The applicant was dissatisfied with a ruling of the High Court, Ihema, J., which was delivered on 25th June, 2003. It intended to appeal it to this Court. However, it did not file the notice of appeal and the application for leave to
appeal in time. The High Court had sat in a reference from a decision in taxation proceedings. The applicant, therefore, applied
to the High Court for enlargement of time to file the notice of appeal and the application for leave to appeal. Both prayers were
refused by the High Court, Ihema, J., on 12th September, 2003. It has now come to this Court applying for the same orders. Mr. Rweyongeza, learned advocate, appeared for the applicant
and learned advocate Mr. Msemwa appeared for the respondents.
In his affidavit in support of the Notice of Motion, Mr. Rweyongeza says that after
the ruling of 12th September, 2003 gthe applicant had up to 12th November, 2003 to challengeh it. He proceeded to say that he wrote to court to apply for a copy of the ruling and explained
how the High Court registry delayed in supplying it. On 28th November, 2003 he was supplied with the documents he needed. By then it was beyond 12th November, 2003 which he believed was the deadline for gchallengingh the ruling, presumably by filing the present application.
He believed he was therefore prevented by circumstances beyond his control to file this Notice of Motion.
Mr. Msemwa filed an affidavit in reply, or what he termed counter-affidavit, in which
he disputed the reasons given in Mr. Rweyongezafs affidavit by saying that the applicant had not demonstrated gany sufficient
cause for delay in filing notice of appeal and application for leave to appeal (against) the two rulings dated 25/6/2003 and 12/9/2003
respectivelyh. The delay really was not in filing the notice of appeal or to apply for leave to appeal but in applying for
extension of time.
In his submissions in Court Mr. Rweyongeza has clarified (without asking for a suitable
correction of the Notice of Motion) that the ruling intended to be impugned on appeal is the one which is dated 25th June, 2003 and not that which is dated 12th September, 2003, as wrongly reflected on the Notice of Motion. As mentioned earlier, no notice of intention to appeal or an application
for leave to appeal were filed in time. When the applicant applied to the High Court for extension of time, leave to do so out of
time was refused on 12th September, 2003. It is apparent that Mr. Rweyongeza thought he was also to appeal against that ruling; that was the reason he said
in paragraph 5 of his affidavit ?
5.
That, the applicant had up to 12th November, 2003 to challenge the said ruling (obviously that of 12th September, 2003 which is mentioned in preceding paragraph 4 of the affidavit).
Now, from 12th September, 2003 to 12th November, 2003 is a period of sixty days or so, which is the period within which to appeal. But what Mr. Rweyongeza was to do was
to apply to this Court for the same reliefs he had sought in the High Court in an application under Section 11 (1) of the Appellate
Jurisdiction Act, 1979 and were refused. Such application to the Court is governed by Rule 8 of the Court Rules. Rule 8 does not
indicate the time limit within which an application to this Court should be made after extension of time has been refused by the
High Court and I am not aware of any other rule in the Court Rules which fixes the time limit. Neither advocate adverted to this
point and I am thus unassisted by their submissions. Rule 43 (b) fixes the time limit of 14 days for an application to be made to
this Court for leave to appeal after such leave has been refused by the High Court. That provision is not relevant in applications
for extension of time within which to apply either for filing a notice of appeal or for leave to appeal. One, then, has to resort
to case law, if any. But I could not lay my hands on any such decision of this Court. All I can say, therefore is that a party who
wishes to make an application to this Court after a similar one has been made to the High Court and refused, must do so within reasonable
time after the refusal by the High Court. He cannot be free to take his time to do so.
In the case of the ruling of the High Court dated 12th September, 2003 I accept that the applicant needed the ruling of the High Court to accompany his Notice of Motion and a supporting
affidavit to this Court. I am also satisfied that its advocate acted diligently but was held back by the High Court registry which
did not supply in time to the advocate the required documents. I therefore find there was sufficient cause for the delay to apply
to this Court. But that is not the end of the problems of the applicant. The affidavit of Mr. Rweyongeza said precious little to
explain the delay in applying to the High Court under Section 11 (1) of the Appellate Jurisdiction Act, 1979 to enable this Court
to reach a conclusion that the High Court erred in its ruling of 12th September, 2003 in which it found insufficient grounds for the applicantfs delay to seek extension of time to file a notice
of appeal and to apply for leave to appeal. In other words, I have no basis for faulting the High Court which dismissed the applicantfs
application on 12th September, 2003.
Paragraphs 2 and 4 of Mr. Rweyongezafs affidavit suggest that he acted promptly
after he was instructed by the applicant, although he does not disclose when he was so instructed. But there is no information at
all as to what the applicantfs previous advocates did after the High Court ruling of 25th June, 2003.
For the above reasons I have to dismiss this application with costs
DATED AT DAR ES SALAAM this 18th day of March, 2005.
.RTF of original document