20021203 TZHC Mbeya

J .. - ~- ~~I ~~~~ .-.. ~/ ~ Su IN 'l'i-lE IUGH COURT OF'. .. TAt"IZANIA 1'.tr. :tt.JIWA DC CIVIL APPEAL NO~: 32 OF 1999 (ORIGINAL tIBE"iA DI.STRICT COURT CIVIL· CASE N0.:.91/95) \ Ao Ko MWAEBONA AflPELLANT '·VERSUS 'l'ANZANIA ELECTRICITY SUFFLY COMP.ANY LIMITED 0000000000•0• RESPONDENT RULING Tb.e respondent partiallysucceeded in his suit against the applicant for recovery··of damages arising from power disruption the respondent cor1'.3idered to be \:lrongfulc ·I'he respondent app·ealed and· he found favour with the High Court \,1l:lich awarded him damages in the swn of .Shs.5,500,000,00. 'I'he applicant did not· appeal against· the judgment of this· Court which 'i-Jas delivered on the 14th day of September, 2001. Iri• the meantime it has occurred. to the applicant that the decision of the trial court Eind that of this court in its appellate j·irisdiction were made · per: incu±-'ij,un because at the time the· appJ.icant was adjudged liable in damages she wai.'·' al±'eady :k specified public corporation in ter:'!ls of Governinent Notice 543 of 19970 So the purpose of this application is f'.)r enlargement of time· within which to lodge an application for review. 'l'he application is supi:iorted by ·the affidavit of one Victor Nemes Massawe; the the".l. Acting Recional Manager of the applicant in Mbeyao 1md Mr o Mwakolo', learned counsel; ·argued the application on behalf of the applicant. ~•lro Mushokorwa-, ·1earned counsel, did so on behalf of the respondente In his affidavi tal evidence Victor Nemes· Jv'iassawe swears that he on ·19th November, 2001, discovered that·the proceedings before t'he trial Court and before this court in the exercise of· its appellate corirt were impliedly invalid contravened beca:use the . · the provisions of section 9 of the Bankruptcy Ordinance. He swears further that he did not act promptly because he was unaware of the /2 \.._ existence of the la.w which governs the applicant as a specified public corporation in term of Government i'Jotice No. 543 of 1997 which was promulgated under the Public Corporations Act, No. 2 of 1992. ':i.'h.at the delay was not occasioned by negligenceo ·The rest of the contents of the said affidavit are wholly irrelevant to this application. Angohlisye Y.:yambakimpokile iviwambona swears in hif:; counter affidavit tha.t the laws referred to by t!1e. appJ,;Lcant ar·e inaplicable to these proceedings a.s they were instituted th'O years before the respondent company wa.s declared a. specified public co~poration. In addition to the affidavit· ·1;1.nd the cot.mter affidavit there also what are entitled supplementary counter affi6:avi ts and reply to supplementary to counter ,. affidavit which do not cite.legal provisions under which they are made. To that extent they are invalid and cannot constitute evidence in support or against the application. I will not, therefore 1 consider themo t-ir. Hwakolo, learned ccunsel, was fairly breaf in his opening addre 9 s. He submitted that even though the applicant was not a specified corpora,tion when the suit against her was instituted,· the respondent was by la,., r~quired to apply and ge.½_ le.ave of the High Court :La ord~r to further maintain .his suit in courto He did not cit~ any provis~ons in _the Public Corporations ..:\.ct, Noo 2 of 1992. which create2 retro.spective application of Act Noo 2 of 1995 as read with Cap. 250 Lear:µed counsel does not show.expressly that the delay was occasioned by sufficient or reasonab~e cause, unless it be implied from.the language thc:t is employed in the submissions., Of course subniissions which are statements made at the Bar do not constitute evidenceo hr. f'iushokorwe.. submits ~hat in as much as the application for revie\v is time barr~d it should be struck outo It is his further contention that no good nor sufficient reason has been advanced for the delay of 68 days in lodging this applicationo i.1. party who comes to Court, he says 1 must do so without unnecessary delay and must display dilingence and prom)tness in his attempt to rectify the anornalyo iie derives authority for his