an appeal in

the Court o f Appeal was not good reasons to grant leave to lodge a notice o f appeal and serve the same out o f time and to lodge an application for extension o f time leaved to obtain a certificate to appeal to the Court o f Appeal o f Tanzania " It is worth noting that the record bears out that the appellant sought and was granted a certificate on points of law by the High Court (Ngwala, J.) on 05/4/2018 before he accessed the Court to lodge the present appeal. The above ground of appeal precisely reflects the point of law that was certified by the High Court. Both parties to this appeal appeared in person and were unrepresented. It is noteworthy that the appellant filed written submissions in support of the appeal which he adopted as being sufficient submission in support of his appeal but reserved his right to re join after the respondent had replied to the submissions. On the rival side, the respondent resisted the appeal orally before us. In his written submission, the appellant is substantially faulting the learned Judge for not appreciating that the time he spent in prosecuting what he termed as "his case" before this Court constituted good cause 16

for delay to lodge and serve the notice of appeal to the respondent as well as apply for a certificate on points of law for consideration by the Court. For certainty and clarity, we propose to quote the relevant part of the written submission as under:- was dissatisfied with the decision o f Hon. Madam Justice Ngwaia who dism issed my appeal. After that I lodged a notice o f appeal and then obtained a certificate to lodge an appeal to the Court o f Appeal. But when I went to the Court o f Appeal my case was struck out It is then when I went back before Hon. Madam Dr. Levira and made an application which was dism issed and which is the subject m atter o f this appeal. Your Lordships, the issue for determination before you is ” w hether tim e sp e n t to p rosecu te an ap p eal before th is H onourable (s ic ) w as n o t good reason to Hon. M adam Ju stice D r. Le vira to g ra n t exten sion o f tim e to th e a p p lica tio n for leave to lodge application for extension o f time to lodge and serve a notice

o f appeal out o f time to lodge an application for extension o f time to apply for a certificate to certify a point o f law. It is my humble submission that, the Honourable judge made a great error in dism issing my application because there was no dispute that, the delay to file an application which was before her was caused by time spent to prosecute case before the appellate court. The Honourable court ought to have granted the leave sought and not to dism iss it because the dism issal order denied me an access to come to this Honourable Court to pursue an appeal against PC Matrim onial C ivil Appeal no. 2 o f 2014." In our prompting on what kind of the case was before the Court which was struck out, the appellant pleaded ignorance of what was before the Court and threw blame to the lawyer who assisted him in drafting the documents for not letting him know. Such was also his response when we engaged him on why he did not rectify the anomaly in his application before the Court and lodge it again (second bite) and 18

instead, he turned against the ruling by Hon. Chocha J. who denied him extension of time within which to lodge an application for a certificate on points of law worth being considered by the Court against the decision by Ngwala, J. In her brief response to the appellant's submissions, the respondent contended that the appeal has no merit and is intended to cause unrest to her. She fully supported the learned Judge's decision which is being faulted and urged the Court to examine the record and determine the appeal basing on the evidence on record. She pressed for costs claiming that the appellant's endless litigations have caused her to incur a lot of expenses. In rejoinder, the appellant, apart from pleading to the Court to consider his ground of appeal, showed no interest to be paid costs of the case even if his appeal succeeds. We, in the first place, wish to make a serious note on the way the record of appeal was prepared. The documents in the record of appeal were haphazardly arranged such that the above background of the case could be tracked with great difficulty. Much as we appreciate that some of the litigants, the appellant inclusive, may not be aware of the 19

requirements of the Rules on how documents on which the appeal is founded should be arranged, we think the Registrar should adopt the practice of perusing and examining the records presented for filing before they are registered. And, in the event there are apparent deficiencies, parties should be asked to rectify or amend them before the cases are scheduled for hearing. To this, Rule 96(4) of the Rules, is clear on how documents should be arranged and it should be observed in the preparation of a record of appeal. Secondly, we think we should seize this opportunity to unveil some facts as are revealed by the record of appeal that are inconsistent with the appellant's submission in support of the appeal. One; there was no appeal lodged by the appellant before the Court that was dismissed. Instead, after his application for extension of time to apply for certification of points worth being considered by the Court was dismissed by the High Court (Chocha, J.), the appellant lodged a similar application before the Court on a second bite. That application was dismissed by the Court (Mugasha, JA.) for reasons already stated above. Two, the appellant seems to have changed course in that while he was formerly pursuing the process of appeal against the decision of the High Court (Ngwala, J.) in PC Matrimonial Civil Appeal No. 2 of 2013, now he is 20

