Kyando J:
This is an appeal from the decision of the Housing Appeals Tribunal granting an application by the respondent herein leave to lodge a notice of appeal and an appeal with the Tribunal out of time.
The facts of the matter are that the Aga Khan Education Services, the respondents G herein, filed an application in the Housing Tribunal of Dar es Salaam Region seeking the eviction of Mrs Kanchan Venesh Parekh, the appellant, from their house situated at Upanga, Dar es Salaam. The application was unsuccessful, in terms of the decision of H the Regional Tribunal rendered on 15 November 1990. It (the decision) was apparently given or delivered in the absence of the parties. The respondent's advocate became aware of it on 29 November 1990. On becoming so aware he applied for the necessary documents from the Regional Tribunal to prepare an appeal to the Housing Appeals I Tribunal. On 23 February 1991 has lodged with the latter Tribunal and application for
leave for lodging a notice of appeal and for appealing out of time. The Tribunal as A indicated, granted the application, but the appellant was dissatisfied with that decision. She therefore brought this appeal to this court.
She is represented by Mr Kinguji, learned advocate, while the respondents are B represented by Mr Rutabingwa of the Tanzania Legal Corporation.
Rule 7 of the Housing Appeals Tribunal (Appeals) Rules, 1987 provides:
`7(1) Any party who desires to appeal to the Appeals Tribunal shall lodge a written notice in quadruple C with the Registrar or the Chairman of the Tribunal which passed the decision, order or determination appealed against.
(2) Every notice shall be lodged within fourteen (14) days of the date of the decision against which it is desired to appeal.' D
And Rule 5 provides as follows:
`5. No appeal to the Housing Appeals Tribunal from an order, decision or determination of Regional Housing Tribunal shall be made later than forty five (45) days from the date of the order, decision or E determination appealed from.
Provided that the Appeals Tribunal may, for good and sufficient cause grant any party leave to appeal out of time. When any such leave is granted, the Appeals Tribunal shall specify the date by which the appeal shall be lodged.' F
In the instant case, the Appeals Tribunal observed that the applicant's advocate should have filed the notice on 29 November 1990 when he learned about the decision of the Regional Housing Tribunal. If he did so, he would have been in time, for 29 November 1990 was the last day in computing the period of 14 days from the date of the decision of G the Regional Tribunal.
At p 2--3 of the cyclostyled ruling of the Appeals Tribunal it is stated:
`Both gentlemen members found no good cause for delaying to file notice of appeal immediately after H learning about the judgment on 29.11.90. Since notice of appeal is not accompanied by anything, there was no reason for waiting until he received a copy of the judgment.
Since no appeal can be accepted without notice of appeal being filed in time the second prayer for I leave to appeal out of time must also fail.
Indeed preparation of notice does not necessarily have to wait until you get a copy of judgment. It is A simply a notice that you have not been satisfied with the decision and that you are intending to appeal.
If after receiving copy of judgment you find there are no reasons or chances of success then you can withdraw it. Therefore when the applicant's advocate learned about the judgment on 29.11.90 which B was the last day for notice of appeal he would have filed the same on the same day or thereabout and not to sit down ideal till 23.2.91.'
All the above seems to me to be alright. But in spite of that the Tribunal, as shown, granted the application. In doing so it said it wanted to consider an important point of law C discerned in the proposed petition of appeal. The question which arises is whether the Tribunal had powers to extend time, after having found that both the notice and the appeal were out of time. Mr Kinguji says in his written submissions that the Tribunal had no such power. Mr Rutabingwa, on the other hand, says it had. Kinguji relies on Rule 7 of D the Housing Appeals Tribunal (Appeals) Rules, while Mr Rutabingwa relies on Rule 5.
In my view, the two rules should not be mixed up; they provide for different things altogether. While Rule 5 deals with appeals, Rule 7 deals with notice to appeal. Now E looking at the two rules closely, it is clear that while Rule 5 has a proviso, empowering the Appeals Tribunal to enlarge time for lodging of an appeal, Rule 7 which deals with notice has no provision for extension of time for lodging of a notice. In the present case, not only was the appeal out of time, the notice too was out of time. And whilst the F Tribunal could under Rule 5 extend the period for lodging the appeal it is no where provided that it could as well extend the period for lodging a notice. (And the Tribunal correctly notes that without a notice there cannot be an appeal.) The Tribunal acted without powers, and erred, therefore when it concluded in its decision: G
`In view of this applicant's application for leave to file notice of appeal out of time is hereby granted. He must do so within 14 days from today. ...' H
As amply shown, it had no power to enlarge the time for giving notice.
