Court name
Court of Appeal of Tanzania

Edward Marealle vs Marealle Clan & Akilei Marealle () [1992] TZCA 38 (17 September 1992);

Law report citations
1992 TLR 275 (TZCA)
Media neutral citation
[1992] TZCA 38

Mapigano, Ag. J.A.: What is before me is an application for leave to appeal to this Court against the order of the High Court at Arusha, Munuo, J. in respect of costs. A similar application to the High Court was refused by Nchalla, J. in his Ruling dated G 18/10/91, a copy of which is attached.
On behalf the respondents Mr. Ngalo, advocate, has raised a preliminary objection and asked that the application be dismissed with costs. His objection is based on two assertions, to wit, that the application is time - barred and that it does not conform to H Rule 46(3). Of necessity I have to consider and determine the merits of this objection at once.
Mr. Ngalo has said the obvious, that the application was filed long after the period prescribed by Rule 43(b) had elapsed. The application was filed on 16/12/91, i.e. roughly two months after the delivery of the Ruling by Nchalla, J. Under Rule 43(b) I such

MAGIGANO Ag.JA
application should be made within 14 days of the High Court's refusal. A
Counsel for the applicant, Mr. Zaffer Ali, has argued that in computing this period of 14 days the time requisite for obtaining a copy of the Ruling of the High Court must be excluded. He has pointed out, correctly, that he applied in writing for the copy of the B ruling with maximum despatch, though he admitted that he did not send a copy of that letter to the respondents. But there is no denying that he filed the application soon after he had obtained the copy of the Ruling.
Mr. Ngalo's arguments are that Rule 43(b) does not provide for such exclusion of C time, and that in any case the failure to send a copy of the letter applying for the Ruling to the respondents should deprive the applicant of the advantage of such exclusion. Mr. Ngalo would have us apply Rule 83(2) mutatis mutandis.
Mr. Ngalo has next contended that the application is not accompanied by a copy of D the order of the High Court's refusal. In his opinion such a copy is required by Rule 46(3), in addition to the copy of the Ruling. To this contention Mr. Zaffer Ali has replied that the copy of the Ruling is sufficient for the purposes of this application. E
I have been unable to accept Mr. Ngalo's submission that the appellant is not entitled to the exclusion of the time that was requisite to obtain the Ruling. True Rule 43(b) does not make any provision to that effect. But I hold that the applicant can fall back on the provision of the basic limitation statue i.e. the Law of Limitation Act, 1971, section F 19(2). that should make a great deal of sense and meet the instincts of justice. Otherwise how can an applicant be expected to come to this Court before he has obtained a copy of the order of the High Court refusing leave? For if he comes without the copy of the order he will not have complied with Rule 46(3) and his application G would be adjudged incompetent.
There is no Rule that is relevant to the present matter which stipulates that an application for a copy of the order of the High Court must be sent to the respondent. And in my considered opinion it is not desirable to extend the rigorous provisions of Rule 83(2) H to applications for leave.
There seem to be some misconception about Rule 46(3) on the parts of both counsel. That provision is in the following terms:
I (3) Every application for leave to appeal shall be accompanied by a copy of the decision against which it is desired to appeal

A and where application has been made to the High Court for leave to appeal by a copy of the order of the High Court.
As far as I understand the Ruling of the High Court that is appended to this application is precisely the kind of order envisaged by that Rule. It is relevant to observe that in many legal contexts these words "order" and "ruling" carry the same meaning and are B mutually interchangeable. Nchalla, J. could, if he had preferred, perfectly used the word "order" instead of the word "ruling" as a heading for his decision. Indeed, a ruling is often enough a decision that pertains to interlocutory matters, such as the instant objection. C
In the upshot the objection is overruled.
Objection overruled.

D
________________