Ludger Bernard Nyoni vs National Housing Corporation (Civil Reference No. 4 of 2012) [2014] TZCA 2274 (18 February 2014)

0 IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL REFERENCE NO. 4 OF 2012 (CORAM: MBAROUK, J.A., MASSATI, J.A., And KALJAGE, J.A.) Lii DG ER BE RNARD N'Y'ONI ....................................APPLICANT VERSUS NATIONAL HOUSING CORPORATION ................ RESPONDENT (Reference from the decision of the single Judge of the Court of Appeal of Tanzania at Dar es Salaam) (Kimaro, J.A.) dated the 3"' day May, of 2012 In Civil Application No. 75 of 2011 RULING OF THE COURT 14 & 261h February, 2014 MBAROUK,J.A.: This reference was filed by the applicant who was aggrieved by the decision of the single judge of this Court (Kimaro, J.AI) who dismissed the application for extension of time in Civil Application No. 75 of 2011. Briefly stated, the background of the matter is as follows, the respondent sued the applicant for the recovery of rental arrears in a summary suit in Civil Case No. 258 of 2000 before the 1

Resident Magistrate Court at Kisutu,. Dar es Salaam. On 28/2/2001 the RM's Court Kisutu entered judgment for the respondent/plaintiff as prayed because the applicant/defendant did not apply for leave to defend the suit. No application to set aside the judgment was made by the applicant, instead he filed an appeal to the High Court (Mihayo, 3.) where it was dismissed in its entirety with costs on 4/7/2008. Subsequently, the applicant unsuccessfully filed three applications at the High Court seeking for extension of time to file an application for leave to appeal out of time against the judgment of the High Court. Having failed in his applications, the applicant then filed an application for extension of time to file an application for Revision in Civil Application No. 75 of 2011 before the single Judge of this Court. The said application was made under section 4(3) of the Appellant Jurisdiction Act,1979, Cap 141 R.E. 2002, Rule 8 of the Court of Appeal Rules, 2009, Section 68 and 95 of the CPC and section 14(1) of the Limitation Act No. 89 of 1971. 2

In her Ruling, Kimaro, J.A. of this Court initially found that the Court was wrongly moved, because section 4 (3) of the Appellate Jurisdiction Act does not apply in filing an application for extension of time. She also found that the applicant wrongly cited Rule 8 of the Court of Appeal Rules, 2009, because the same was not applicable in an application for extension of time. She added that, "the rule which now regulates applications for extension of time in the 2009 Court of Appeal Rules is Rule 10. The applicant repeated the same mistake he made in the High court in moving the Court." Having found that, Kimaro, J.A. went on further and stated as follows:- "Even assuming that the applicant had moved the Court under the right provision the issue is whether he has shown sufficient cause for the court to grant the application." (Emphasis added.) 3

By stating "even assuming," we thought that she was taking it as orbiter, but in essence the single Judge proceeded with the application which was already found to have been wrongly instituted in Court. Finally the single Judge dismissed the application, hence this reference. At the hearing of this reference, the applicant appeared in _person 1 _whereastherespondentwas_representedby_MrEisa Abel Msuya, learned advocate. In support of the reference, the applicant strongly opposed the decision of the single Judge who dismissed his application for extension of time. He substantiated his argument by submitting that he was sick and had medical documents to support his contention, but the same were rejected by the single Judge. We were forced to intervene at that juncture after realizing that the single Judge erred when she proceeded with the application for extension of time while she had already found that 4

the Court was wrongly moved. The Court Suo moto, raised that point. On his part, Mr. Msuya agreed with us to the effect that the single Judge was not supposed to continue with the application for extension of time on merits having earlier found out that the Court was wrongly moved. Mr. Msuya added that the single ould-have-struck-out-the-application--and-not-dismissing -- it. We totally agree with Mr. Msuya that the single Judge ought to have struck out the application for extension of time after she had found that the Court was wrongly moved. This Court in the case of China Henan International Co-operation Group Vs. Salvand K.A Rwegasira, Civil Reference No. 22 of 2005(u n reported) stated as follows:- "Once the application is based on wrong legal foundation, it is bound to co//apse." 5

It is now a trite law that an incompetent application has to be struck out. See the decisions of this Court in Aloyce Msella V. The Consolidated Holding Corporation, Civil Appeal No. 11 of 2002, M/s Ilabila Industries Ltd. and Two Others V. Tanzania Investment Bank and Another, Civil Application No. 59 of 2004 and Naibu Katibu Mkuu (CCM) V. Mohamed Ibrahim Versi and Sons, Civil Application No. 3 of 2003 (All unreported). The applicant moved the Court by citing wrong provisions of the law before a single Judge. That means, the application was based on a wrong legal foundation, hence it was bound to collapse immediately without going any further. In the instant case the single Judge proceeded to hear and determine an incompetent application on merit and thereafter dismissed it. We are of the considered opinion that the single Judge erred by doing so.

I. For that reason, we are constrained to vary the decision of the single Judge which dismissed Civil Application No. 75 of 2011 and in its place thereof, we strike it out with no order as to costs. DATED at DAR ES SALAAM this 18th day of February, 2014. M.S. MBAROUK JUSTICE OF APPEAL S. A. MASSATI JUSTICE OFAPPEAL S.S. KAIJAGE JUSTICE OF APPEAL I certify that this is a true copy of the original. F.Jbwe DEPUTY REGISTRAR COURT OF APPEAL 7