Malesa v Shah and Another (Order of the Court) (Civil Reference No. 1 of 2015) [2016] TZCA 3; (25 October 2016);

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IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA

(CORAM: RUTAKANGWA, J.A.,MASSATI, J.A., And MUGASHA, J.A.)

CIVIL REFERENCE NO. 1 OF 2015

CHARLES MALESA.………………………………......……. APPLICANT

VERSUS

1. PRIVIN SHAH

2. S.L. ISANG AUCTION MART & COURT BROKER @ BINGEA WA MINADA........RESPONDENTS

(Application for review of the judgment of the Court of Appeal of Tanzania at Mwanza)

(Hon. Lubuva, Mroso And Rutakangwa, JJJ.A.)

dated the 16th day of March, 2007 in

Criminal Appeal No. 58 of 2005

……….

ORDER OF THE COURT

RUTAKANGWA, J.A.:

This matter was placed for hearing of an application for reference. At the hearing, Mr. Mathew Nkanda, learned counsel appeared for the applicant and Mr. Salum Magongo learned counsel appeared for the respondents.

Mr. Magongo reminded the Court of the existence of a notice of preliminary objection which he had earlier on filed. The said notice reads:-

“That the reference is incompetent for being filed out of time.”

When that was drawn to Mr. Nkanda’s attention, he readily conceded, and we think, rightly so.

An application for reference is sanctioned under Rule 62(1) of the Court of Appeal Rules, 2005 (the Rules). The Rule enjoins a party who seeks to apply for reference to do so informally by a letter to the Registrar, but this must be within seven days after the decision of the single justice. In the present case there is no dispute that the decision of Justice Mussa was handed down on 8th June, 2015, but the application was filed on 16/6/2015, which happened to be the 8th day. So the preliminary objection is well place, and we uphold it.

Accordingly as the application is incompetent it is struck out. We make no order as to costs.

DATED at MWANZA this 26th day of October, 2016.

E.M.K. RUTAKANGWA

JUSTICE OF APPEAL

S.A. MASSATI

JUSTICE OF APPEAL

S.E.A. MUGASHA

JUSTICE OF APPEAL

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

P. W. BAMPIKYA

SENIOR DEPUTY REGISTRAR

COURT OF APPEAL