Court name
Court of Appeal of Tanzania
Case number
Civil Application 1 of 2005

Kirumbuyo & Another vs Tanzania Telecommunication Co. Ltd (Civil Application 1 of 2005) [2006] TZCA 53 (18 April 2006);

Media neutral citation
[2006] TZCA 53

IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM

CIVIL APPLICATION NO. 1 OF 2005

1. THOMAS DAVID KIRUMBUYO ]
2. ABBAS S. MHANGA ] cccccccc.. APPLICANTS

VERSUS

TANZANIA TELECOMMUNICATION CO. LTD. ccc RESPONDENT

(Application for leave to appeal to the Court of Appeal
of Tanzania from the decision of the High Court of Tanzania at Dar es Salaam)

(Mlay, J.)

dated the 11th day of November, 2004
in
Miscellaneous Civil Application No. 142 of 1999

6 & 24 April 2006

-----------
R U L I N G

LUBUVA, J.A.:

         Before me is an application in which the applicants, Thomas David Kirumbuyo, and Abbas S. Mhanga, are seeking from the Court orders for:
1.      

Extension of time in which to apply for leave to appeal and

2.      

Leave to appeal

         The hearing of the application on its merits could not proceed as scheduled because counsel for the respondent, Tanzania Telecommunication Co. Ltd., raised preliminary objection under the provisions of rule 100 of the Court Rules, 1979 notice of which had been filed. The preliminary objection was premised on the ground that the application violates rule 44.
         Mr. Swai, learned counsel, holding brief for Mr. Mgullu, learned counsel, who was reported ill, for the respondent, argued the preliminary objection. The essence of submission by Mr. Swai was to the following effect. That in terms of the provisions of section 11 (1) of the Appellate Jurisdiction Act, 1979 and rule 8 of the Court Rules, 1979, the High Court and the Court of Appeal have concurrent jurisdiction to extend time for making application for leave to appeal. However, under rule 44, whenever application may be made either to the Court or to the High Court, it shall in the first instance be made to the High Court. In this case, the application was not first made to the High Court. In this case, what happened was that the application sought was for leave to appeal and not for extension of time. The application for leave to appeal being hopelessly out of time, it was dismissed.
         In the circumstances, counsel further submitted, the application for extension of time being made to the Court, without in the first instance having been made to the High Court is incompetent, it should be struck out. He referred to the decision of this Court in William Shija v. Fortunatus Masha (1997) TLR 213.
         In this application, as apparently as was the case before the High Court, the applicants appeared in person. Mr. Kirumbuyo, the first applicant, on behalf of the second applicant, read out written notes in reply to the preliminary objection. He tendered in Court the written submissions. The gravamen of his submission, was that with regard to the application for leave to appeal, this was, as he put it, a gsecond biteh in relation to the first bite which in essence is the first application for leave to appeal to the Court of Appeal.h This application was refused in the High Court (Mlay, J.) on 11.11.2004. That, in this matter which arises from the decision of Ihema, J. in Misc. Civil Application No. 142 of 1999, leave to appeal was not required under the provisions of section 5 (1) (a) of the Appellate Jurisdiction Act, 1979. Furthermore, as the applicants are laymen, the Court should not strictly adhere to the technicalities of the rules of procedure.
         From the outset, and without prejudice, it is to be observed that the learned judge having upheld the preliminary objection that the application was hopelessly out of time, and therefore incompetent, should have proceeded to strike it out. Dismissing the application as happened in this case, presupposes that the application was competent and that it was heard on its merits.
         This, notwithstanding, I shall proceed to deal with the submission on the preliminary objection as presented. There can be no doubt that the High Court and the Court of Appeal have concurrent jurisdiction in matters relating to application for leave to appeal or extension of time in which to appeal. This is provided for under section 11 (1) of the Appellate Jurisdiction Act, 1979 and rule 8 of the Court Rules, 1979. How the concurrent jurisdiction is invoked in relation to the High Court and the Court of Appeal, rule 44 come into play. In part, it provides:
44. Wherever application may be made either to the Court or to the High Court, it shall in the first instance be made to the High Court c (emphasis provided)
