20151023 TZHC Arusha2

IN THE HIGH COURT1 OF TANZANIA AT ARUSHA MISC. CRIMINAL APPLICATION NO. 10 OF 2015 I (Originating from Babati District Court Criminal Application No. 5/2013 Org. Magugu Primary Court, Criminal Case No. 144/2012) . I , I I . ANGRESI LANTA AWAAKI. ................ ,............................ APPLICANT VERSUS I J AKONAAY ZIDAWE ... ■■■ I •••••••••••••••••••• J••••• ■■■■■ ••••••••••••••• RES PON DENT I Date of last Order: 02/09/2015 I Date of Ruling: 05/10/2015 RULING l MASSENGI, J The Applicant ANGRESI LANTA AWAAKI filed a Chamber Summons I before this court made under the provisions of section 25 (1) (b) of the Magistrates' Courts Act, Cap. 11 R.E boo2; applying for the following o~e~; j ' (a) That, this Honourable Court be pleased to grant an order for I extension of time to file petition of appeal out of time. ' (b) Any other order as the Honourable court may deem fit and just to grant. This application is supported by ~ffidavit of the Applicant ANGRESI I LANTA AWAAKI. The Applicant prayed this application be argued by way of , written submission and the respondent consented hence this court granted 1 the prayer. The Applicant was orderea to file her submission in chief by 14/9/2013, the respondent to file his !reply submission by 21/9/2015 and rejoinder if any to be filed by 28/9/2015. Both parties complied with the · scheduled order. I Arguing the application, the applicant submitted that this matter t I originated from Magugu Primary Coui in Criminal Case No. 5 of 2012 in which the decision was entered in the respondent's favour. Being I dissatisfied with the decision, he appealed to before the District Court of - I Monduli where he was represented by Advocate Lundu. After being engaged by the Applicant, the Applicant's counsel with unknown reasons was not appearing before the court, ~nd he further mislead the Applicant 1 on the scheduled date for attending the court sessions; following that the appellate court decided to dismiss the suit for want of prosecution. Following the said dismissal order, the Applicant applied for restoration of ; the appeal in order to be heard on merit. The first appellate court dismissed the application on the grdunds that there were no sufficient I reasons adduced to convince the court to restore the suit. He further . submitted that, the applicant being a l1ay person, after the delivery of the said ruling she just sit at home without taking any further steps to pursue ' her matter as she thought that ruling lvas I final and conclusive hence could ' not be challenged in other courts. After getting advice from the neighbours with knowledge on legal issues, she realized that the said decision could be appealed to the High Court, but by thJn she was already out of time as the law requires the petition of appeal td be filed within thirty days from the date of delivering the judgment hehce this application. Basing on the 2, above, it was stated that the applicant• has sufficient reasons for being late and prayed this court to grant his application. I I In reply, it was submitted that t~e issue raised by the applicant that ' she is a lay person need no consideration as the applicant engaged an I Advocate to follow up her matter during the hearing of her appeal in the I . District Court. He further stated that the applicant stated that she got an advice from her neighbours who have· knowledge in law, surprisingly why I didn't she contact her Advocate in orqer to advice her what to do. Basing on the above, he prayed the application be struck out and the decision of the first appellate court be upheld. I have considered the submissions from both parties. It is a common 1 principle in law that the discretionary powers to extend time may only be I exercised if the applicant has shown sufficient cause or reason for such delay as stated in the case of MUMELLO Vs. BANK OF TANZANIA [2006] 1 EA 227 (CAT) that; ''It is· trite law that an application for extension of time is entirely in the discretion of thk court to grant or refuse it and that extension of time Jay only be granted where it has been sufficiently established that the delay was with sufficient cause." Considering that position of the law, now I the issue before this court is to consider whether the applicant has shown sufficient reasons to justify her I delay to file appeal within time. Having gone through the applicant's ! affidavit together with the submission in support of the application, the main reason advanced by the applica:ht for the delay is that following the I ' I 1 . I dismissal of an application for restoration of the appeal, being a lay person she was unaware of further steps to puisue I her matter until she got advice from neighbours who has legal knowlJdge is when she realized she can I appeal against the decision of the Dlistrict Court but at then she was already out of time. The applicant hereih is trying to plead ignorance of the law that being a lay person she never Iknew what procedure to persue in order to challenge the decision of the District Court and she became aware I after being advised by neigbbours but by then the time had already lapsed. I To me I find the reason advance by the Applicant does not amount to I sufficient cause basing on the reason Ithat, it is very certain in law that ignorance of the law is not and has never been a defence, as such the same cannot constitute a sufficient rJason to justify the delay. See the case of TANZANIA PORTS AUTHORITY VS. MS. PEMBE FLOUR MILLS LTD, CIVIL APPLICATION NO. 49 OF 2009, Court of Appeal at Dar es Salaam (unreported) wher¢ it was stated that; 11 This court, has repeatedly said I that ignorance of law cannot constitute sufficient cause for the purposes of I Rule 8.... ✓, I That being the position, I therefore find that the applicant has failed . I to show sufficient reasons in order to justify the grant of her application I and I hereby dismiss this application with costs. Order accordingly. l I .(SGD) F.H. MASSENGI JUDGE 15/10/2015 Ruling delivered in Court this 15th day; of October, 2015 in the absence of both parties. (SGD) F.H. MASSENGI JUDGE 05/10/2015 · I hereby certify this to be a true copy of the original. DE~ REGISTRAR ARUSHA Words 1,012 l ~3 c~ tJ-- 5