pursuing a process of appealing against the High Court decision (Levira, J.) in Misc. Civil Application No. 12 of 2016 which denied him extension of time within which to appeal against the decision of the High Court (Chocha, J.) in which he was denied extension of time to apply for certificate on points of law so as to appeal against the decision of the High Court (Ngwala, J.) in PC Matrimonial Civil Appeal No. 2 of 2013. All the same, before us, the appellant is appealing against the decision of the High Court (Levira, J.) in Misc. Civil Application No. 12 of 2016 in which he was denied extension of time within which to lodge a notice of appeal against the ruling of Hon. Chocha, J. dated 28/04/2015 and to serve it out of time to the respondent and also to lodge an application for leave to certify that there is a point of law to appeal to the Court of Appeal out of time, whatever that meant. The pain we have undertaken to reproduce the High Court (Levira, J.) ruling is not without a purpose. Our serious examination of the record and as we have endeavoured to show above, has revealed that the appellant's applications before Chocha, J. and that which was before Levira, J. were not the same. They were quite distinct applications. While the application before Chocha ,J. was for extension of time within which to apply for certification of points of law so as to appeal to the Court 21

against the decision of Ngwala, J. in PC. Matrimonial Civil Appeal No. 2 of 2013, the application before Levira, J. was for extension of time to lodge a notice of appeal and serve it to the respondent and also to lodge an application for certification of points of law for consideration by the Court against the decision of Chocha, J. It is our firm view, therefore, that the learned Levira, J. was wrong when, in her ruling, she held that:- "/ think it is im portant to state at this point that, although the applicant is claim ing that he was delayed by the application he filed to the Court o f Appeal, he has not been able to ju stify why the sought orders should be granted. I am sa yin g so because the a p p lica n t in the fir s t a p p lica tio n in th is co u rt m ade s im ila r a p p lica tio n before Hon. Chocha, Ju dge se e kin g fo r exten sion o f tim e w ith in w hich to lod g e an a p p lica tio n fo r c e rtifica te on p o in t o f la w to the C ourt o f A ppeal, M isc. C iv il A p p lica tio n N o.27 o f 2014; th is a p p lica tio n w as d ism issed a s the a p p lica n t fa ile d to su p p ly s u ffic ie n t reasons. Then the

applicant decided to go to the Court o f Appeal seeking for certificate on point o f law. The said application was incompetent and untenable, hence was struck o u t.... In my considered opinion I do not see that the applicant has been able to furnish sufficient ground for this court o f grant the application. The reason that he decided to lodge an application to the Court o f Appeal is and cannot stand as sufficient ground for this court to extend time as it was his choice. I f the a p p lica n t w as ag g rieved b y th a t d ecision he o u g h t to have appealed a g a in st the sam e and n o t to m ake an a p p lica tio n in the C ou rt o f A ppeal. H ow ever, I do n o t a lso th in k th a t it w ill be p ro p e r fo r th is co u rt to g ra n t th e o rd e r w hich h ad a lre a d y been re fu se d b y th is court. Consequently, the application is dism issed." (Emphasis added)

The foregoing excerpt from the learned Judge's ruling, in a few words, suggests that she refrained from granting the application on the ground that the High Court was functus officio in the sense that a similar application was heard and finally determined by the same court. Just as a reminder, this Court had an occasion to expound the legal position as to when a court is said to be functus officio in the case of John Mgaya and Four Others vs Edmundi Mjengwa and Six Others, Criminal Appeal No. 8 (A) of 1997 (unreported). In that case the Court quoted with approval the principle laid down by the Court of Appeal for Eastern Africa in KAMUNDI V R (1973) EA 540. The Court of Appeal for Eastern Africa, stated "A further question arises, when does a m agistrate's court become functus officio and we agree with the reasoning in the Manchester City Recorder case that this case only be when the court disposes o f a case by a verdict o f not guilty or by passing sentence o r m aking som e ord ers fin a lly d isp o sin g o f the ca se " (emphasis added). In the instant case, it is plain that the order of the High Court (Chocha, J.) dated 28/04/2015 in Misc Civil Application No. 27 of 2014 24

dismissing the appellant's application did not dispose of an application similar to the one that was before Levira, J. that is, Misc. Civil application No. 12 of 2016. As demonstrated above, the two applications were substantially different. That order by Chocha, J. did not, therefore, render the High Court functus officio. We now revert to consider whether the reason for the delay advanced by the appellant constituted good reason for the grant of the application. The reason for the delay advanced by the appellant in Misc. Civil Application No. 12 of 2016 that was before Levira, J. and which was put under her consideration was that the delay was not deliberate but due to time spent in the Court of Appeal on a notice of motion. Needless to mention, the application under reference was Civil Application No.3 of 2015 which was struck out by the Court (Mugasha, JA) on 15/4/2016. In dismissing the application the learned Levira, J. stated that:- 7/7 my considered opinion I do not see that the applicant has been able to furnish sufficient ground for this court o f grant the application. The reason that he decided to lodge an application to 25

