20100705 TZCA Dar es salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MBAROUK,J.A., LUANDA,J.A. And MJASIRI,J.A.) CIVIL APPLICATION NO. 52 OF 2009 AMO-U.R HABIB SALIM ................................................................. APPLICANT VERSUS HUSSEIN BAFAGI .................................... -................................. RESPONDENT {Application for Extension of Time for Revision against the Judgment of High Court of Tanzania at Dar es Salaam) (Oriyo, J.) th dated 29 day of December, 2005 in Civil Appeal No. 274 of 2001 RULING OF THE COURT 22 nd March, & 14th July,2010 MJASIRI, J.)\: This is an application for extension of time under Rule 8 and Rule 3(2)(a) and (b) of the Court Rules,1979. By a Notice of Motion filed on April 21, 2009, the applicant Amour Habib Salim is seeking extension of time to file an application for revision in respect of the judgment of the High Court of Tanzania in Civil Appeal No. 274 of 2001. 2 The applic:~tion js supported by the affidavit' of Ms. Hamida Sheikh, learned Advocate. Paragraphs 2,3,4, and 5 are relevant for our decision in this matter and we hereby reproduce them as under:- " 2. That the applicant was an objector in objection proceedings filed in the Resident Magistrates Court to challenge the sale of a house on Plot No. 113 Block ;~ ,.,. Temeke/ Dar es Saiaarn a sale which was conducted with the Order of the Court,. and the present respondent was the 4h respondent in the said application. 3. That after the inquiry,. the Resident Magistrate's Court found for the applicant and the respondent who was not satisfied with that finding/ decided to challenge the decision by way of / an appeal. 4, Th.at .$l!.P~?..Q1/._e.atfy,._JfJg__re_spq_aqe_nt fi/~cl an_ap12.gc1IJQ_ the~ Hig!J _____ _ Court of Tanzania to challenge the decision of the Resident Magistrates Court on objection proceedings and the appeal was registered as Civil Appeal No. 274 of 2001. 3 5. That the Respondent had no right of appeal and the Court was not competent to entertain it but the High Court went ahead and heard the parties on appeal. The said appeal was in a judgment by Madame Justice Oriya (as she then was) delivered on 2!fh day of Decembe0 2005" ..../ i The 2pplicanf vias represented by Mf~Rithard Rweyonge1i1, iearned Advocate and the Respondent was represented by Alhaj Said EI-Maamry learned Advocate. The central issue for consideration and determination 1s whether sufficient reasons have been advanced to warrant the extension of time sought by the applicant. ) .. _ Accordin~ to Mr. _Rweyongeza, th~. appli~Eltion for revision 1s intended to correct the error committed by the High Court in allowing an appeal which was filed by Resprn ldent who was not a party to the suit in the Resident Magistrate's Court. Mr. Rweyongeza stated that, the Respondent was the objector in an objection proceedings filed in the said \ 5 further that the issue of illegality was never raised before the High Court. According to him the applicant failed to take appropriate steps. After taking in consideration what has been stated in the affidavits filed by both the respondent and the applicant and the submissions made by Counsel, we would like to make the following observations. Rule 8 of the Cc'.Jrt of Appeal Rules 1979 confers the Court with wick~ discretionary C) powers to grant extension of time where there are special ci1·cumstances. In the case of Principal Secretary, Ministry of Defence and National Service v Devram Valambhia [1992] TLR 182 it was stated as under: ''In our view when the point at issue is one alleging illegality of the decision being challenge~ the Court has a duty, even tf it means extending the time for the purpose to ascertain the point and if the alleged illegality be establi:;he~ to take appropriate measures to put- the matter and the record right'~ 6 The position was reiterated in VIP Engineering and Marketing Limited . an'1 Three Others v Citibank Tanzania Limited, consolidated Civil Reference No. 6, 7 and 8 of 2006 CA (unreported) where it was stated thus: "We have already accepted it as established law in this country that where the point of law at issue is the illegality or otherwise of th? decision being challenged that by itself constitutes "sufficient reasons// within the meaning of rule 8 of the Rules for e✓-i-:tending time// In view of the fact that there is an alleged illegality on the procedure followed in respect of a decision arising from an objection proceedings, we find it appropriate to allow the application on the basis of this point so that the issue may be considered. For the reason stated here in above, the application is granted. The application for extension of time to file an application for revision must be 7 filed within a period of fourteen (14) days from the date of delivery of this Ruling. Costs will be. in the cause. It is so ordered. DATED at DAR ES SALAAM this 5th day of July 2010. M.~.MBAROUK JUSTICE OF APPEAL B.M. LUANDA JUSTICE OF APPEAL S. MJASIRI · JUSTICE OF APPEAL I certify that this is a true copy of the original.