proposition from the principle /3 4 'l'he affidovi t of Victor Nemes Massawe does not have a ; ingle para,eraph which explains away the delay. All it contains ore grounds 1.rhich the applicant puts I forth as justification for th_e appiication for review 9 the affid2.vit do~s no . . more than creating the platform for arguing that the t· 'O judgments cont a.in errors which may only be remedied by way of e review. Put in another way, in order to succeed in an application such as this one., the applic::mt must satisfy the statutory requirements contained in section 11+(1) of t::1e Law of Limit,;1tion Act, 1971 under which the application is brought. It provides thus:- :, ( 1) Notwithstanding the provisions of this L:~t, the court may, for any reasonable or ·sufficient cause, exten ..l the period of limitation foe:' _the institution of an appeal o:c· an application, other than an application for execution of a. z~ecree ••••• ,; o '11he operative words are ·'• •••• any sufficient or rea.so•1able cause... Hone of learned counsel has discussed this very inportant fact:,r. I will therefore do As by law provided an application st: ch as the on·~ before me E1ay be E!llowed if one of two conditions, or if both condj tions, have ·)een fulfilled. The I applicant has to show that the delay was ceused by ;;an"r reasonable causeL or ,;by t _.j any sufficient cause" ··6efore- he can SUCCef,d. 'l'he expr ,ssions ::sufficient cause··-- or ;,reasonable cause·· ::::ontemplated in seci.ion 14( 1) of the Law of Limitation Act are very wide and cj_uit8 comprehensive in their meaning. I will not, therefore, . pretend to assign, any particular meaning -~o themo -The best approach, in my view, is to give them· a liberal construction. i3o generally .5peaking both expre::ssions are directed to secure one objective, and that is the 3.ispensation of substantial justiceo 'rhey me.?tn, in a effect, a cause or causes wr., '..ch are beyond the control of the party ''l.i1c1king the application.. R. Viitra on Comn1 ~ntaries on the·_Limi ta.t:\:2_n • Act ( of' India) , 1~th Edition, says at page 99 of his wo·.~k that the - e O O O 0 test, whether or not o cau..se is suffi ::ient, is to see whetl'rer it is a bcma fid.e cause, inasmuch as 1othing shall be taken to be done bona_fide or in :;ood faith 1-.-'lich is not done v..rith due care and attention O O O. O i·lh~n no nee;ligD"lCe nor inaction nor want o.f bona r_ges is imputed to a party for ·::he delay in filing an · · :appeal it \-JOUld constitute a. sufficient cause ~ •• a.·.~. /5 propounded by the Court of Appeal of Tanzonia in Sh~bh 1y Vs. Tanga Dohora (1997) 1997 'l'LR 305 where the Court held that 14- days delay w JS inexc;;8 able because the applicant had n0t acted with rea_sonable dilingence ancl promptness in filing his application for extension of time. He contends that t1at principle or approach binds this Cou:~t notwi.3tanding the fact that it was pr,1pounded in a matter before the Court of Appeal, because in both provisions empowerLng the Court of Appeal (rule 8 of the Court _of f.i.ppe?]. rules, GN 102 of 1972) .:ind tb_~ High Court (Section 14( 1) of the law of limitation, Act Noo 10 of 1971) the consi..deration is the same, that is the Applicant must show sufficient or reasonable ca-1se/reason. Learned counsel observes that the Applicant a.dvanced no reason or caus·; why he did not take the trouble to file the ar,?lication between 1L~/9/2001 and ~2/11/2001 o agrees \1/hile he t':lat TAN.ESCO is now under receive :-ship, the other fact is that the s:::.id company was not y0t unde·r receivership v1 .1en the suit· was filed before the District Courta For this reason he submits that the provisions of the Bankruptcy Ordinance can not apply to tha.i: suit. If Hr. J\lusl:iokorwa has made the further point th&; the foregoing argument does not buy favour of this Court, the Applicant is 1:;opped from question the validity of judgments of both courts since he did not ·:-aise any objection there and then .:it the trial., 'I'he doctrine of equittable est-)ppel precludes such legal objections on appeal if not raised at the trial as per- Court of .4ppesl decision in RaJ.m:1-t Vs,,. ~--~_.:...:.,.:. Mrs ~ u t ( 1988) TLR 96 and a dee i.sion of this court in NBC Vs Ihsasi. i'-!danw. ( 1997) 'l'LR 282 .. · l<urther on .he pned the question whether the provisions of sectioI). 