Philemon Mang'ehe T/A Bukene Traders vs Gesso Herbon Bajuta (Civil Application No. 32 of 2013) [2014] TZCA 2350 (2 July 2014)

IN THE COURT OF APPEAL OF TANZANIA ATARUSHA CIVIL APPLICATION NO. 32 OF 2013 PHILEMON MANG'EHE t/a BUKENE TRADERS ...... APPLICANT VERSUS GESSO HERBON BAJUTA ...................................... RESPONDENT (Application from the judgment and decree of the 13 th June & 3 rd July, 2014 MANDIA. J.A.: High Court of Tanzania at Arusha) (Shayo, J.) Dated 10 th day of lune, 2011 In Civil Application No. 149 of 2013 RULING On 31 st October, 2013 the applicant lodged Notice of Motion in which he prayed for extension of time within which to file a Notice of Appeal in respect of Civil Case No. 8 of 2006 determined in the High Court of Tanzania, Arusha Registry on 10/6/2011. The background to this application as shown in the applicant's affidavit which accompanied the Notice of Motion shows that on 10/6/2011 the High Court of Tanzania, Arusha Registry, rendered judgment in Civil Case No. 8 of 2006 which the applicant, who was the plaintiff, lost. Three 1

days later on 13/6/2011 the applicant lodged a Notice of Appeal against \ ., the decision of the High Court. On 17/5/2012 this Court struck out the appellant's appeal for being incompetent because it was accompanied by a defective decree. Thereafter the applicant on 28/6/2012, lodged in the High Court Civil Application No. 55 of 2012 in which he sought extension of time to file a Notice of Appeal. The application could not proceed to hearing because on 14/8/2013 the applicant withdrew it. In between the filing of Civil Application No. 53 of 2012 and its withdrawal the High Court had ordered the applicant to amend a defective counter affidavit lodged. The applicant apparently did not effect the amendment but instead filed Misc. Civil Review No. 2 of 2013 in which he sought review of the High Court order to amend the counter -affidavit. After this merry-go-round the appellant went to the High Court and filed Civil Application No. 149 of 2013 in which he prayed for extension of time to file a notice of appeal in Civil Case No. 8 of 2006. The High Court dismissed the application on 18/10/2013. On 31 st October, 2013 the applicant lodged in this Court the present application in which he is seeking extension of time to lodge a notice of appeal in respect of Civil Case No. 8 of 2006. 2

..., When the application was called· on for hearing the applicant " , appeared in person to argued his application, while the respondent was represented by Mr. Elvaison Maro learned advocate. Mr. Maro had filed a notice of preliminary objection on a point of law that the application is misconceived and does not lie. Arguing the preliminary objection, Mr. Elvaison Maro put forth the argument that the powers to extend time to give a notice of intention to appeal are provided for in section 11(1) of the Appellate Jurisdiction Act, Chapter 141 R.E. 2002 of the laws, and that these powers are exclusive to the High Court or a subordinate Court exercising extended powers, and that the Court of Appeal has not been given these powers. He further argues that the order refusing the applicant extension of time to file the notice of intention to appeal is an appealable order under section 5(1) (c) of the Appellate Jurisdiction Act, and the appellant could have appealed against the order of refusal upon securing leave of the High Court. Mr. Maro further argues that it is only in an application for leave that the High Court shares powers with the Court of Appeal as provided for in section 5(1) (c) of the Appellate Jurisdiction Act and Rules 45(b), 47, 48 and 49 of the Court of Appeal Rules, 2009. The fact that the Rules does not make reference to a notice of Appeal means an application involving a notice is 3

excluded from the ambit of the Rules - expressio unus est expressio ~ · alterris. Mr. Maro therefore prayed that the application be dismissed with costs. On his part, the applicant had nothing useful to add to this argument on the law, which is not surprising because he is a layman. Section 11 (1) of the Appellate jurisdiction Act provides:- "11----(1) subject to subsection (2), the High Court or, where an appeal lies from a subordinate court exercising extended powers, the subordinate court concerned, may extend the time for giving notice of intention to appeal from a judgment of the High Court or of the subordinate court concerned, for making an application for leave to appeal or for a certificate that the case is a fit case for appeal notwithstanding that the time for giving the notice or making the application has already expired. (2)..... ......................................................................... What the above quoted section means is that there are three instances where the High Court or a subordinate court exercising extended powers can exercise the powers granted by the section. These powers are:- (a) Extending the time for giving notice of intention to appeal. 4 n

(b) Extend time for making an application for leave to appeal, and ' (c) Extending time for lodging an application for a certificate on point of law. Section 11(1) of the Appellate Jurisdiction Act does not apply to proceedings conducted in the Court of Appeal. Comparable provisions in the Court of Appeal Rules, 2009, are Rule 45 and Rule 47 of the Court of Appeal Rules. The substantive rule is Rule 45 which provides for an application for leave only, and provides for a second bite within fourteen days in the case of refusal for leave to appeal where an application has first been made to the High Court. Instructively Rule 45 did not include powers to extend time for giving notice of appeal and powers for extending time when applying for a certificate on point of law. Since what is shared in common between the Court of Appeal and the High Court or a subordinate court exercising extended powers is the power to extend time in an application for leave only, the second bite rule under Rule 45 (b), 47 and 48 should appropriately be restricted to applications for leave only. Applications for extension of time to file a notice of appeal and application to extend time to apply for a certificate on point law are the exclusive domain of the High Court. The only avenue 5

open to a party whose application for extension of time to file a notice of .. \ appeal is refused by the High Court is to appeal against such refusal under Rule 5 (1) (c) after obtaining the necessary leave. The powers on notice of appeal and certificate on point of law granted under section 11 (1) of The Appellate Jurisdiction Act, Chapter 141 of the Laws, have been specifically excluded in Rule 45 (b) of the Court of Appeal Rules, 2009, and they cannot be "read into"the rules. I therefore allow the preliminary objection and find the application for extension of time to file a notice of appeal filed in this court incompetent and I hereby strike it out. In the particular circumstances of this case I will not make an order as to costs. DATED at ARUSHA this 2 nd day of July, 2014. W.S. MANDIA . JUSTICE OF APPEAL ·s a true copy of th \ IlJ r,' l.A. MAL D PUTY REGIST~y, C URT OF APPEAL I 6