Court name
Court of Appeal of Tanzania
Case number
Civil Application 6 of 1997

William Shija vs Fortunatus Masha (Civil Application 6 of 1997) [1997] TZCA 20 (25 August 1997);

Law report citations
1997 TLR 213 (TZCA)
Media neutral citation
[1997] TZCA 20

Lubuva, JA
In the Court of Appeal Civil Application No 6 of 1997, Dr Fortunatus Lwanyantika Masha, the respondent had applied for extension of time within which to file the appeal. The learned single C judge (Mfalida, JA) granted the application in terms of the following order:
   (a)   The applicant should file the notice of appeal fourteen days from the date of this ruling.
D    (b)   Thereafter the processing of the appeal including the time table will be in accordance with the rules of this Court.
The applicant being dissatisfied with that decision has filed this reference. In order to appreciate the E sequence of events in the case its background is necessary. Briefly stated, it is as follows: The Civil Appeal No 43 of 1996 to this Court was struck out on the ground that it was incompetent because the extracted order was not annexed. The Court directed that the respondent who was the F appellant, could, if he so wished, institute the appeal afresh by making the appropriate application before the High Court. Following that decision, the respondent filed Miscellaneous Civil Cause No 15 of 1995 in the High Court at Mwanza. In that application the respondent sought to have the extension of time within which to appeal to this Court against the ruling of the High Court (Chipeta, G J). The learned judge dealing with that application held that the High Court had no power to grant extension of time to appeal in a matter where the right of appeal to this Court lies as a matter of right. That the matter had to be dealt with by the Court of Appeal, the learned judge further held. H Consequently, the matter was brought up to this Court in Civil Application No 6 of 1997.
Granting the application, the learned single judge of this Court held that the delay on the part of the respondent was technical, not actual. The learned single judge took the view that the original appeal Ithough incompetent was lodged in time. In the view of the

learned single judge, the respondent acted immediately after the Court had struck out the first A appeal. On these grounds, the learned single judge was convinced that sufficient reason had been given to warrant the extension of time. The application was allowed.
Before us Mr Mwale, learned Counsel, appeared for the respondent. On the other hand Mr Makani and Mr Muhula, learned counsel, advocated for the first applicant. The second applicant, the B Honourable the Attorney General was represented by Mr Werema, learned Senior State Attorney. Mr Mwale vehemently submitted that the application before the learned single judge for extension of time to file the appeal was incompetent because it lacked the pre-requisite notice of intention to C appeal. This he said was because with the striking out of the appeal by this Court in Civil Appeal No 43 of 1996, the notice of appeal also disappeared. And so, Mr Mwale observed, in the absence of the notice of appeal, the application before the learned single judge was incompetent and therefore D the proceedings were a nullity. The order by the learned single judge, Mr Mwale further further submitted, arising from such proceedings is incompetent, it should be set aside. In support of his submission, Mr Mwale referred us to the decision of this Court in the case of Arusha International Conference Centre v Damas Augustine Ndemasi Kavishe (1). E
Responding to the submission by Mr Mwale, Mr Makani, learned Counsel strongly maintained that the application before the learned single judge was competent. He stated that the issue of the F competence of the application was not raised before the single judge and therefore it was not open to be raised at this stage on reference. The only issue before the single judge was an application for extension of time within which to file the appeal, Mr Makani urged. With regard to the notice of G appeal, it was the view of Mr Makani that once an application for extension of time to file the appeal was lodged, by necessary implication there was also an application for extension of time in which to file notice of appeal. If we understood Mr Makani properly, he seemed to be of the view that on account of an implied application regarding notice, the learned single judge granted a relief which was not sought. That is, the first applicant was granted extension of fourteen days within which to H file the notice of appeal.
For the second applicant, Mr Werema, learned Senior State Attorney while conceding that the application before the single judge lacked the requisite notice of appeal, still he insisted that as the matter involved an election petition which of great public interest, I

A the learned single judge was properly vested with jurisdiction to deal with the application.
With respect, we are in agreement with Mr Mwale that when Civil Appeal No 43 of 1996 was struck out, the notice of appeal was also struck out. In that situation, it is our view that if it is still so desired B to appeal, a fresh application has to be filed in the High Court seeking extension of time in which to give notice of appeal. In the case of Arusha International Conference Centre v Damas Augustine Ndemasi Kavishe, (supra) this Court had occasion to consider the effect of striking out an appeal. In that case it was stated:
C    `The application for extension of time to file the memorandum and record of appeal presupposes that there is already a notice of appeal in existence. But the notice of appeal which brought into being the appeal which has just D been struck out, disappeared with the striking out of that appeal.'
In this case as pointed out by Mr Makani, learned Counsel it is apparent from the record that the issue of jurisdiction and competence of the application before the learned single judge was not E raised at the hearing of the application. It seems clear to us that the complaint before the learned single judge was that the application was incompetent because Rule 8 was not cited in the heading of the notice of motion. On this, the learned single judge ruled that, that did not affect the validity of the application. We can see no ground for faulting the judge on that. Otherwise the learned single F judge did not have the benefit of hearing the views of the learned Counsel for either of the parties on the issue of jurisdiction. For that reason, the application was determined without addressing the question of jurisdiction as such. However, considering the fact that the Court's proceedings are G governed by the Court of Appeal Rules, 1979, it is our view that it does not matter whether the issue of jurisdiction was raised at the hearing of the application before the single judge. We think the matter was properly raised at the hearing of this reference before us in order to ensure that the mandatory requirement of the rules regarding the processing of appeals was complied with. As it turned out in this case, the notice of appeal, a necessary requirement under Rule 76 which was lacking would not have come to light if the matter was not raised in the Court. For that reason, and with due respect, we do not accept Mr Makani's submission that there was an implied application for extension of time to file notice of appeal. This is because, in situations such as

