Thee Republic vs Ahmed J. Aladin and Others vs Thee Republic (Miscellaneous Civil Application No. 58 of 1999) [1999] TZHC 84 (8 July 1999)

. ,.i IN THE HIGH COURT OF TANZfJHA DAR ES SALA.J\M DISTRICT RIDI.S'l'RY AT DAR ES SALA.AM MI$CELLl.NIDUS CIVIL AJ?PLIC!'t'ION NO ••••• $Lof 1999 VERSUS

1. AHMED J. /l.LADIN •••••••••• 1st Respondent 2 .. Jl.FF@ A. AL{.DIN •••••••• 2nd RESPOI'.J:BE}T / This is an application by th applicants filed by way of Chamber Summons supported by an affidavit of one Peter J. Swai, a learned Counsel under Order XLIII rule 2 of the Civil Procedure Code, 1966 and Section 5(l)(c) of the Appellate Jurisdiction A~t, 1979.
2. The application seeks the applicant to be granted leave to appeal to court of Appeal against this courts decision of 23rd F0bruary, 1999 in the Ci v:i.l Appeal No.. 71 of 1998. 2• Costs of the application is provided faro 'I'he applicant is represented by Mage.fu, learned counsel while the respondents are represented by Mr. Majithia, learned counsel. On receiving the copies of the Chamb,3r Summons, Mr·. Majithia filed a notice of preliminary objections based on law:- (l~. Th'3t the application was not filed within time and .,-:.•· as such it should be dismissed with costs. (2) That the chamber summons is defective and as such it shouid be dismissed with costs. In his submissions oefore the court, Mr. Madithia, learned counsel submitted that the chamber surrnnons ought to have been filed under Rule ~3(a) of the Court of Appeal Rules instead of Ord • . XLIII rule 2 r,f the Civil ~Procedure Code, 1966. He went on to submit that the application for leave should be filed with 14 days from the date of judgment and the judgment in the case was delivered on 23/2/99 and the application was filed on 2/3/1999. He based his urgument on the supporting affidavit which in its 2nd paragraph, it is stcited that the judgment -was entered on 23/2/1998. • "0 2/ •

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• 2 In his second and important point, he said that the application was filed under-a.wrong l2w. The reason i8 thnt rule 46 (3) of the Court of Appeal Rules as /3mended by G.,N,. 157 of 1984 requires that:-- H (3) EvE:ry application for leave to appeal sh.all be accompanied by a copy'of the decision againl3t which· it is desired to appe,:tl and where .9pplication has been m::1de to the High Court for leave to appeal by a copy of the order of the High CourtH. Hro Majithia, learned counsel submitted thc1t the order of the High Court is not attached to the Chamber summons and this is rnmaziaantory_ so its absence makes the application void. He supported his urguments with the High Court decision in Civil Case Noo 73/1996 .. Centrepoint Inve- stiment Ltd Vso N.BoC• Head Office Dar es Salaam Registry ( unreported) where Nliliekela Jo had this to say in his 7th p.-ige of the Ruling: H Indeed, an applicntion has been m2de to this court for leave to appeal but unfortunately it has not been accompanied by a copy of the order of the High Court. This rule is couched in marldatory terms.i It ha.s not been complied with by ,the applicant." The judge therefore concluded his ruling by saying that 11 in the result, the applicotion for le.sve to appeal is incompetent for ndn- extraction of the order in terms of Rule 46(3) of the Court of Appeal Rules, 1979 and it is accordingly struck out with costs 11 • I would start with the first point raised by the learned counsel, Mro Majithia. From the affidavit, it J.S true that it is sworn that the judgment was delivered on 23/2/1998 but in actual fact, it was deliverer· on 23/2/1999 and the figure 1998 is just a t)rping error. I would go on the substantive truth found in the courts record anci not on the typing error found in the affidavit as submitted _by Mro Magafu advocate of that is how the matter is, then the chombcr summons were filed within the fourteen. days ·limite. It ,-,as filed on the 9th day from the date of the judgment, that was to say 2nd March, 1999. Hence it was filed within the prescribed time of 14 days., In reply to the submiz.sions by Mi:. Madithia, Mr. Magafu, learned counsel submitted that the application for leave to appeal to ·court of Appeal made b_efore the High Court is governed by Ord. XLIII rule 2 of the Civil Procedure Code, 1996 and Section 5(c) of the

