Sambula Lodge Ltd vs Yohana Mbilinyi (DC Civil Appeal No. 7 of 1997) [2000] TZHC 620 (19 May 2000)

.!:1Qf3HI, J. AT MBEYA DC CIVIL APPEAL NOo 7 OF 1997 (FROM ORIGINAL MBEYA R.M'S C6tJRT CIVIL CASE NO. 11 OF 1995 BEFORE: So BONGOLE - RE~IDENT:MAGISTRATE). SAMBULA LOOOE LTD. . o o o •• o o •••••• ' VERSUS YOI-IANA MBILINYI I o••o•o•ooooeeo•o r APPELLANT

RULING

• .... ~ On 17.4.98 Mr. Mu.shokorwa, learned advocate for the Applicant, prefsrred this application for leave to appeal to ,the Court. of Appeal under Rule 43() of the Court of, .Appeal Rules 1979, wich the learned advocate for the Responde;.1t, Mr. Mbise~ conten~ ·in a peliminary objction t·t .t is far out of the time . . i prescribed by law. This was ·a second application as there had been a first ' ' application.filed on 16.2.98 whieh, however, did_ not proceed., To a::·,.,,..-.,:;ciate what is involved, here i~ ~ background note. ·In terms of Rule .4~(a) .of the Rules, an applitio for leave to appeal to the :Court of Appeal_ must be sought in thP.,:iti:gh ot within 14 days of the decisi0n complained of. Else, an applio4Cion for enlareme.nt. of time is ne•.,essary The judgme~~ q~ the High eour.{·was delivered on 6.2.98 before the partios., Or. 11.2.,98 Notir.-=- 0£·~ was lodged and an appl!cation for CQPY of the order of the High Court was ma.de. //~ , ' Rule 46(3) as repealed and replaced by paragraph 2 of Government Notice N90 157 .of 1984 requires every application for leave to appeal to the Court of Appeal made to the High Court to· be accompanied by copy of the order 0·: th'-' decision complained. of. On 16.2.98 the first application was filed.. Thie.: WaJ;j before a copy of the _order of the decision of the High Court -1as re-::-e:i.:ed.. So none accompanied the first· application. But it was certainly meant to beat the time-limit for filing an application for leave to appeal. On 15.4.98 copy of the order of the decision of the High Court waL supplied·~ Bo Mr. Mushokorwa filed the second application on 17 .. 4.98 which thio time accompa.-iied 0000000 /2

• 2 - the order., The second application, as the first, is supported by an affidavit -:: ;h - ,·iu.ohukorwa. The learned advocate stated in paragraph 2 of the affidavit in support of the second application that the second application is the formal one and that it was in lieu of the first one he ealled informal. It is established and undisputed that the second application is out of time by almost two months. F'or it to have been within time it ought to have been lodged on or before 20.2.98. In an effort ·to get out o·f the awkward situation in which he found himself, Mr. Mushokorwa took a somewhat unusual course. The learned advocate asked this court to act on the first application since it had not been formally withdrawn or adjudicated upon. I must sey I am astounded by this p,. _ ·ition. First, the second application had taken the place of the first applica,. .., t the request of JVir. Hushokorwa himself. The second application was the formal one. The respo ~ ed witk the Cha.11ber Summons on the second application, not on the first, in resistance of which f"lir. Mbise filed a counter-·affidavit. Second. the first application itself, though seemingly within time, does not appear to have pr8parly been l•d,ged or want -0f the requisite accompaning copy of the order of the High Court decision. · With respect to Mr. Mushokorwa, the cireumstances were meet for an application for enlargement of time to file this application, and the delay in obtaining the copy of judgment within time would have been relevant there. I rule therefbre .:that this application is time-barred. The pr.eliminary .,:>-(: /' :-: ··----~~-, (_,---:..-·,, objection is\sustained, ;ihl:t:is application is hereby dismissed with costs. ' ~ . -~ ,.,...__, . AT MBEYAa r...c:a.-'".--- 19 May 2000. For .1-1.1-11' ; ,.._::.L..,_t: Present. ... For Respondent: till'. Mt,1...,.,,..