But besides the above point, did the Tribunal act in accordance with the law in granting the application on the ground that there was an important point of law in the intended I appeal only? Rule 6 of the Housing Appeals Tribunal (Appeals) Rules, provides:
A '6. An application for leave to appeal out of time to the Appeals Tribunal shall be in writing supported by an affidavit setting out the reasons why a petition of appeal was not or cannot be filed within forty-five days after the date of the decision or order against which it is desired to appeal, and shall be accompanied by the petition of B appeal or shall set out the grounds of objection to the decision or order.'
Mr Kinguji in his submissions argues that the Tribunal had no right to consider the petition: he says it should only have concerned itself with the reasons why the respondent failed to appeal in time. In Creply, Mr Rutabingwa contends that the requirement of a petition of appeal by Rule 6 implies that the Tribunal is supposed to look into the likelihood of the appeal succeeding 'on precisely whether there are grounds raised which may invite intervention of the Appeals Tribunal'. In support of this he D sites the decision of Mwalusanya J in Samson Kashosha Gabba v Charles Kingongo Gabba (1) and quotes the following passage from the judgment of the learned Judge:
'... one of the most important points to consider whether or not to allow an appeal out of time is the likelihood of E success of the intended appeal. The points raised in the intended memorandum of appeal as well as the judgment of the trial court have to be considered to see if the intended appeal has any chances of success. While reasons for the delay in appealing in time are relevant, yet those are not the only material consideration in those matters.'
F Rule 6 specifically requires that the reasons for the delay must be stated in the affidavit in support of an application for leave to appeal out of time. As for chances of success, these are provided for only inferentially by Rule 6, by requiring that a copy of the intended petition should accompany the application. It follows therefore that under the Housing Appeals Tribunal (Appeals) G Rules, the important considerations are the reasons why a petition of appeal was not or cannot be filed within time. Not only this, the chances of success cannot by themselves be, in my view, the sole ground for granting an application for leave to appeal out of time. All the reasons advanced by H the respondents in this case were rejected by the Appeals Tribunal. So was it justified in granting it on the only ground that a point of law was involved in the case? In my view, it was not. That ground could only have been given considera tion of if there were also sound reasons why the I applicant for extension of time could not file his appeal in time.
But even if Mr Rutabingwa were right in the submissions he makes, thinking that chances of A success is the most important consideration in determining an application for leave to appeal out of time was the decision of the Appeals Tribunal in this case based on that consideration? Following is what the Tribunal said: B
'But in going through the petition together with the record to see whether if the application for appeal out of time is allowed there are overwhelming chances of success I have discovered that there is an important point of law involved, that is whether the respondent (appellant herein) is a protected tenant or a tenant at will. The C respondent's husband was employed by the appellants as a teacher whereby he was also offered accommodation on monthly rent by being deducted 15% of his salary. When he died his wife (respondent) continued to live there although not employed by the applicants. The applicants want her out to give room for their employees. She is refusing to vacate pleading protection as a protected tenant. The applicants are saying she is D not a protected tenant and therefore not entitled to the protections of protected tenants.
It will be in the interests of justice if this application is granted so that this issue can properly be dealt with.'
As can be seen, while the tribunal makes references to overwhelming chances of success, its E decision to grant the application does not rest on that ground. It rests instead on the consideration that there is an important point of law involved in the intended appeal and that it will be in the interests of justice for the point to be properly dealt with by it, ie the Appeals Tribunal. There is no F finding at all by the Tribunal that the intended appeal has overwhelming chances of success either on the point it wanted to properly deal with or on any other ground. The consideration relied on by Mr Rutabingwa in his submissions therefore was not the consideration on which the decision of the Tribunal was based. G
In short, the Appeals Tribunal in this matter did not act within the ambit of the provisions of Rule 6 of the Housing Appeals Tribunal (Appeals) Rules in considering and determining the application for leave to appeal out of time. This was an error on its part for it took into account matters not provided for by law in granting the application. H
Finally, Mr Rutabingwa submits that he was, after all, in time in lodging the notice and the appeal. I do not think I should treat such submissions with any seriousness here. He is I the one who went before the Appeals Tribunal pleading that he was out of time in filing notice and his appeal and sought leave to file them out of
time. Today he says he was in time! Why did he not say so before the Appeals Tribunal? A The Tribunal agreed with him and held that he was out of time: he cannot now turn round and start submitting that he was in time. I reject such submissions by Mr Rutabingwa.
I held in the result, that the Appeals Tribunal had no power to extend the time for lodging B notice of appeal in this matter. As an appeal to the Appeals Tribunal has to be preceded by a notice of intention to appeal, no prayer or valid appeal could have been lodged in the matter in the absence of such notice. Finally, the Tribunal based its decision in granting the application for leave to appeal on wrong considerations. For C these reasons, this appeal succeeds. It is allowed and the appellant is awarded the costs of the appeal.
E