this where, Rule 76 of the Court's rules explicitly provides for notice of appeal as a necessary A condition, compliance with it cannot be attained by implication. It has to be done in fact and nothing short of that. In here, the application before the learned single judge was filed before an application for extension of time to give notice of appeal had been made in the High Court. This fact apparently B the learned single judge realised when he granted an extension of fourteen days in which to file notice of appeal, a relief which was not sought in the application. In the circumstances, we do not think that Mr Makani'sassertion on implied notice of appeal does in any way improve the applicant's case. On the other hand, even if Mr Makani's submission that there was an implied application for C extension of time in which to file notice of appeal is accepted, we think such an implied application, if any, would still be incompetent. The reason is that in terms of the provisions of s 11(1) of the Appellate Jurisdiction Act 1979 and Rule 8 of the Court's Rules, this Court and the High Court have D concurrent jurisdiction to grant extension of time to give notice of appeal. However, under Rule 44, the application for extension of time shall in the first instance be made to the High Court. In the instant case, no such application had been made to the High Court. Therefore, the matter before E the learned single judge was incompetent for non-compliance with Rule 44. That is, the Court had no jurisdiction to entertain the application which had not satisfied the conditions set out under this rule. In somewhat similar circumstances, in the case of The Director of Public Prosecutions v  F Priska Asha Kwambaza (2) this Court held that as the conditions under Rule 44 were not fulfilled, the learned single judge wrongly assumed jurisdiction. In this case as the application was decided without addressing the issue of jurisdiction, with respect we think if the learned single judge had done so, he would have come to this conclusion. G
Lack of jurisdiction alone would be sufficient to dispose of this reference. But Mr Mwale, learned Counsel had gone further in his submission before us. He contended that in order for the Court to exercise its discretion judiciously under Rule 8 to enlarge time to appeal sufficient reason should be H shown to explain the delay. In this case, Mr Mwale urged, no reason let alone sufficient reason, had been shown by the applicant to explain the delay. Mr Mwale went on in his submission, the distinction drawn by the learned single judge between technical and actual delay did not in his view, amount to sufficient reason. The delay in instituting the ap- I

A peal and seeking extension of time for filing notice of appeal was due to the negligence of the applicant's Counsel which is no sufficient reason, Mr Mwale emphasized. Mr Werema learned Senior State Attorney also conceded that no sufficient reason had been advanced to explain the delay.
B With regard to the merits of the application, Mr Makani ardently maintained that there was no negligence in connection with the application for extension of time either before the single judge of this Court or in the High Court in Mwanza. He said, it was in connection with Civil Appeal No 43 of 1996 in this Court to which negligence could be attributed on account of non-inclusion of an C extracted order. Following the Court's decision in striking out Civil Appeal No 43 of 1996, Mr Makani submitted, the applicant promptly took action. That is, the application in the High Court at Mwanza and then the application before the single judge, the subject of this reference were filed, Mr Makani D observed.
We have given anxious consideration to these submissions on whether sufficient reason had been given to warrant the extension of time. It is common knowledge that it is a matter of discretion on E the part of the Court to extend the time in which to file the appeal or notice of appeal. That such discretion is to be exercised judicially is also elementary. It is however, to be observed that in the exercise of such power, the requisite condition is that sufficient reason is to be given. Dealing with the application for extension of time in which to file the appeal the learned single judge held that the F delay was technical and that the applicant acted immediately after the pronouncement of the ruling of the Court striking out the appeal. Apparently, in an endeavour to comply with the direction of this Court to institute the appeal afresh by an appropriate application before the High Court, the first respondent filed a wrong application in the High Court at Mwanza. That is, he filed an application for G extension of time to appeal to this Court. That was, as correctly stated by Mr Mwale, a wrong application. It is common ground that an application of that nature is filed in this Court. The appropriate application envisaged to be filed in the High Court was an application for extension of time in which to file notice of appeal. Once that application is granted in the High Court, then the H application for extension of time to appeal before a single judge would be filed. As it happened, the application to the single judge of this Court was filed before the appropriate application was made before the High Court and granted. Thus, the delay was caused by the wrong application filed in the I High Court. This, we are con-

vinced, is a clear manifestation of negligence on the part of Counsel. In our view, such negligence A on the part of the Counsel for the first respondent goes to the very root of the matter, it cannot be regarded as a mere slip. On a number of occasions, this Court has held that negligence on the part of Counsel is not sufficient reason for extending time under Rule 8. See the following among others: Maulidi Juma v Abdalla Juma (3), Kiqhoma Ali Malima v Abas Yusuf Mwingamno (4). The Court of B Appeal for Eastern Africa had also dealt with this aspect in the case of Shah Hemraj Bharmas and Brothers v Santosh Kumar w/o J N Bhola (5).
Applying the principle enunciated in these cases to the instant case, we are with respect, satisfied C that the negligence on the part of the Counsel for the first respondent in filing wrong applications which caused the delay cannot constitute sufficient reason. In our understanding, what featured prominently before the learned single judge was the fact that the wrong application to the High Court D was filed immediately after this Court struck out the appeal and that the delay in filing the application which was before him was technical. Had the learned single judge taken into account the fact that it was the Counsel's act of filing wrong applications which caused the delay, we think he would well have come to a different decision. E
In the result, and for the foregoing reasons we are resolutely of the view that the learned single judge dealt with an incompetent application which did not comply with the Court's Rules 44 and 71. Consequently, the proceedings before the learned single judge were a nullity. Accordingly, we allow the reference and set aside the order of the learned single judge dated 21 May 1997. The applicant F is awarded costs for this reference.

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