Sambula Lodge Ltd vs Yohana Mbilinyi (DC Civil Appeal No. 7 of 1997) [2000] TZHC 623 (19 May 2000)

f:!Q_SHI 2 J. AT MBEYA ·DC CIVIL APPEAL NOo 7 OF 1997 (FROM ORIGINAL MBEYA R.M'S COURT CIVIL CASE NO. 11 OF 1995 BEFORE: So BONGOLE - RESIDENT MAGISTRATE) SAMBULA LOOOE LTD. oooee.aooooeoo APPF,i J ,ANT VERSUS YOHANA MBILINYI RESfONDENT ··- un 17.4,98 Mr. Mushokorwa, learned advocate for the Applicant, prefGrred this application for leave to appeal to the Court of Appeal under Rule 43(a) of the Court of Appeal Rules 1979, which the learned advocate for the Respondent~ ,."- Mb . contensis . 1 . . · · · .' 1·u·• 1se, ; in a pre irninary objection that it is far out of the ti.ille prescribed by law. This was a second application as there had been a first application. filed on 16.2. 98 which, however, did not proceedo 'J:o ar; ,.,ciate what .. is involved, here is a background note. In terms of Rule 43(a) of .the Rules, an apr:;-__:::ation fo! leave to appeal' to the Court of Appeal must be sough;t in th:=:· -.:igh Court within 14 days of the decision complained of. Else, an ~~p;ir, ... -cion fer enlargement of time is ne~essary. The judgment of the High Court,·was delivered on 6.2.98 before the parties., :'\r. 11,,2098 Noti.cQ 0£ .A,,.,4 was lodged and·an application for copy of the order of the High Court was made.. /" Rule 46(3) as repealed and replaced by para.graph 2 of Government / . . ...... Notice No.· 157 of 1984 requires evy application for leave to appeal to the Court of Appeal made·to_the High Court to be accompanied by copy:of-the· ord.er.:: t:hr-, decisicn complained of. On 16.2.,98 the first application was file;'dp ··Thie wao before a copy_·c;f the order of the 'decision of the High Cotl.I'.t ':Jas :r-0c:e:i.red,; So none accompanied the first application. But it was certainly meant to beat the time-limit for filing an application for leave to appealo On 15c4.98 copy of the order of the decision .of the High Court wa,; supplied So Mr. ifashokorwa filed the second application on 17.,4 .. 98 which thiLI time accompa..Y1i.ed . 0~00000 /2

2 the order. The second application, as the first, is supported by an affidavit -:--f Ii.·, i-iu.:snokorwa. 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 called informal. It is established and undisputed that the second application is out of time by almost two months. For it to have been within time it ought to have been lodged on or before 20.2.98. In an effort to get out of the awkward situation in which he found himslf, Mr. Mushokorwa took a somewhat unusual course. The learned advocate asked this court to act on the first appl-ication since it had not been formally withdrawn or adjudicated upon. I must sey I am astounded by this pro_ ition. First, the second application had taken the place of the first applic," "' 13..t the request of Mr. Hushokorwa himself. The second application was the formai one. The respondent se.rved with the Chamber Summons on the ·;i' second application, not on the first, in resistance of which Mr. Mbise filed a couhter--affidavit. Second. the first application itself, though seemingly within time, does not appear to have pr4!1perly been l•d,ged .for want -of 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 therefore that this application is time-barred. The preliminary objection is sus:tai:tied 1 and this application is hereby dismissed with costs. AT_ MB];,'YAo .19 May 2000. ,:11 __ ·. ' . ;i,:::::':::·· For .1-1.,1:1.t,,:; : ;-:nt: Present. For Respondent: Mr. MlJ.1.""'°.