Said Mbegu vs Bahati Mbegu (PC Civil Appeal No. 10 of 1997) [1999] TZHC 151 (2 June 1999)

. IN THE HIGH COURT OF' TANZANIA DJ.\rt ES SALAAi' 1 ; DI-3'1'RICT REGISTRY • AT DAR ES SALAAM PC. CIVIL APPEAL N0.10 OF 1997 S.4 ID r-rnEGU • ~ • • 0 0 o • • • a o • • • e • • APPELJ\NT VERSUS BMLA TI MBEGU • o o Ct o Co i, o o·O o o o • .• RESPONDENT R U L I N G BUB ESH I,_ J: The appellant/applicant filed in this court an application seeking for· orders inter alia that ' \ the appliQ.emt be granted leave to give notice of appeal out of time the applicant.be gflanted leave to.appeal out of time this court certify that a point of law is involved Mr Maftaha advocating for the applicant deponed to the affidavit in support of the application. In course of hearing the application, the respondent through his advocate Mrs Rwebangira has objected to the application. Her grounds cf objection are two 1 fold. One that the application to fiie notice'of appeal out o~ time is misconceived, on pr9cedural ahd not properly ~efore this court Secondly that this.court does not have . ;., conain:--ent power with Court of Appea:; to entertain the ,. . application for-leave to appeal out of time, in other words to grant extension of time. To eiaborate J\irs ~ Rwebangira has subrni tted that the applicant has not gormerly applied for extension ct time - in terms of Section 14 of Law of Limitation and Rule 8 of the; Court of Appeal.· She has stated' further that 'by'grouping 1 the three applications .together, the applicant has sought to preempt the exercise of discretion by this court. Counsel has also submitted that the applicant has not complied w:i,.th a11 the requirements, necessary for J.odging of appeal 1 and no copy of judgment has been ... /2 ' ' . ' ·t . ... r.

2 attached. M.rs • .i,,reqangira has also subrni tted that this court lacks jurisdiction to entertain thi~ application since it has been brought under Hules 8 and ,44 of the Court of Appeal Rules 1979. That the concurrent jurisdiction of both this court and Court of Appeal would 0nly come into play where notice to 2ppec1l has been fi1ed in time - under itule 43. She further added that .Secti.on 4 (1) of Law of Limitation does not apply here where the consolidated application if gr;=inted would permit the appeal to be heard before the Court of Appeal and not this court. On his p8rt, Mr. Maftaha for the applicant, has submitted that the grouping of applic:citions is not prohibited by law. He cited the case of Tanzania Knitwear Ltd Vs Shemshu Esmail, (1989) T-L. R, ~8 v1here the joinder of application was approved by court. He has conceded however that no notice to appeal was filed in time. .is First we h2ve to deal with the i.ssue of giving noti&e to appeal. · The notice was supposed to be i.ssued ·within 14 days of date cf judgment 19/5/98. Application was filed· on 6/8/98 Now which court has the p'.)Wer to extend time to file notice? Rule 8 of Court of Appeal Rules 1979 gives the Court of Appeal discretion to extend time.within which to file notice. Notice to appeal has to be given r':ir-:st and where there was delay reasons for the delay ha ... lo be explained before th3t court can extend time: the case of Salum Sururu Nabhani Vs Zahor Abdullah Zahor. (1988) T .L. R 41. is relevant in that regard, e O O • ./,i

3 While it may be ti'. 1 J.e that applicaticns may be grouped together as was done:? in this case, this does not include issuance of notice to appe.:al. The situation could have been different where notice to. appeal was i:e- __ tim€._. As I see it the applicant is trying to circonvent, as it ·were, an explanation why he failed to issue notice in time when he knew the date of judgment~ In sum l agre.z: with l"irs. Rwebangira for the respondent that this court lacks jurisdiction to extend time with:j..n which to file notice of appeal. And before that issue can be determined the other two aplications cannot be determined either. The ap)lication is hereby dismissed. A. • G. BUBESHI JUDGE

2;6/99