3- Appellate Juri:sdiction Act Noo 15/1979 whereby there is no mandatory requirement to attach the order to the Ftpplicatiori. Order XLIII rule 2 of the Civil Procedure Code, 1966 provide,s for every application made under the Code to be made by a chc1mber summons supported by an affid;:ivit. This w2s complied with by Mre Magafu, learned counsel. Section 5(c) of the Appellate JuTisdiction !let No. 15/1979 provides Under the heading ;; Appeals to the Court .ef Appe;:il" s.5(1)(c) In Civil Proceedings except where any other written h1w for the time beinr, in force provides otherwise~ an appeal shall lie to the Court of Appeal, with the leave of the High Court or of the Covrt of Appeal, against every otqer deeee, order; decision or finding of the High ·court. ' 1 Ort proper-scrutin of subsection (c) quoted above, one would note that there may be two applicc',tions, one of the High Court and the second leave will be that of the Court of Appeal itself, that is probably under rule 44 of the Rules. As per rule 44 of the Court of Appeal Rules, applications for leave to appeal to court of Appeal mu,t be made in the first instance to the Hie;h Court. Thnt is what ½r. i"Iagafu 1 lr:arned counsel did and he complied to rule 43(a) of the Court of i.ppet:,l Rules by filing _a Chamber .Sur:1rnons in accordance to the pr2ctice of the High Court, thc'Jt is to say, chamber summons supported by an affidavit. .See Order XLIII rule 2 of the Civil Procedure Code, 1966. Under the practice of the High Court, there is no mandatory provision th2t an order be accomponied to the application. Howeve1 1 Rule 46(3) of the Court of Appeal Rules makes it mandatory for evr.·ry applic2.tion for leave to appeal to be accompanied by a copy of the decision against which it is desired to appe-cJl and, where an application has been made to t_he High Court for leave to appeal by a copy of the order of the High Courto That is where then Mr., Majithia, learned , ~attn:tr.:l is raising his eye brows that such an o:rdor was. not attached to and as it was held by hon. Nsekela Judge, in the Centrepoint InvestigJent Ltd Case ci:teded above that the applidation for leave was incompetent as it was not accompanied by the order intended to BjJpeal ago.inst.

4 - Mr:., Magafu, learned counsel urgued th.:::.t the decision by hon. Nsekela Jo was decided per incuriarn in that the learned ,judg0 overlooked the requireE1ent of the law in filing applications before the High Court for leave to 2.ppeal to court of appealo The Counsel went on further to submit that for th<? court of Appeal, it is necessary that the decision or order appe8ed against should be accornp:1I1ied to the· epplication as it will be the basis of opening the file while in the High Court, all the court records are in the very file before the trial judge, .L-..: Admittedly, the court of Appeal Rules are technic,,11. They need a thorough and open mind in deciding o. thing based on ito As it is, the court of AppeEJl Rule,s are mainly and substantially applicable in the court of Appenlo For that reason therefore Rule 46(3) of the Court of Appeal Rules talks of necessary docur.ients to be accompanied in a., application for le 8 ve to appeal before the court itself and not, on my opinion, to the High Court. My rer1soning is based on Rule 43(a) where it talks of applications for leuve in the High Court whi{U:. .g-c t!'l. follow the pnactice applicoble in the High Court. But under Rule 43(b) where the applicatio lies with the leave of the Court of Appeal, then Rules in 46 and 1 +7 are applicable, In this ca,se therefore, Rule 1t6(3} · of the Court of Appeal Rules would only apply if,. the application for leave was made under rule 43(b)., In that case then, there would be the need for the accompr-m;ring of the decision of the High Court, which was to be appealed agGinst or the order of the High Court refusing leave to appeal to the court of Appeal •. The words i 1 every application for leave to appeal shall be accompanied by a copy of the decision against ,-.,hich it is desired to appeal and, where application has been made to High Court for leave to appe3.l by a copy of the order of the High Court:: pr.esurpo~es that Rule 44 was applied., If this rule is applied, then there c:oul::d be a decision of the High Court accomprmirt; the applic,~tion for leave or if the applicatic . 0 started in the High Court as required by Rule 44 in Civil Case, then the order of the High Court refu::,ing to grant leave should be accompanied in the application for leave to appeal. Hence those two documents, copy of the decision and or the order of the nigh Court are mandotory documents to be accompanied when the applic::::ition for leave to appeal is mnde to Court of /1ppeal and not to the high Courto• For that reason, I beg to differ with the ruling of hon., Nsekela J., and the submissions by Mr. Majithfa., learned counsel for the respondent •.

,J -5- :My .view is therefore tr ... at no mandatory requirement of the documents to be accompanied in an application to the High Court for leave to appeal to the Court of Appec::l and th, 0 ,refore the application by Mr. M,=:J./:afu, learned counsel is properly and legally before this court. The preliminary objection on a point of la\v is dismissedo . . . Costs shc111·be costs in the suit 0 A. R. MANENTO - JUDGE 8/7/99 8/7/99 Coram: A.,.R. Manento Judge Mr. Magafu - for applicant Mr. Majithfo - for the Respondent CC: Ngonyani Cot: The ruling is re2.t:l. bofore the learned counsels. A. R. MANENTO - JUDGE ~ 8/7/99· J\1r!_,jithi..£l_ I am applying for lec1:ve to appeal to court· of Appeal against the ruling of this Courtt based on law. Mr. Magafu_:, I have no objection, taking into consideration that this is a matter of public interec,t. There is a confussion between the amendment of the Cowt of Appeal Rules and the Appellants Jurisdiction Act and Civil Procedure Code, 1966. It is the proper time that the matter is determined by the ecurt of App().:;l., Order: Upon oral application ,by Mr. Majithia, learned counsel for the respondents to be gr.:mted leave to appeal to court of Appeal for purpose of clarity of these provisions, an applicntion which is supported by Mro Mar;afu 1 learned counsel that it is high time this issue is presented to the Court of Appec'\l, I do agree that there is c1 confussion created by the amendment of Rule 46(3) of the Court of /.ppeal Rules as against the Civil Procedure Code, 1966 and the Appellate Jurisdiction Act, 15/19790

6 - I therefore gri:!nt leave to Mr. Maj:i.thia to appeal ag,'\inst the ruling of this court so tl.v,t the legal issue is deformined by the Court of Appeal to avoid the confusion. Till then, the applicGtion is adjourned. A. Ro MANENTO - JUDGE 8/7/1999