9 Ca1, 25 apply to appeals. ,~:f; is his view that they do not. They should be confined to the institution o:i a suit and perhaps t•~- a.pplications .. Those were tl1e 2rgumen.ts. I will n<)v consic~er " 1ether the applicati~n is or is not sustaino.ble. . I have perused the affidavital evidence that waE pr~ferrcd in support of the application but I really car?.not see ho,;-.r th~ Dp:plic mt accounts for his timeo" 0QQ0UQGOQ /4 d • "' 5 :!'he foregoing observations v1ere derived f:::-om the Supreme Gourt of India when delivering judgment in .J?.~Jlaj?~~1l~~~_,§1~.Y.!_-J~~!:'!.,C?.£i!i~}~M A~I.R 1954 SC 411 a.t p. 4-140 Tha.t court held thus:- ·•As was observed in the Full Bench decision in &}~!.~~ .9E.,a1_h1.1:e_an. (I.L.R 13.Via.d 269) in a passage, \·1hich has become classic, the ... _:yJOrds . . . '. I Sufficient cause I . should receive a. liberal con,,struction so as to advance substantial justice when ·no negligence nor ina.ction nor want of bonafi.de~s is imputed.. to the appella:'1t. :; Now in.order to determine that there a sufficient or reasonable cause the Court must address itcelf on two very important factors. Firstly, the applicant must give an account for day-to-day; s delayo Secondly, the fundamental principal of the law of limitation that - the rules of limitation are intended to induce claimants to be prompt in claiming relief and, unexplained del·ay or -la.ches . on the part of those who are expected to be aware and conscious of the legal position and who have facilities for proper'· legal assistance, can hardly be encouraged or countenanced.,·: (p. 103 of R. Mit:ra.' s commentaries, supra) o Back home there is the· decision of the Court of Appeal which was cited by Vi.I'~ Mushokor.wa 1 learned. counsel., ~ ,J)r. __ All~§iha)Jhc1,Y v,_ Tan..&a, Bohora½ Jama.at ,. ·,.· (1997) 'I'LR 305 .._' In that case the applicant failed to file the notice •f whieh "x:~appeal so she appli~d/ for enlargement· of time within to do so under .Rule· L ... 8 a.?-~ ~~t.? Court -.of ii.ppeal TIµles ~ 197~ liShich conf ei:s }X)wer .en the '~-- of Appeal_, -where ~i..-"'i..e.n±. ret,son is shown, to- extend :.time wit..b.in wlu.Ph +;d..do- so. It pj_~ovider, th~ ~ative part only:- . ';8 ~ The court tliay 'f~ "'Sl.lffj,c.i~ limited _by these Rules ........ ; . ,j . . The Court of Ap:Jeal, ;:;amatta. 1 J'l\•. a& he then was, held tha.t :- ,ir have carefully consider-ea the CQ.lllpeting arguments and in the end I hav~ rea.ched the conclusion that no besj.s. b.as been shown in this a.ppl:iJ::.a.ti.oll why the extention of time sought .sko.uld be granted. As rightly submitted by Nr. Viaira., in the affidavit S\~or.n in suppert of the appli.c.ation no explanation whatever is given why it took..:c- l.cw:lg .to. in..'3<b:uct- i'b-o IW,urtga. to lodge a cross-appeal o •••• \" ... oo,ooeAoo•o /6 6 3y and large, I a111 sutisfied that the applicant has failed to show that she was prevent to make application for rcvie~.,r by legally acceptable grounds. .. She has utterly failed to show that she has sufficient or reasonable cause for the delay_. I would, in ..."ne - end, dismiss this application • Apart from arguing the application for extention of time 1t1ithin which to institute a_n application for review Mr. !·iushokorwa, learned counsel, went on to- argue the application for stay of execution. . . . . ' . 'I'his applic2tio:n is yet to be argued. Upon the reasons and observations given ancl made in this ruling, the application for extention of time within which to lodge an application for review is dismissed with costso Deliver.edo er. Mo HACK.ANJA JUro_;_;_;. -3/12/20020 l'fr. Mwakolo, Advocate: . \• ~ For io.pplic·a,':'lt. • l'1r~ Lbogoro/Mr.c Viushol-:.o'rvm_, A&.v9cate; E'or .Respondent. - . /--- ., "·~- ·:-:~- :;--\t~-=~~;~~--:-:<•~"~-- . , ; . c.~--- -J~_I;?J-'ll:f£s.1lll).}.Ifa1'.~.... --· ·-::-..._,.. . .... !..-t.: ...