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Munema v Munema (Civil Application No. 122 of 2005) [2006] TZCA 49 (4 April 2006)

.RTF of original document

IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM
CIVIL APPLICATION NO. 122 OF 2005

FARES MUNEMA ………………………………………… APPLICANT
VERSUS
ASHA MUNEMA ………………………………………. RESPONDENT

(Application for extension of time from the decision of the Court of Appeal of Tanzania at Dar es Salaam)

(Lubuva, J.A.)
dated the 11th day of August, 2004
in
Civil Application No. 9 of 2003

Date hearing of the matter was concluded :       29th March, 2006
Date Ruling was delivered:                                  4th April, 2006
---------
R U L I N G

MSOFFE, J.A.:

         In Civil Application No. 88/1999 the applicant was seeking leave to appeal to the court from the decision of the High Court at Dar-es-Salaam in (PC) Civil Appeal No. 80/1995. When the application was called on for hearing on 3/2/2003 he was absent. Samatta, C.J. as a single judge of the Court dismissed the application under rule 58 (1) of the Court Rules, 1979. In Civil Application No. 9/2003 the applicant was moving the Court for an order that Civil Application No. 88/1999 be restored in terms of rule 58 (3). On 11/8/2004 Lubuva, J.A. struck out the application mainly because the affidavit in support of the application did not indicate where it was sworn. The applicant wishes to refer the decision to the Court under rule 57 (1) (b) so that it may be gvaried, discharged or reversedh. He realizes however, that under the above sub-rule the reference was required to be filed within seven days after the decision of the single judge, and since he did not do so he is time barred. On 23/8/2005 he accordingly filed this application seeking extension of time to file a reference against the above decision.
         It is important, at this juncture, to quote the applicantfs averments under paragraphs 3 and 4 of the affidavit in support of the application. The paragraphs read as follows:-
g3. That being a layman in law I believed on what the commissioner for oaths certified and since he was a Dar-es-Salaam based lawyer, his official stamps carrying the words Dar-es-Salaam to me was satisfactory enough.
4. That even if there was defect in the jurat of attestation it was not proper for the judge to dismiss the application in its entirety but ought to have ordered for amendment of the affidavit.h
         At the hearing of the application the applicant kept on repeating and reiterating the points mentioned in the above paragraphs. With respect, the applicant appears to have lost sight of the spirit behind an application for enlargement of time in view of the following points. One, the points canvassed in the above affidavit are of a nature that, I think, they could have best been taken up in the intended reference and not in the present application. Two, as correctly argued by Mr. Msemwa, learned advocate for the respondent, the applicant has not advanced a reason or reasons to explain away the delay in filing the intended reference within time. It will, therefore, follow that no reason(s) let alone sufficient reason(s) has/have been shown to warrant the exercise of this Courtfs discretionary power under rule 8.
         In the event, for the foregoing reasons, the application has no merit. It is dismissed. Since Mr. Msemwa did not apply for costs I will not make an order for costs.

         DATED at DAR ES SALAAM this 4th day of April, 2006.

J. H. MSOFFE
JUSTICE OF APPEAL



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


(S. M,. RUMANYIKA)
DEPUTY REGISTRAR

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