         From this provision, the position of the law is clear and unambiguous. The application for leave to appeal or extension of time in which to appeal shall first be made to the High Court. Thereafter, and as provided under rule 43 (b), where application for leave to appeal has been made to the High Court and refused, the application shall be made to the Court within fourteen days of that refusal.
         In this case, was the application for leave to appeal refused as urged by Mr. Kirumbuyo. From the ruling of the High Court in respect of which the gsecond biteh is sought, the grounds for the dismissal of the application were such that it cannot be said affirmatively that the application was refused. According to the ruling, the learned judge held that the application was hopelessly out of time, it was incompetent. Hence the preliminary objection was sustained resulting in the application being dismissed. The application for leave to appeal was therefore not heard on merit. In that situation, it is doubtful in my view that the application can be said to have been refused within the meaning of the provision of rule 43 (b). It follows therefore that for an application which in effect was not heard at all on merit, it is inconceivable that the application to this Court after its dismissal as described, by the learned judge can be labelled as a gsecond biteh to the Court. There was no first bite after all in the first place, when it ended at the preliminary stage.
         In this light, I am increasingly of the view that the application for leave is not competent to be entertained in this Court. It ought first to be heard and determined in the High Court. This was not the case.
         On the other hand, there is the other order sought for extension of time in which to apply for leave. The situation in this regard is also bleak. The application in the High Court was for leave to appeal and not for extension of time in which to appeal. As urged by Mr. Swai, it follows as day follows night that the application in the instant case for extension of time has been lodged in this Court without, in the first instance being made to the High Court. This is contrary to the provisions of rule 44. The application in this regard is incompetent. This ground in support of the preliminary objection is, like in the first ground, well founded.
         Finally, I wish briefly to comment on one point which was raised by Mr. Kirumbuyo. That is that because the applicants are laymen, the Court should not apply procedural technicalities stringently against them. It hardly needs to be over emphasized that this Court is a creature of statutes. Its business as an appellate court is regulated by the Appellate Jurisdiction Act, 1979 and the Court Rules, 1979.
         Because of the central role of the rules of procedure in the administration of justice, on a number of occasions, this Court has referred to the words of Collins RM in the Matter of an arbitration between Coles And Ravenshear (1907) 1 KB 1 in which the work of the rules of procedure were likened to that of hand maid rather than mistress. For this reason, in order to ensure that the machinery of administering justice is not hamphered, the court is duty bound to apply the rules at all times stringently. There is no exception provided under the rules for a relaxed application when laymen are involved as is the case here. All the more so, when it involves non-compliance with the rules on aspects which go to the root of the matter. Failure to apply for leave to appeal within the prescribed time under rule 43 (a) as happened in this case goes to the root of the matter. The consequences are fatal. I cannot therefore entertain the applicantsf plea for lenience in applying the rules upon the fact that they are laymen.
         It may as well be pointed out at this juncture that notwithstanding the fact that the applicants are laymen, with proper advice and a modicum of diligence, the proper course would have been followed. After the application for leave to appeal was unsuccessful in the High Court on account of the matter being hopelessly out of time, the applicants should have again gone to the High Court to seek extension of time in which to apply for leave to appeal. Upon sufficient reason being shown, the High Court could possibly exercise its discretion to grant the application. This would have paved the way for the application for leave to appeal to be heard on merit. Instead, the applicants have came to this Court. That was not proper.
         For these reasons, the preliminary objection is sustained.
         The application being incompetent is accordingly struck out with costs.
        

DATED at DAR ES SALAAM this 18th day of April, 2006.

D.Z. LUBUVA
JUSTICE OF APPEAL

         I certify that this is a true copy of the original.

( S.M. RUMANYIKA )
DEPUTY REGISTRAR