Fares Munema vs Asha Munema (Civil Appeal No 80 of 1995) [1999] TZHC 100 (7 October 1999)

IN THE HIGH COURI' OF T!'.Jil'Zf-tNIA AT DAR ES SALA.AN · CIVIL APPEAL NOo o ••• • ••••• o •. o 80 of l995, FAlES MUNEMA ...... o •• •.•• ., •• o •••• • APP 1 LLANT VEI<SUS ASHA MUilfEM.A • ., o • ... • ••••• • • •• • ••• o RESPONDENT RlTLING I-1A,NENTO 2 Jo • The applicant Fares Munema was the husb.,:md of the respondent one Asha Munema •. Their marriage was disolved by the Kisutu Principal Resident Magistrate on 3/2/95,, The marriage of the parties was declared broken irreparably. The respondent was given the custody .. of the children of the marriage and the applicant appealed to this court. The High Court confirmed the decision of the lower court and the order for custody of the children.. The judgment of this court was delivered on 9/3/99 '.3Ild the applicant was given a copy of the judgment on the same day., that is to say, ·9/3/1999. He did not give any notice of appeal .within the 14 days prescribed under Rule 76(2) · of the Court of Appeal Rules. He has filed a Chamber Summons, supported by an affidavit under Rule 5 of the_ Court of Appeal Rules, seeking for extension of time to file notice of appe1:1l and an applic.,tion for leve to appeal to court of appecl against the decision of this courto The applicent deponed .in his affiavit. that he was served with the copy of the judi;ment on the day it was read in court, and on 12/3/99 he verbally told the court clerk that he would appeal against the deision of the court, but he received no instructions at all from the court clerk. He reported to ·the High Court again on 26/3/99 for further instructions and he wns told that he we;r-e to give a 14 days notice of his intention to appeal. 17 days had already elapsed and he was therefor2 nlready time barred 0 Be.sides that advise, he did not file an a pp lie ation for extension of time till 7tl1 ,June, 1999, some 90 days since when he was required to file the notice. • He was late by% days. Finally, the applicant said in his 7th paragraph of the affidavit that the delny in giving the notice was not a deliber:Jte one and that it wc1.s caused by lacl-: of proper instructions and com'llunicatioo between him and the court.

• 2 - On the other hand, Mre Kisusi learned counsel for the respondent reiJlied. on his 3rd paragraph of the counter affidavit thc1t this court has no powers to grant" the extension of time for giv:ing notice of appeal, ·except the court of AP1:eal itself. I think tbe:..c., is merit on this pointg Rule. 8 of the Court of Appeal Rules provided tl"12t:- n The court may for sufficient reason exter:.d the tirr. limited by these Rules or by any decision of the Court or of the High Court d>or the ,foing o.f any act authorise<i or rquired by these Rulst whether before or after the expiration of that time and whether before or after the doing of the act, and any refernce in these Rules to any such time shall be construed as a reference to that timc:: as so extende"dn. The word I Court' in the Court of Appeal Rules means the Court of Appeal and it does not include the High Court, so it is only the court of Appeal which has powers to extend the period of limit;CJtion prescribed in these Rules. Whn the applic,mt filed his chE:mber summons, he cited Ruled 8 and 43 of the Court of AppcF.tl Rules. He was only right as regard _ to Rule 8 which deals with the xtension of time but he wrongly quoted section 43 which deals with applications for leave to appeal to the court of Appeal. The relevant Hule for purpose of notices is Rule 76 of the Court of Appenl Rules. If i[ am to pose here, I would like to say th1-)_t this Chamber Summons for theextencion of tim~ to file notice of appeal is improperly before this court for want of jurisdictiono Other urguments to follow c)re· for academic exercise only as I hav6' already disposed of the matter before me., Even 1f this com~t had jurisdiction to extend tho time limit for filing of· a notice of Appeal, it would need reasonable explanations to justify the ~elayo The applicant was late for 76 days to give notice of nppeal and the re&sons advanced ·of lack of knowledge is immaterial. Ignorance of the law is no uefence for if it were a defence, the 9ourt process would be abused for any person could plead ignorance of the law. See the Court of Appeal Ruling in Civil Reference No. 5/1995 ( DSM Registry - unreported) Selemani Shabani vso Mwnmtoro Ally where Orr1-1ri, J.A. in the first p3ge of the ruling said:-

..... .... ·•· ·•·-F .. ·• , .,;9 :•-• i ,:; ·> . f 3 ... II Ignoranee of tnc lnw on the p3.rt of applicant did not avail him in his applicntion for extension of time to file a reference nor could the judge be held responsible for not informing him of this requirement which is found in rule 57(1) of the Court of ';Appea1oRules 11 o Likewise, in this applicc:1tion, neither 1.>iere the court clorks nor the judge were required to educate the applicant on the requirement of Rule 76 of the Court of Appe1:1l Rules-, Ho',i/cver, the applic . .,,nt knew that he would get some information from the court clerks, and when he enquired after 17 days from the date of the judgement of this court, was told of the 11+ dys noticeo Even though, he did take any irnmedibc steps to remedy the sitntion, but he went to · rest until after some 90 de.ys from the date of the decision of this Court. ·The application for cxter..sion of time also lacked reasonable grounds and it should be dismissed and I hereby not ,dismiss the chamber summons for the reasons stated above with costs. Besides that, the applicant is informed thRt he can still appeal to the Court of Appeal agaim·t frr1J dicision. ' : t,t\ :-. -: ::.-;-:~·-. A. R. MArJENTO JUDGE 7/10/99 ?jl0/99 Coram: . Manento Judge Present in person - for the Applicant Absent - for the Respondent CC: Manumbu. Court: The ruling is rend in the absence of Mro Kisusi, advocate, but in the presence of the applicant!' A. R •. MANENTO 7/10/99 JUOOE