Court name
Court of Appeal of Tanzania

Metal Products Ltd vs Minister For Lands & Director of Land Services () [1989] TZCA 1 (08 February 1989);

Law report citations
1989 TLR 5 (TZCA)
Media neutral citation
[1989] TZCA 1

Makame, J.A.: This application arises out of a dispute over a piece of land, Plot No. 22 Vingunguti Industrial Area in the City of Dar es Salaam, allocated at various times to the applicants, Metal Products Ltd., and to another company Globe Tiles (T) Ltd. The B applicants unsuccessfully applied before Msumi, J. for orders of Certiorari and Prohibition, challenging the acts of the present respondents who had purported to acquire the plot that had been allocated to the applicants and had it re-allocated to Globe Tiles to whom it had allegedly been allocated at first. C
The applicants were dissatisfied with the decision of Msumi, J. which he made on 11th August, 1987 and seven days later Miss R.H. Sheikh, who was appearing for the applicants, filed a Notice of Appeal against the said decision. Thereafter an application D was made on 23/9/87, for an extension of time to apply for leave to appeal. This was heard by Mnzavas, J.K. and on 26th July, 1988 he dismissed the application.
The Notice of Motion now before me, filed by Mr. Jadeja, learned advocate for the applicants and resisted by Mr. Warema, learned State Attorney on behalf of the E respondents, is for an extension of time for an application for leave to appeal, and for leave to appeal. Mr. Warema has urged that the application for leave is incompetent as it ought first to have been made to the High Court as is required under Rule 44 of the Tanzania Court of Appeal Rules, and none was made. He also submitted that Miss F Sheikh's ground - inadvertence - was properly held by the High Court as not amounting to sufficient reason for the delay.
Leave to appeal, which was necessary in the present matter, has to be applied for within fourteen days of the decision. Mr. Jadeja is perfectly right under Rule 43 such G leave may be applied for informally. This informal application must be made "when the decision against which it is desired to appeal is given".
Miss Sheikh sought to persuade the High Court that she did tell Msumi, J. that she intended to appeal. Mnzavas, J.A. was not impressed: He said that the record did not H bear her out. Mr. Jadeja has submitted that it is possible the learned J.K. was misled by the cycostyled copy of Msumi, J.'s Judgment (which did not indicate what Miss Sheikh had said - that "We give Notice of Appeal to Court of Appeal"). Looking at Annexure A in support of Miss Sheikh's affidavit in the present Notice of Motion it is I clear that Mr. Jadeja is obviously right - Miss Sheikh did indicate her intention

to appeal, whether as Mr. Warema says, she was weeping in the process; or not. But A what was the effect of this? Was Rule 43 complied with? Mr. Jadeja submitted thus:
contend an informal application - 'I apply for leave to appeal' - whatever the words - would B refer to leave to appeal, No informal application for Notice to appeal is necessary.
Of course Mr. Jadeja is right again, but only as far as he goes. "Whatever words" used in clear connection with the application for leave to appeal - Yes - but not any words. C "Whatever words", without the qualification indicated is too wide a proposition. What Miss Sheikh did on 11th August, 1987 was to indicate her intention to appeal, which she was free to do, and indeed she made good her word when she filed her Notice on 18th August 1987. How from what transpired in the presence of Msumi, J. Miss Sheikh was able to assume that leave was granted I find utterly startling. Why D should she make such an assumption? Part of para 10 of Miss Sheikh's affidavit goes thus:
Mr. Justice Msumi delivered the judgment on 11th August, 1987 and I immediately told the E learned judge that I wanted to appeal. There was no objection coming from counsel for the Respondents and I saw the learned judge writing down something which I assumed to be the granting of leave to appeal. In the sure knowledge that I had been allowed to appeal I F proceeded to file the annexed Notice of Appeal ...
With the greatest respect, such 'sure knowledge' was baseless and ill-founded.
Mr. Jadeja furnished me with a formidable list of authorities - indication of his usual G industry - and ably took me through some of them: From Gatti v Shoosmith, right up to I.F.M. F. Simon Manyaki. They show the evolution of thought - from special cause to sufficient reason - and the courts' persistent dislike to have their discretion fettered in these matters. We still have to consider - whether there was sufficient reason for the H delay in taking the steps Miss Sheikh should have taken. The delay must relate to the period right from the time Msumi, J. delivered his judgment, not just from the time Miss Sheikh says she discovered her blunder. Quite frankly, the reason here is Miss Sheikh's ignorance of the procedure, or her blatantly unwarranted and erroneous assumption I that she had been

granted leave. This is outside the category of explicable inadvertedness and cannot be A condoned. Otherwise the rules would be pointless - they were made to be followed and their broken can only be excused if sufficient reason is shown.
I respectfully agree with Mr. Jadeja, and I find support for this even in the ruling by the B learned J.K. himself, that there were in effect two applications made to the High Court - for leave and for extension of time. In the particular circumstances of this case Mr. Jadeja has a point that the refusal to extend time was in substance refusal to grant leave also. Mnzavas, J.K. did make reference to the application for leave. For myself, I C am not persuaded to hold that it is just what leave should be granted. The record shows that on 30th June, 1987 Miss Sheikh merely asked for more time in which to prepare herself and that she also prayed for leave to file and reply to the respondents' counter affidavit as she had discovered some facts which were not pleaded in her D affidavit. She did not indicate the subject matter of her discovery. Her application was dismissed. She should have researched for her case more carefully in the first place. Some of the things she is now alleging in her affidavit could not be considered by the Court of Appeal without calling for additional evidence, nor have I the means to know E the truth or otherwise of them at this eleventh hour. In the exercise of my discretion I refuse to grant leave to appeal and I have indicated why I also feel, though for rather different reasons, why I also would not allow the application to extend time.
F Order accordingly.

G
________________