the Court o f Appeal is and cannot stand as sufficient ground for this court to extend time as it was his choice. I f the applicant was aggrieved by that decision he ought to have appealed against the same and not to make an application in the Court o f Appeal." It is now settled principle that the delay in taking action within the time specified by law caused by time spent in prosecuting a matter in court constitutes good cause of delay. This is what is now known in legal arena as technical delay. Its history can be traced as back as in the decision of a single Justice in the case of Furtanatus Masha vs. W illiam Shija and Another [1997] TLR 154, faced with anidentical scenario, in allowing an extension time, a single Justice of the Court observed that:- "... A d istin ctio n sh o u ld be m ade betw een cases in v o lv in g re a l o r a ctu a l d elays an d those lik e th e p re se n t on w hich o n ly in vo lve w hat can be ca lle d te ch n ica l d elays in the sense that the original appeal was lodged in time but the present situation arose only because the original appeal for one reason or another has been found to be 26

incompetent and a fresh appeal has to be instituted. In the circumstances, the negligence if any really refers to the filing o f an incompetent appeal not the delay in filing it. The filin g o f an incom petent ap p eal h avin g been d u ly p e n a lize d b y strik in g it out, the sam e cannot be used y e t again to determ ine the tim eousness o f ap p lyin g fo r filin g the fre sh appeal. In fact in the present case, the applicant acted immediately after the pronouncement o f the ruling o f this Court striking out the first appeal." [Emphasis supplied] The above proposition was approved by the full Court in Salvand K. A. Rwegasira v. China Henan International Group Co. Ltd., Civil Reference No. 18 of 2006 wherein we observed that:- "> 4 distinction had to be drawn between cases involving real or actual delays and those such as the present one which clearly only involved technical delays in the sense that the original appeal was lodged in time but had been found to be incompetent for one or another reason and a fresh appeal had to be instituted. In the present case the applicant had acted imm ediately after the pronouncement o f the 27

ruling o f the Court striking out the first appeal. In these circumstances an extension o f time ought to be granted." Having rightly directed herself on the principle governing grant of extension of time that there must be sufficient grounds advanced by the applicant and also having cited various Court's decisions to that effect such as Yusufu Same and Hawa Dada Vs. Hadija Yusufu, Civil Appeal No. 1 o f 2002 and Benedict Mumelo Vs. Bank of Tanzania, Civil Appeal No. 12 of 2002 (both unreported), it appears that it escaped the mind of the learned Judge that a delay that occurs when one is diligently prosecuting a matter in court constituted a technical delay which amounts to good and sufficient reason to grant extension of time. In the case at hand, it is apparent that the appellant was late to lodge a notice of appeal against the decision of Chocha, J. and serve the same to the respondent because he was prosecuting his application before the Court. Fortunately, the learned judge appreciated that fact but dismissed that application for the reason that lodging of another application in the Court instead of appealing was a matter of his own choice. With respect, that observation was unwarranted as the appellant 28

advanced a reason which is within the precincts of the reasons warranting grant of extension of time. For reasons we have amply demonstrated, we find merit in the appellant's appeal. The refusal by the High Court (Levira, J.) to extend time was improper. The appellant's application deserved to be granted. Ordinarily, we would have ended up here and granted extension of time to the appellant to lodge a notice of appeal against the decision of Chocha, J. and serve the same to the respondent. But, for a reason soon following, we refrain from doing so. In the due course of perusing the record of appeal, we noted another anomaly which, for the interest of justice, calls for our intervention. That is, the learned Judge who presided over Misc Civil Application No. 27 of 2014 (Chocha, J.) strayed into error when he treated that application as concerning leave to appeal to the court. That shortfall is apparent in the learned judge's ruling quoted above. Unfortunately, when we engaged the parties, they had nothing material to assist the Court. Indeed, while the chamber summons was expressly clear, and as was rightly observed by Levira, J. in her ruling, that the application before the High Court (Chocha, J.) was for extension of time 29

within which to apply for certification of points of law for consideration by the Court, in his ruling the learned Judge dwelt much on discussing about leave to appeal. Had he minded that the application before him was predicated under section 11 of the Appellate Jurisdiction Act, Cap. 141 of the Revised Edition, 2002 (the ADA), and was an application for extension of time within which to lodge an application for a certificate on a point of law he would have not spent time in discussing the issue of leave and the import of Rule 45 (a) of the Rules which was not before him and ultimately declare that the application was a misconceived one. In the end, it cannot safely be said that he properly directed himself to the application for extension of time that was before him and determined it. For the foregoing reason, we are inclined to invoke our powers of revision under section 4(2) of the ADA to quash the proceedings and ruling of the High Court (Chocha, J.) in Misc Civil Application No. 27 of 2014 and hereby set aside the order dismissing that application. Consequently, the matter reverts to the position that existed before that application (Misc. Civil Application No. 27 of 2014) was heard. We accordingly direct that the High Court record be remitted back for it to hear and determine that application. 30

In the circumstances of this case that the parties were spouses and some of the anomalies having been contributed by the High Court, we find it prudent that we order, as we hereby do, that each party shall bear its own costs. DATED at MBEYA this 27th day of March, 2020. S. A. LILA JUSTICE OF APPEAL R. K. MKUYE JUSTICE OF APPEAL W. B. KOROSSO JUSTICE OF APPEAL The Judgment delivered this 27th day of March, 2020 in the presence of appellant and respondent in person is hereby certified as a true copy of the original. \ 31