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R a, rvl IN TRE HIGH COURT OF TANZANIA JVIISC. CIVIL AFFEAL NO4 OF 1999 - (From the decision of the Rungwe District Court District at Tukuruih Misc. Civil Appeal N9/98) EDIARD M.BWAGAG .. ,.... . •. ... APPELLIcT v • SUs ,.., • . . . SUBILAGA NDABILC . . . . . ... . .... RSPOND'ENP RULING _____ • .: .. The respondent auccessfully pètitIone for divorce before the Tilcuyu Urbar Primerj Court. The appeJ lant did not a peal withinthe iié prescribed. by law. •, So he applied f or enlargement of tixiie withi which to ai ei ifbre th District Court of Runwe District at Tkuru. He instituted his application on 18th iJay, 1998. That application was disi-rdssed whnthe • .ppiicant defaulted to appear on 14th August 1998. The appellant before me has appealed to ci.al1enge the decision that dis ussed his application for extention of time. . . Mr. 1.1bi learned counsel for the appellant has argued this apijeal. He has.urged me to allow the appeal, dortending that that is the only way todo .ustice to his cliert..According to learned Oounsel the appellant had two options n to him. One, that he ,could have a -,.-.-olied before the District Court for an order to set aside the order dismissing. the appliQation. The second option was for him to appeal, as he has done. Wnen asked to give the, legal basis. for. the second option learned ?comase1 gave upthat iciea,conceng that the applicant ought to have ped,:the first option. •Hovr, now that he has

2 aI)pealed he is, nevertheless,, entitld to receive a judgment on the Inc. t te r. " Now the procedure f or app 1cations for extention of tiie reJtng to apea1s ori'nating in priiiorT courts is prov4ed for wader Rule 3 of the Civil sProcedure (Appeals in Proceec'ings Oriint.ing":ii, Primary Courts), Rules, 1964 which were published as Government Notice i\To.312 of that year. It provides, the re1evt:T'par't..only, "3 An application for., leave to appeal out of time to a Distr'it'.Q.óu±'t;"from a decision or order of a primary court shall be in writing, shall set out the reesons why a petition of appeal was: not or cannot be filed within thirty days after the date of the decision or brder against uhich it is desired to açpeal, nd sh11 be accoripned by the petition of a L ea1 or shall set out the grounds of objection to the decision or order The Rules. do not provide any particu1rcourse of c.,ction to be takei'i in case an a jpl1ct1on for extention of ti'uie 1'3 cisiissed for cLc f u it. ;ilhe re, howe e r, an ap oe 1 is dismissed u on do fault to anpeat by the appellant, Aule 17 provides that:- the appe1L1art, he or his agtthay apply to the 011ate court f'br dhe re—admissirni of the a1'iPa1 and if the p0tit is atisf'ied that he was prented by any suffice c'use from ap o"ring either p e r s o i ll y or by agent when the appeal was. celled on f o r hearing it may re—admit the tppal on such terms as to costs or otherwise as it thinks fit." Since the rules do not make provis.on for the proccJ1re to be foflo'ed in a case such as this one it cnot be assunec that the j .../3
.3 - applicant is entitled to apeal as of rigIit As it is now vll settled, an appeal is a creature of legislation. True, there is a laouna in the legislation; but it has never been the function of courts in this country to fill in lacunoe in statutes. Th furthest the court can go is to in the legislation to d±scovr. the intention of the legislature.. If in the instant case, Parliament intended to create a right to appeal against order made upon a partyts default to appear it would said so In my judgment therefore, the provisions of Rule 1'7.. apply, iuiutatis mutndis to applications which have been dismissed in similar circumstances. It follows, then the apil1ant was required. institute an application befQre the District Oburt for the re- admission of his application. His failure to d.o so has rendered his appeal untenable; it would fail a • a result. The appeal is dismissed with costs upon the foregoia considerations. De liyre d. ,. • J.M MACKANJA : JUDGE

26 9 2000 Appellant: In person Respondent: In person. Certified true copy of the original judgment WAiBURA DI$TICT REGISTRAR 1!IBEYA

Judgment

2 aI)pealed he is, nevertheless,, entitld to receive a judgment on the Inc. t te r. " Now the procedure f or app 1cations for extention of tiie reJtng to apea1s ori'nating in priiiorT courts is prov4ed for wader Rule 3 of the Civil sProcedure (Appeals in Proceec'ings Oriint.ing":ii, Primary Courts), Rules, 1964 which were published as Government Notice i\To.312 of that year. It provides, the re1evt:T'par't..only, "3 An application for., leave to appeal out of time to a Distr'it'.Q.óu±'t;"from a decision or order of a primary court shall be in writing, shall set out the reesons why a petition of appeal was: not or cannot be filed within thirty days after the date of the decision or brder against uhich it is desired to açpeal, nd sh11 be accoripned by the petition of a L ea1 or shall set out the grounds of objection to the decision or order The Rules. do not provide any particu1rcourse of c.,ction to be takei'i in case an a jpl1ct1on for extention of ti'uie 1'3 cisiissed for cLc f u it. ;ilhe re, howe e r, an ap oe 1 is dismissed u on do fault to anpeat by the appellant, Aule 17 provides that:- the appe1L1art, he or his agtthay apply to the 011ate court f'br dhe re—admissirni of the a1'iPa1 and if the p0tit is atisf'ied that he was prented by any suffice c'use from ap o"ring either p e r s o i ll y or by agent when the appeal was. celled on f o r hearing it may re—admit the tppal on such terms as to costs or otherwise as it thinks fit." Since the rules do not make provis.on for the proccJ1re to be foflo'ed in a case such as this one it cnot be assunec that the j .../3
.3 - applicant is entitled to apeal as of rigIit As it is now vll settled, an appeal is a creature of legislation. True, there is a laouna in the legislation; but it has never been the function of courts in this country to fill in lacunoe in statutes. Th furthest the court can go is to in the legislation to d±scovr. the intention of the legislature.. If in the instant case, Parliament intended to create a right to appeal against order made upon a partyts default to appear it would said so In my judgment therefore, the provisions of Rule 1'7.. apply, iuiutatis mutndis to applications which have been dismissed in similar circumstances. It follows, then the apil1ant was required. institute an application befQre the District Oburt for the re- admission of his application. His failure to d.o so has rendered his appeal untenable; it would fail a • a result. The appeal is dismissed with costs upon the foregoia considerations. De liyre d. ,. • J.M MACKANJA : JUDGE

26 9 2000 Appellant: In person Respondent: In person. Certified true copy of the original judgment WAiBURA DI$TICT REGISTRAR 1!IBEYA

Edward Mbwaga vs Subilanga Ndabila (Misc. Civil Appeal No 4 of 1999) [2000] TZHC 285 (26 September 2000)

Judgment

Discussion

Edward Mbwaga vs Subilanga Ndabila (Misc. Civil Appeal No 4 of 1999) [2000] TZHC 285 (26 September 2000)

Judgment

Discussion