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National Housing Corporation v Shekhe (Civil Application No. 134 of 2005) [2006] TZCA 51 (10 April 2006)

IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM
CIVIL APPLICATION NO. 134 OF 2005

NATIONAL HOUSING CORPORATION …………………… APPLICANT
VERSUS
MISS LAZIM GHODU SHEKHE …………………………... RESPONDENT

(Application to strike out Notice of Appeal from the decision of the High Court of Tanzania at Dar es Salaam)

(Moshi, J.)
dated the 6th day of June, 1996
in
Civil Appeal No. 15 of 1995

5/4/2006 & 10/4/2006
-----------
R U L I N G

 KAJI, J.A.:

         By a notice of motion filed under Rule 82 of the Court of Appeal Rules, 1979, the applicant, the National Housing Corporation, is moving the Court for an order that the notice of appeal filed on 10.6.1996 by the respondent Miss Lazim Ghodu Shekhe be struck out on the following grounds:
i)      
That no application for leave to appeal to this Court has been filed as per Rule 43 (b) of the Court of Appeal Rules, 1979, after refusal of the same by the High Court of Tanzania at Mtwara in Miscellaneous Civil Application No. 10 of 1996.
ii)     
That no speedy steps have been taken by the respondent to finalise process for the appeal to be heard.
         The facts of the case which were not controverted by the respondent are as follows:-
The applicant was the successful party in Civil Appeal No. 15 of 1995 in the High Court of Tanzania at Mtwara. Judgment was delivered on 6.6.1996. The respondent was dissatisfied. On 10.6.1996 the respondent filed a notice of appeal. Thereafter she applied for leave to appeal to this Court, apparently under Section 5 (1) (c) of the Appellate Jurisdiction Act, 1979.
         On 16.7.1997 the application for leave to appeal to this Court was dismissed for want of merit. The respondent was dissatisfied. Under Rule 43 (b) of the Court Rules, 1979, she was required to apply for the same in this Court within fourteen days of the date of delivery of the ruling. The respondent did not do so and has not done so even up to the date of hearing this application on 5.4.2006. She has also not applied for extension of time to file the same. Hence this application to strike out the notice of appeal under Rule 82 of the Court of Appeal Rules, 1979.

The respondentfs explanation is that, she has failed to apply for the same to this Court because she has not been supplied with copies of proceedings, judgment, decree and a copy of the ruling in Miscellaneous Civil Application No. 10 of 1996 despite her efforts to obtain the same.
         As indicated earlier, the respondentfs application for leave to appeal to this Court was refused on 16.7.1997. The respondent who was dissatisfied was required to apply to this Court within fourteen days of the date of delivery of the ruling as per Rule 43 (b) of the Court of Appeal Rules, 1979. However she would only do so after obtaining a copy of the judgment and a copy of the ruling of the High Court refusing her application which should accompany the application as provided for under Rule 46 (3) of the Court of Appeal Rules, 1979. The respondent contended that she failed to lodge her application in this Court because she has not yet been supplied with a copy of the judgment and a copy of the ruling. She said she applied for the same on a date and month she could not remember. She said she had copies which she had misplaced. She stated further that she remembered to have sent copies of the same to the applicant.

The Law of Evidence is very clear on this. gHe who alleges must proveh. The respondent says she wrote letters to the High Court Mtwara applying for a copy of judgment and a copy of the ruling. She could not show copies of the same alleging she had misplaced them. She said she could not remember the date and month when she wrote them. She further alleged that she remembered to have sent copies to the applicant but she could not substantiate it. MS Ndigwako Joel, learned Legal Officer for the applicant denied the applicant to have been served with copies of the said letters. In view of this I am far from being persuaded that the respondent applied for a copy of judgment and a copy of the ruling for the purpose of applying to this Court for leave to appeal, and that she was not supplied with the same as a result of which she failed to file her application in this Court. It is a pity that she has slept on her right for nine years without doing anything useful in obtaining the leave required by Section 5 (1) (c) of the Appellate Jurisdiction Act, 1979 and Rule 43 (b) of the Court of Appeal Rules, 1979. It would appear the respondent is not serious enough in prosecuting the intended appeal. She also talked of a letter applying for copies of proceeding, judgment and decree in Civil Appeal No. 15 of 1995 of the High Court at Mtwara. She could not produce a copy. She produced a hand written copy of a reminder. The applicant denied to have been served with either of them. Obtaining leave to appeal is an essential requirement in prosecuting the intended appeal in this case. Since the respondent has failed to apply for leave to lodge her appeal in this Court for the past nine years, and since there is no application for extension of time in which to file the same, I agree with the applicantfs Legal Officer that the respondent has failed to take essential steps in prosecuting the intended appeal. It is upon the above reasons that under Rule 82 of the Court of Appeal Rules, 1979 I do hereby strike out the notice of appeal filed by the respondent on 10.6.1996. There is no order as to costs for the reasons stated by the applicantfs Legal Officer at the hearing of the application.
         DATED at DAR ES SALAAM this 10th day of April, 2006.
S.N. KAJI
JUSTICE OF APPEAL

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



( S.M.RUMANYIKA )
DEPUTY REGISTRAR

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